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[2015] ZAGPPHC 569
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Glazing Botswana (Pty) Ltd v Royal Africa Truck Sales (51620/2009) [2015] ZAGPPHC 569 (11 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
51620/2009
In
the matter between:
GLAZING
BOTSWANA (PTY) LTD
Applicant
And
ROYAL
AFRICA TRUCK
SALES
Respondent
JUDGMENT
MATOJANE
J
[1]
Plaintiff instituted an action against Defendant claiming
cancellation of an agreement based on repudiation thereof and payment
of the purchase price in the sum of R150 000.00 plus
interest thereon and payment of the amount of R120 000.00 towards
damages plus interest thereon.
[2]
It is alleged in the particulars of claim, as amended that in August
2007 the Plaintiff, duly represented by its Managing Director,
Cuzen
Mesotlo and Defendant, duly represented by Mr Megs Moodley, entered
into oral agreement of sale in terms whereof the Defendant
sold to
Plaintiff two trailers being a double axle front link and tri-axle
rear link trailer.
[3]
It is common cause from the facts and the documents before court that
the purchase price payable by the Plaintiff to the Defendant
for the
trailers was an amount of R200 000.00. The Plaintiff paid the
Defendant R200 000.00 for the trailers. The Defendant did
not charge
VAT on the purchase price of the two trailers because they were being
exported to Botswana. Notwithstanding the fact
that the Defendant did
not charge VAT on the transaction it was agreed that the Plaintiff
should deposit with Defendant an amount
equivalent to the value of
the VAT pending export of the trailers.
[4]
The Plaintiff took delivery of the tri-axle trailer comprising the
rear part of the super link on 8 August 2007. The double
axle trailer
was not delivered, Plaintiff contend that the double axle trailer was
never ready for collection and Defendant on
the other hand contend
that the Plaintiff had failed to collect the trailer which was ready
for collection.
[5]
During April 2009 the parties concluded a second agreement in terms
whereof:
5.1
The double axle trailer was traded in on a tri-axle.
5.2
The purchase price of the second tri-axle trailer would be R150
000.00.
5.3
The Plaintiffs would pay the additional amount of R19 067.19 for
certain modifications and Tyres to be paid
on collection of the
trailer.
5.4
The double axle trailer would be traded in at a sum of R114 000.00,
being the original purchase price of
R100 000.00 and R14 000.00 VAT
deposit.
5.5
The Plaintiff would pay in the difference of R36 000.00.
5.6
The purchase price amounted to R150 000.00 being the trade
in of R114 000.00 on the double axle
trailer and the R36000.00. It
was agreed that Plaintiff would pay an additional amount of R19
067.19 for certain modifications
and tyres to be fitted to the
tri-axle trailer. The amount of R19 067.19 was payable on collection
of the trailer.
5.7
Defendant undertook to deliver the second tri-axle trailer to the
Plaintiff at the Defendant’s premises
on no later than 30 June
2009.
5.8
Pursuant to the second agreement Plaintiff paid the additional amount
of R36 000.00 and undertook to pay in
the R19 067.19 on
collection of the trailer.
[6]
The Plaintiff pleads that the Defendant breached the agreement by
failing to deliver or make available for collection the second
tri-axle flat-bed trailer by the end of June 2009 and further, failed
to deliver all the necessary documentation to enable the
Plaintiff to
export the trailer to Botswana despite having received payment from
the Plaintiff. The Plaintiff pleads that in consequence,
the
Defendant’s breach of the agreement constituted repudiation of
the agreement and the Plaintiff was entitled to cancel
the agreement.
[7]
In her plea, apart from putting Plaintiff to the proof of certain
averments, Defendant admits the conclusion of the agreement,
the
payment of the purchase price and the sum of R36 432.81. The
Defendant specifically pleads that he has complied with his
obligations
in terms of the contract by making the trailer available
for delivery at his premises, that it was the Plaintiff who breached
the
agreement in that the Plaintiff neglected to collect the second
tri-axle flat bed trailer from the Defendant’s premises and
/or
to effect payment in the sun R19, 067.19 being the costs of the
modifications requested by the Plaintiff. The Defendant pleaded
further that Plaintiff has failed alternatively neglected to pay the
R14, 000 due on the trade-in trailer which amounts remains
due and
payable.
