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[2016] ZAGPPHC 1
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Legadima Garden Services CC v Lightstorm Electrical CC (36158/13) [2016] ZAGPPHC 1 (5 January 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 36158/13
5/1/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
LEGADIMA
GARDEN SERVICES
CC PLAINTIFF
and
LIGHTSTORM
ELECTRICAL
CC DEFENDANT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
This trial was heard over a period of three days, 16 February 2015 to
18 February 2015 and the parties argued on 25 March 2015.
The lengthy
delay in providing the judgment is attributed to the fact that the
file was misplaced and a duplicate file had to be
obtained. My
apologies to the parties for the delay and inconvenience that may
have been caused.
THE
EVIDENCE
[2]
The case revolves around an oral agreement concluded on or about
September 2012 between Mr Wim Viljoen (Viljoen), of Legadima
Garden
Services CC and Mr Joseph Jeremia Lombard (Lombard) for Lightstorm
Electrical CC. The agreement involved the sale of a used
Hitachi
front end loader (front end loader), that the plaintiff purchased
from the defendant.
[3]
The plaintiff s action is based on the
action empti
which
allows a purchaser to either cancel the agreement and /or claim
damages. The plaintiff claims that the defendant breached
the terms
of the agreement in that the front end loader was found to be
defective and not suitable for the purpose purchased. As
such, the
plaintiff argues, there was a breach of the warranty against latent
defects.
[4]
It is common cause that the purchase price of the front end loader
was R180 000.00 plus vat of R25 000.00 which was paid
by the
plaintiff. Lombard drove the front end loader for 8 km in order to
deliver it to Viljoen's and afford him with a demonstration
on his
premises that lasted five hours.
[5]
The plaintiff pleaded that Lombard was a dealer and made himself out
to be an expert of such goods such as the front end loader.
Further,
Lombard warranted that the goods were free of any latent defects and
were suitable for the purpose so purchased.
[6]
The defendant specifically pleaded that there were no latent defects
and the goods were in good working order when delivered
to the
plaintiff. A five hour demonstration was given and the plaintiff even
had his own mechanic inspected the front end load
before he took
possession of it. The defendant pleaded that the goods were sold
voetstoots
and there was no duty on the defendant to repair
the goods. The defendant also denied that it was a dealer in front
end loaders
and like machinery.
[7]
The plaintiff claims damages for the fair, reasonable and necessary
costs incurred to repair the defects which amounted to R72
987.01. A
further amount estimated at R90 000.00 is claimed for repairs that
would arise after further investigate are conducted.
[8]
Viljoen testified that he saw the front end loader on Lombard's
premises amidst other vehicles. He attended on Lombard's premise
three times to view it before purchasing the front end loader. He
confirmed that Lombard drove the front end loader for about 8
kilometres to his premises. Lombard did conduct a demonstration on
his premises in the presences of his friend, Mr Sievwright
(Sievwright).
[9]
Whilst the demonstration was being conducted by Lombard the front end
loader ran out of diesel and had to fetch more to refill
the front
end loader after which the demonstration resumed. The demonstration
ended when the front end loader drove over a tree
stump which caused
one of the tyres to be deflated. It was then driven into the shed
where it was inspected by both him and Lombard
where it was noted
that there were minor leaks.
[10]
The front end loader then stood on his premises for two weeks before
he was able to obtain a tyre to
replace
the deflated one and only started
using it in December 2012.
During the period that
the front end loader stood on his premises he paid the first portion
of the purchase price of R180 000.00
on 26 September 2012 and the
second payment of R25 000.000 on 11 October 2012.
[11]
His operator used the front end loader for the first time in December
2012 when he operated it for only 3 hours when it started
steaming.
His operator attributed this to the radiator overheating. Viljoen
said he instructed the operator to stop using it and
obtained the
assistance of Mr Vermaak (Vermaak), a diesel mechanic, to check it
out in December 2012.
[12]
Vermaak testified that the defects he found on the front end loader
were indeed latent defects. He testified that as he worked
one
problem more problems were discovered. He states that in January
2013, he and Viljoen paid Lombard a visit to advise him of
the many
problems that they had encountered. He further states that the front
end loader was definitely not suitable for the purpose
Viljoen had
intended it for. As regards the computation of the invoice of R90
000.00 this was only done in March 2013.
[13]
Mr Sievwright, a friend of Viljoen, was present when the front end
loader was delivered to Viljoen. He testified that to him
the
demonstration by Lombard in moving concrete bricks on Viljoen's
premises only took 2 hours.
