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[2016] ZAFSHC 3
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Immaculate Truck Repairs CC v Capital Acceptances Ltd (1153/2014) [2016] ZAFSHC 3 (14 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1153/2014
In the
matter between:
IMMACULATE
TRUCK REPAIRS CC
Plaintiff
and
CAPITAL
ACCEPTANCES LTD
Defendant
CORAM:
RAMPAI, J
HEARD
ON:
17 NOVEMBER 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
14 JANUARY 2016
[1]
These were action proceedings. The plaintiff caused the summons
to be issued against the defendant on 13 March 2013.
The relief
sought was payment of the sum of R136 287.48, interest thereon
at the rate of 15.5% per annum a tempore morae and
costs. The
action was defended.
[2]
The hearing started on Tuesday 17 November 2015. The plaintiff
led the evidence of Mr Stanton, its expert witness.
After his
testimony the plaintiff closed its case. The defendant did not
open its case. Instead it applied for an order
of absolution
from the instance. The ground on which the absolution
application was based was that the plaintiff had not
proved the
enrichment of the defendant. The plaintiff signalled its
intention to oppose the application.
[3]
The plaintiff’s counsel was not ready to instantly argue the
matter. In view of that, the plaintiff requested that
the
matter be postponed to enable its counsel to prepare and file written
heads of argument. I acceded to the plaintiff’s
request.
Consequently I fixed a deadline for the filing of heads of argument
by the plaintiff, granted the defendant leave
to file further heads
of argument, if so advised, directed that there would be no further
oral argument, postponed the matter
sine
die
,
and ordered the plaintiff to pay the costs occasioned by the
postponement.
[4]
The plaintiff filed its original heads of argument on 1 December
2015. The defendant filed its heads of argument on 2
December
2015. The plaintiff supplemented its original heads and filed
its supplementary heads on 2 December 2015.
The defendant filed
its heads of argument in reply on 14 December 2015.
[5]
Mr Du Plessis, counsel for the defendant, submitted that the
plaintiff had adduced no evidence to show the enrichment of the
defendant or evidence to prove the quantum in the event that there
was enrichment shown. Therefore, counsel urged me to grant
absolution from the instance with costs.
[6]
Mr Olivier, counsel for the plaintiff, differed. He contended
that the plaintiff had provided more than sufficient evidence
to show
that it incurred necessary expense in order to preserve the
plaintiff’s motor vehicle. He then submitted that
the
defendant had, therefore, been enriched at the expense of the
plaintiff. Accordingly counsel urged me to dismiss with
costs
the defendant’s application for absolution from the instance.
[7]
I have considered the evidence and the argument. The undisputed
evidence of the plaintiff’s witness was that the
plaintiff and
a third party, Touro Trucking (Pty) Limited, concluded an oral
agreement; that the plaintiff had to do certain repairs
to the truck;
that the plaintiff was only required to repair but not to preserve
the truck; that the plaintiff, on its own accord,
towed the truck
from the roadside scene of the breakdown to its premises where the
truck was repaired; that the plaintiff performed
the necessary work
in order to repair the engine of the truck; that the plaintiff
incurred certain costs in connection with the
purchase of spares and
the towing of the truck, and that such costs were useful expenses.
Mr Olivier argued that since the
defendant, as the owner of the
truck, was thereby enriched and the plaintiff impoverished, and that
those costs were implicitly
necessary expenses and therefore
claimable.
[8]
At this juncture, I am not persuaded that there is no
prima
facie
case of enrichment for the defendant to answer. I would,
therefore, dismiss the defendant’s application for absolution
from the instance.
[9]
I make the following order:
8.1 The application
for absolution from the instance is dismissed with costs;
8.2
The plaintiff is directed to immediately set the matter down again
for further hearing.
______________
M.H.
RAMPAI, J
On
behalf of the plaintiff: Adv. J. L. Olivier
Instructed
by:
Saffy
& Associates
BLOEMFONTEIN
On
behalf of the defendant: Adv. D. T. v R. du Plessis SC
Instructed
by:
J L
Jordaan Attorneys
BLOEMFONTEIN
/EB