[8]
In the counter claim, Defendant tenders delivery of the tri axle
trailer against payment of the amounts of R96 317.19 payable
to him
in terms of the agreement and payment of further storage costs
calculated at R50 00 per day from 11 December 2012 until
the date of
collection of the trailer, plus interest of the above amounts.
The
issues
[9]
The Plaintiff contends that it complied with all its obligations,
paid all the amounts due, that it attended to the Defendant’s
premises in order to collect the second tri-axle and pay the
remaining R19 067.00 but the Defendant breached the agreement by not
having the trailer available for collection.
[10]
The Defendant for its part, avers that Plaintiff never paid the
additional R14 000.00 deposit for the VAT on the double
axle trailer
and accordingly Defendant denies that Plaintiff complied with tis
obligations. The Defendant further contends that
Plaintiff never came
to its premises to collect the second tri-axle trailer and pay the
remaining R19 067.19 for the modifications
and that Plaintiff agreed
that it would pay the Defendant R50.00 per day in respect of storage
of the tri-axle trailer in the event
that it was not collected.
[11]
The central issue to be decided is whether the Plaintiff did in fact
pay the amount of R14 000.00 as pleaded and if so
whether or not the
Defendant delivered the trailer to the Plaintiff because that is when
the sum of R19 067.19 becomes due.
[12]
When, as in this case, the court is faced with two irreconcilable
versions, the proper way to determine the facts is
to consider the
credibility of the witness in conjunction with the probabilities in
order to determine where the truth probably
lies. In
Stellenbosch
Farmers Winery Group Ltd and Another v Martell ET CIE and Others
[1]
the
Supreme Court of Appeal stated:
“
The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be summarised as follows.
To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual
witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility
of a particular witness will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety
of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’s candor and demeanor in
the witness-box,
(ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded
or put on his behalf, or with established fact or
with his own extracurial statements or actions, (v) the probability
or improbability
of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying
about the same incident or events. As to (b), a
witness’s reliability will depend, apart from the factors
mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c)
the court
will then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging
it. The hard case,
which will doubtless be the rare one, occurs when a court’s
credibility findings compel it in one direction
and its evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter.
But when all factors are
equipoised probabilities prevail.”
The
evidence
[13]
The Plaintiff called Mr Cuzen Mesotlo and Mr. Willie Tintenger as
witnesses. Mr Mesotlo testified that he met Mr. Megs
Moodley from the
Defendant in 2007 after he came to Johannesburg from Botswana to buy
a link of trailers. They agreed that the
double and tri-axle trailers
would be sold for R200 000.00. No VAT was mentioned, the reason being
the trailers were going to be
taken across the border to Botswana.
Delivery was to take place in seven days. He paid the R200 000.00.
[14]
After paying the R200 000.00 it was a nightmare throughout. The
trailers were never ready as both trailers had problems
on the
bedding and he requested that they be refurbished. The bedding was
never done and ultimately after four months the bedding
was done on
the tri-axle. He took the tri-axle across the border without the
police clearance. The double axle was never made ready
and in
December 2007 it was still standing without tyres and some axles
taken off. Even in 2008 it was still not ready.
[15]
According to Mosotlo, in April 2009 the double axle was traded in on
a tri-axle because the Defendant could not get documentation
for the
double axle that was still standing on jacks with no tyres and the
axle on it. He paid the R14 000.00 which he had with
him as a deposit
on the second tri-axle trailer. He instructed Mr Tintinger to pay the
balance of R36 000.00.
[16]
Mr Mesotlo testified that subsequent to the payment of R36 000.00 on
16 April 2009 the Defendant had undertaken to have
the second
tri-axle ready for delivery within seven days. The Defendant failed
to make the trailer available for delivery and Mosotlo
had Moodley
commit in writing, on behalf of the Defendant, to having the second
tri-axle ready for delivery by 30 June 2009. The
Defendant still
failed to have the trailer ready for delivery.