[14]
Mr Lombard testified that from time to time the defendant would sell
earth moving equipment and as such had bought the used
front end
loader from an auction sale and was not told the history of the front
end loader. The front end loader was sold to him
voetstoets
thereafter he drove it for 20km to his property. On arrival at
his premises all he needed to do was hose it down as it was clean
and
neat. He was adamant that the demonstration on Viljoen's premises
moving quite a sizable amount of tree trunks took 5 hours.
[15]
The front end loader was moved to Viljoen's shed after it experienced
a deflated tyre. Lombard, Viljoen and another gentleman,
whom he did
not know, walked around the front end loader and note that there were
no major leaks. At this stage, to his mind, the
deal was almost
concluded but for affording Viljoen an opportunity to get his own
mechanic to inspect it.
[16]
He confirmed that Viljoen effected payment as he did and this
concluded the deal. He stated that Viljoen and other gentlemen
attend
on him at his premises sometime in January 2013. This was a heated
confrontational meeting as he felt threatened by the
Viljoen.
[17]
He stressed that there was no warranty with the purchase and that the
warranty clause that appeared on the invoice was applicable
to the
generators which were sold by the defendant. He was adamant that he
had advised Viljoen that there was no warranty and that
it was being
sold
voestoets.
[18]
To questions posed about the warranty, he stated that if there had
been one it would not be operative, as Viljoen had already
obtained
his own mechanics to repair it prior to coming to him to attend to
any repairs that were necessary under the warranty.
THE
LAW
[19]
Adv Killian, for the plaintiff, argues that the action of the
plaintiff is based on the
actio empti
and that at the very
least an implied warranty against the latent defects was given by the
defendant.
[20]
Van Der Merwe v Meades
1991 (2) SA 1
(A)
dealt with the issue
of an action based on the
action empti
and in the headnote the
following is stated:
"A seller will be deprived of the
protection afforded by a voetstoots clause where the purchaser can
prove that the seller
(1) was aware of the defect in the
merx
at
the time of the making of the contract and (2)
dolo mafo
concealed
its existence from the purchaser with the purpose of defrauding him."
[21]
A seller may be able to hide behind the
voetstoots
clause
between the parties only if he/she is not a merchant/ manufacturer of
the goods so sold or where the seller was not aware
of the defects
and as such did not conceal them from the purchaser or where no
warranty, expressly, impliedly or tacitly was given
to the purchaser
by the seller. The available remedy for the purchaser is that of
cancellation (in terms of breach of contract)
and damages.
LATENT
DEFECT
[22]
A latent defect was described in
Ciba-Geigy (Pfy) Ltd v Lushof
Farm (Pfy) Ltd en 'n Ander
2002 (2) SA 447
(SCA) at para {48]
:
'In
Holmdene Brickworks (Ply) Ltd v
Roberts Construction Co Ltd
1977 (3)
SA
670
(A)
word 'n
verborge gebrekop 683H omskryf as 'an abnormal quality or attribute
which destroys or substantially impairs the utility
or effectiveness
of the res
vendita,
for the purpose for which it has been sold
or for which it is commonly used'."
THE
PLEADINGS
[23]
The defendant specifically pleaded that the front end loader was
delivered on 17 September 2012 on the special instance and
request of
the plaintiff. That as per the oral agreement a demonstration which
lasted five hours was given to the plaintiff. The
front end loader
was inspected by the plaintiff's own mechanic and retained by the
plaintiff after the demonstration. The front
end loader was used for
two weeks before the first payment was then effected by the plaintiff
thus the front end loader was suitable
for the purpose intended by
the plaintiff, however the plaintiff instead used the front end
loader as a bulldozer.
[24]
Of importance is the defendant's plea that the damages caused were
not latent and were in fact caused by the plaintiff's miss
use of the
front end loader and due to the plaintiff's own actions.
[25]
The plaintiff disputes that the length of time of the demonstration
as being five hours. On the plaintiff's own witness's version,
Sievwright, the demonstration could not have been more than two
hours. The plaintiff denies that the front end loader was used
for
two week and persist with the contention that it remained in the
position that defendant had left it in the shed until a tyre
could be
obtained. This was only obtained after the two week period, when his
operator used it for the first time.
ANALYSIS
[26]
I am mindful of the warning sounded out that pleadings are for the
court and the court not for the pleadings and that a court
will not
necessarily have regard to the exact terms of the pleadings, but
rather the substantial issues between the parties. See
Harms Civil
Procedure in the Superior Courts (LexisNexis) at B-138; McCarthy Ltd
tla Budget Rent
a
Car v Sunset Beach Trading 300 cc tla Harvey
World Travel and Another
2012 (6) SA 551
(GNP) at para [11].