[17]
Mr Mesotlo testified that he came to Johannesburg from Botswana on
numerous occasions throughout July, August and September
2009 to try
and obtain delivery of the trailer and on each occasion Moodley would
give further undertakings to have the trailer
ready.
[18]
Ultimately in September 2009 Mesotlo asked Tintinger to instruct
Webber Wentzel attorneys to take up the matter on behalf
of the
Plaintiff.
[19]
Webber Wentzel Attorneys addressed letters to the Defendant’s
Attorney on 14 October 2009 and 2 November 2009 recording
their
instructions that Plaintiff had paid for the second tri-axle and has
on numerous occasions attempted to take delivery to
no avail.
[20]
No response was received from the Defendant or its Attorneys and on 4
December 2009 Webber Wentzel Attorneys addressed
a letter to the
Defendant in which they communicated the Plaintiff’s election
to cancel the agreement and institute proceedings.
[21]
Mr Tintinger confirmed the agreement between the parties and his
involvement in delivering the cheque for R36 432.81
and
confirmed that the amount of R19 067.19 was still to be paid.
[22]
He testified that Mesotlo came down to ask for assistance after the
Defendant had failed to deliver the double axle.
He ultimately
approached Moodley on the 10 June 2009 to get a commitment in writing
from him on the Defendant’s behalf that
the trailer would be
ready for collection by 30 June 2009.
[23]
He maintains the trailer was not delivered. He saw Mesotlo on
numerous occasions during the period July, August and September
2009
and which time Mesotlo had advised him that he was trying to obtain
delivery of the trailer.
[24]
The Defendant called two witnesses, George Moodley and Megs Moodley.
George Moodley testified that the Defendant undertook
to have the
trailer ready for collection in about a week’s time and
that round about the 27
th
July 2007 the Plaintiff’s driver arrived at the premises to
collect it. He testified that he overheard the driver and the
mechanics speaking to each other in their own language and that he
learned that the discussion was about the horse of the Plaintiff
not
being strong enough to pull the link which was estimated to weigh
about 40 tons when loaded. He testified that the driver must
have
spoken to Mesotlo because he was then informed that they decided to
take the tri-axle only.
[25]
George Moodley testified that he prepared the papers for the export
of the tri-axle and obtained the police clearance
on 1 August 2007,
the roadworthy certificate on 2 August 2007 and a copy of the
registration certificate on 3 August 2007. Mr Moodley
testified that
Plaintiff’s driver was allowed to collect his load with the
trailer, but due to the fact that the balance
of the purchase price
and VAT which was required as security was not yet paid at that time,
the papers were not released to the
driver until the payment was
cleared.
[26]
He testified that the trailer was released on 8 August 2007 and that
it left the Defendant’s yard one day after
the Plaintiff’s
further electronic payment of R100 000.00 towards the double axle was
cleared. He denied that there had been
a failure on the part of the
Defendant to deliver during the period 16 April 2009 to 10 June 2009
and this was the reason why he
had given the written undertaking that
delivery would take place by 30 June 2009.
[27]
Mr Megs Moodley testified about the procedure regarding VAT and
confirmed that although the VAT transaction was zero
rated, the
Defendant demanded payment of Vat as security the reason being it was
reliant on the Plaintiff to return the stamped
documents with the
SAD500 to him in order to enable him to close the VAT transaction and
refund the Plaintiff.
[28]
He testified that due to the risk of the driver crossing the border,
he was not prepared to release the trailer’s
papers until the
full purchase price was secured which was done only on 7 August 2007
when payment of the further R100 000.00 cleared
and that the driver
was allowed to remove the vehicle and the papers given to him the
next day.
[29]
Mr Megs Moodley testified that when he was contacted by Plaintiff’s
attorney in Botswana about the double axle,
his attorney Manfred
Jacobs sent a letter in September to advise that the double axle was
ready for collection against payment
of his invoice. He further
testified that he consulted he consulted with his attorney
telephonically about the letter dated 14
October 2009 from the
Plaintiff’s attorneys and informed him that his payment was
still outstanding. He could not explain
his attorneys lack of
communication to the Plaintiff’s attorney but explained that
both he and his attorney were busy and
he recalled that his attorneys
son was very ill at the time.