[27]
In this instance the case made out by the defendant differs
materially from that advanced in his testimony before court. As
set
out above the defendant pleads that the plaintiff bought the front
end loader for the purpose it was intended however due to
the
plaintiff s misuse the damages ensued.
[28]
However, in evidence the defendant places reliance the front end
loader having been bought
voestoots
and without any warranty.
Thus, the defendant had no obligation to repair the front end loader.
Further, even if there was a warranty
the plaintiff did not give him
the first opportunity to repair the damages.
Lambard
evidence:
"I delivered the machine to
you, I gave you two weeks to test the machine, get your mechanics,
you bought it voetstoots, you
had more than enough opportunity to
make up your mind before you purchased this machine. I told you where
the machine comes from.
I did not have any record of the history of
the machine. And we sold it 'no duty to repair'."
[Page 207
of the record lines 11-18]
[29]
Adv Kruger, for the defendant, argued that even though Lambard's
testimony does not conform with the pleadings his testimony
was
truthful and consistent, in that, he had not varied from his verbal
evidence. Iagree with the argument that, yes indeed, Lambard
did not
vary his verbal evidence and was consistent in his testimony that
differed from the pleadings itself.
[30]
From the proceedings it is evident to me that the defendant had
broadened the ambit of his defence. Viljoen had not been granted
an
opportunity to deal with these other than by way of cross-examination
of the defendant and in closing argument. In enlarging
his defences,
in these circumstances, I am not bound by the pleadings, and propose
to deal with all the issues before me inclusive
of the defences
raised in the defendant's testimony, as I am duty bond to ensure that
the issues between the parties are dealt
with, without prejudice to
anyone of the parties.
[31]
Adv Killian argues that at the least an implied warranty was given by
the defendant in that he knew for what purpose the front
end loader
was being purchased and confirmed that it would serve the said
purpose. The defendant even took time out to demonstrate
the workings
of it and in doing so he gave himself out to be an expert and having
knowledge of its workings. Further, the defendant's
admission that
it traded in the such machinery from time
to time, the fact that Lambard had a keen
eye to spot a 'steal' of a
deal and his special knowledge of the machinery, cumulatively, it was
argued, bring about an implied
warranty having been issued.
[32]
To me from the evidence of Lambard it was clear that he was well
conversant with this type of machinery. He knew of the price
ranges
of a new front end loader as opposed to a second hand one. He was
also well versed in the mechanical workings of the front
end loader
as he operated it for five hour when he conducted the demonstration.
He testified that he conducted this demonstration
as knew he had to
show Viljoen that the hydraulics was in working order and that
Viljoen ought to hear the motor running and that
it was in driving
condition. At Page 198 of the record lines 3-5 " ...
The
hydraulics was working fine, because you have got to lift the bucket
up, and the brakes is working hydraulics, the gears is
working
hydraulics"
.
[33]
This, in addition, to him having the knowledge that he had got the
front end loader at 'steal' pricewise is a clear indicator
that he
had the specialised knowledge of these machines which he sold from
time to time. With this background it would be fair
to say that he
was a dealer of these machines and the like.
[34]
Once it is established that he is a dealer in the good the implied
warranty kicks in and as such the plaintiff has the
action empti
at its disposal. I am in
ad idem
with Adv Killian that the
defendant would not have gone through such lengths at its own
expense, if not to reassure Viljoen, of
the workings of the front end
loader.
[35]
To this end I refer to Page 201 of the record lines 6-9 where Lambard
states:
"He saw the machine, it is working, all the
hydraulics is working, it is lifting up the heavy tree trunks, I
am
pushing the tree trunks. He was happy with the machine. Everything
was working fine on the machine."
[36]
In the light of the defendant's conduct, resonating with that of a
dealer, does the
'voetstoots
and no duty to repair' defences,
hold any water in these circumstances?
[37]
KERR
The Law of Sale and Lease
at pages150-151 states the
following of
voetstoots:
"...a
voetstoots clause is
a
clause that stipulates that the seller is not to be held
responsible for the diseases or defects and goods are sold 'as it
stands'
or 'with all its faults'. The effect of such
a
clause
is that the seller does not take the risk of the presence of any
diseases or defects, but is liable for misrepresentations
of any
kind."
[38]
In my examination of the conduct of the parties, Iam incline to agree
with Adv Killian that the conduct of the defendant in
the sale does
not demonstrate that the sale was one of
voetstoots.