[30]
Mr Moodle was adamant that he did not receive payment of the R14
000.00 and that the Plaintiff did not contact him about
the payment
of the balance of R19 067.18.
Discussion
[31]
It is not in dispute that on 16 April 2009 the Defendant represented
by Mr. Tintinger, delivered a check in the amount
of R36 432.81 to
the Defendant under cover of letter. This letter recorded in typed
writing that the payment of R36 432.81 was
in full and final payment
for the tri-axle trailer. It is stated on the letter, in manuscript
that R19 067.19 had to still be paid
in full settlement. The letter
had been signed by Tintinger and Moodley.
[32]
Mr. Moodley testified that he signed this letter because the R14
000.00 related to the previous deal and was a
separate issue.
Mr. Moodley testified that it had always been the Defendant’s
version that the R14 000.00 was outstanding.
This is contradicted by
an affidavit deposed to by him in support of a rescission application
wherein he had stated that the Plaintiff
did in fact pay all amounts
due to the Defendant for the purchase of the second tri-axle flatbed
trailer. Mr. Moodley told the
court that the events took place some 8
years ago and he did not recollect them well.
[33]
It is significant that the defence that the R14 000.00 was
outstanding all along was not raised in the initial plea.
This
defence was introduced into the Defendant’s plea by way of a
notice of intention to amend a year after the trial had
commenced.
[34]
In cross examination of Mosotlo it was never disputed that he had
attempted to obtain delivery of the trailer on numerous
occasions. It
was put to Mosotlo that it was strange that there had been no
communication regarding the failed delivery of the
trailer during the
period July 2009 to October 2009. Mr Mosotlo explained that there was
not correspondence during this period
because he had been personally
coming to Johannesburg to try and obtain delivery of the trailer.
[35]
In my view, the evidence of the Plaintiff’s witnesses is more
credible and the Plaintiff version is more probable
on the disputed
issues. I agree with the Plaintiff’s submission that the
probabilities favour the Plaintiff’s version
because it is
improbable that the Plaintiff would have paid the Defendant R100
000.00 in advance prior to even seeing the trailer,
thereafter paid
the next R100 000.00 for the double axle trailer, thereafter paid the
R36 000.00, acknowledged that it still needed
to pay the additional
R19 000.00 obtained written confirmation from the Defendant as to the
full and final settlement due on delivery
of the trailer, arranged
for consultations with its attorneys while failing to collect the
trailer which was allegedly ready.
[36]
I find that the Plaintiff complied with its obligations and made
payment of the R14 000.00 and was at all times willing
to pay the
remaining R19 067.19 in order to take delivery of the trailer but the
Defendant breached its obligations by failing
to have the trailer
ready for collection.
[37]
The Plaintiff testified that it suffered damages flowing from the
Defendant’s breach of the agreement by having
to rent a trailer
to conduct his business. Mr George Moodley testified that R800 per
day was a reasonable rate for the rental of
a trailer in 2007 and
that the Defendant would have rented a horse and trailer to the
Plaintiff at R25,000.00 per month.
[38]
If the damages are calculated on the basis that the Plaintiff would
have to rent a horse and trailer at R25 000.00 per
month for the
period 30 June 2009 to 4 December 2009 this equates to a similar
figure of R125 000.00 claimed by Plaintiff as damages.
It follows
therefore that the sum of R125, 600.00 claimed by Plaintiff as
damages is fair and reasonable.
[39]
In the circumstances, judgment is granted in favour of the Plaintiff
for:
39.1
Payment of the sum of R150 000.00.
39.2
Interest on the sum of R150 000.00 at the rate of 15.5% per
annum from 4 December 2009 to date of payment.
39.3
Payment of the sum of R125 000.00.
39.4
Interest on the sum of R125 000.00 at a rate of 15.5% per
annum from 19 January 2010 being
the date of service of
summons.
39.5
Costs of the suit.
______________________
K E
MATOJANE
JUDGE
OF THE HIGH COURT
[1]
2003(1)SA
11 (SCA)