On his
own evidence he states that the auction sale being
voetstoots
only
permits the auctioneers to start the machine before one purchased it.
Lambard having brought the goods
voetstoots,
not have the
history and knowing that it could break anytime goes even further to
drive it for 8km and then give a full five hour
demonstration, leaves
it at the plaintiffs premises for two weeks for the plaintiffs own
mechanic to examine it and only seeks
payment after being advised by
plaintiff that the plaintiff s mechanic had looked it over.
[39]
This to my mind does not resonate with a
voetstoots
sale 'as
it stands with all its faults'. I agree with the plaintiff that the
only conclusion, on Lambard's own testimony, is that
the sale could
not have been by way of
voetstoots.
[40]
Likewise, with the defendant's reliance on the 'no duty to repair'
agreement between the parties, I do not find that the defendant
has
made out a case. The evidence of Lambard himself dispels this notion
where he states that Viljoen can't come some six months
after the
sale with an 'heck' of an invoice and seek that Lambard pay him for
that which he has expended as he had not even given
him an
opportunity to conduct the necessary repairs, as the seller.
See
Page 228 of the record lines19-22
"MR KRUGER: Where you
afforded an opportunity to fix this machine? Or to attend to this
machine?
---
No, My Lady. That was one of my concerns
afterwards. That I was never informed about any complaints or
breakages on the machine."
[41]
Has the defendant shown that the front end loader was misused by the
plaintiff, thus resulted in the damages as initially pleaded?
On
Lambard's own version he noticed the plaintiff use it occasionally
before payment was even made. In these circumstances if he
had front
end loader it is surely reasonable to expect that the machine would
have packed up sooner. In the circumstances this
evidence of the
Lambard is contrary to it being misused. Mention is also made by
Lambard that he witnessed the front end loader
on Viljoen's property
being utilised during October and November 2012 well after the two
weeks and that being the case if it was
being misused it would have
encountered problems before December 2012.
[42]
In the defendants plea it is stated that the machine was used as a
bulldozer however when Lambard testified he conceded that
he did not
see the front end loader being used as a bulldozer. In these
circumstances the defendant has failed to show that the
plaintiff
misused the front end loader.
THE
QUANTUM
[43]
The only evidence before me is that of Vermaak, the defendant does
not have any evidence to rebut this evidence. To me Vermaak's
evidence only substantiates the claim for R 72 987.01 and does not
make out a case for the future amount claimed of R90 000.00.
I say so
because Vermaak gives a clear account in his testimony of the work
conducted on the front end loader, the periods when
this was
conducted and the amounts for each task as is evident in exhibit V1.
He testified that he attended to the plaintiff s
front end loader for
the first time in December 2012 just before Christmas.
[44]
Vermaak tenders an explanation for the late submission of his
company's invoices, J C Earthmoving Machine Repairs, as reflected
on
V1. There are also invoices and proof of payments made of the other
amounts reflected on V1.
[45]
Whilst working on the front end loader he had made the vehicle safe
and was to return to work on it further when the operator
of the
plaintiff interfered with it attempting to move it after Vermaak had
secured.
[46]
In the circumstances I cannot exclude the fact that the operator may
have been responsible for the later work required as he
operated the
front end loader after Vermaak had secured the machine. Further to
the above Vermaak in his report also indicated
uncertainty as he
states
"Costs will be estimated on R90 000.00 but the machine
must be stripped to see what must be replaced and fixed."
This
is not setting out ones claim in a clear and concise manner as
required. In my view this claim must fail.
[47]
For the reasons set out above I find that the amount claimed of R72
987.01 has been established and proven by the
plaintiff,
however the amount of R90 000.00, being the
second amount claimed, has not been proven
by the plaintiff.
COSTS
[48]
With regards to the costs the costs are to follow the result. As the
plaintiff was successful in proving its claim, albeit
be it just one
of its claims, the plaintiff is entailed to costs on a party and
party scale.
[49]
The letter of demand was sent to the defendant on 18 April 2013. From
this date no response or defence was raised by the defendant
until
summons was issued and served on 13 June 2013.
[50]
Consequently the following order is made:
[1] The defendant is ordered to pay
the plaintiff an amount of R72 987.01;
[2] Interest on the aforesaid amount
at the prescribed rate per annum is to run
tempore morae,
to date of final
payment, both days inclusive;
[3] The defendant is to pay the
plaintiff s costs on a party and party scale.
____________________________
W
Hughes
Judge
of the High Court