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[2015] ZAKZPHC 10
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Protea Coin Group (Pty) Ltd v Chetty (AR280/13) [2015] ZAKZPHC 10 (24 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
AR
280/13
In
the matter between:
PROTEA
COIN GROUP (PTY)
LTD
......................................................................................
Appellant
(Defendant
in the Court
a quo
)
and
LESLEY
CHETTY
..................................................................................................................
Respondent
(Plaintiff
in the Court
a quo
)
JUDGMENT
STEYN
J et BEZUIDENHOUT AJ
ORDER
:
1.
The appeal is dismissed with costs.
2.
The wasted costs occasioned by the
adjournment of the appeal on 7 February 2014 including the reasonable
travelling and subsistence
costs of the attorney of record and the
counsel is to be paid by J. Budree & Associates and Aggie
Govender Attorneys jointly
and severally.
[1]
The appellant with leave of the court
a
quo
appeals against the judgment handed
down on 4 July 2011 ordering the appellant to pay to the respondent
the sum of R180,000.00
together with interest thereon at the rate of
15.5% per annum from date of judgment to date of payment and cost of
suit.
When the matter was heard the following facts appear to
have been common cause:
(a)
The court
a quo
had the necessary jurisdiction;
(b)
That at all times material Mr Sheldon James acted within the course
and scope of his employment with the appellant.
(c)
During March 2004 the respondent applied for a job with the appellant
and was appointed as a driver by the appellant.
(d)
The respondent commenced his employment on 16 March 2004.
(e)
On 16 November 2005 the respondent was injured in an attempted
hijacking by unknown persons whilst he was the driver of an armoured
vehicle, owned by the appellant.
(f)
The respondent sustained two gunshot wounds, one bullet entered the
left side of the chin and passed through the neck to the
right back;
the other entered the left arm and passed through the left side of
the chest.
[2]
The respondent was employed by the appellant as a driver since 16
March 2004. He contacted the appellant and enquired
about a
vacancy and was interviewed by Mr James. James informed him
that he would be driving a fully armoured vehicle and
that the front
section of the vehicle, i.e. the glass, was bullet proof. He
further elaborated that no bullet could penetrate
the front glass and
also not the steel body. When the respondent was shown the
vehicle that he would be driving he noticed
an emblem on the
windscreen stating that it was bullet resistant glass and understood
this to mean bulletproof. This was
also what James had
explained to him. If this was not so he would not have taken
the job. He testified that drivers
did not wear bulletproof
vests but when they were used as a third man, bulletproof vests were
worn. On 16 November 2005 whilst
driving a vehicle on behalf of
the appellant an attempted hijacking took place and shots were fired
at them and he was struck by
two bullets. He was thereafter
hospitalised for approximately 20 days and underwent operations,
inter alia
, where a steel plate was inserted at his chin
bone. He has a 4cm scar under his chin and also still has pain.
[3]
During cross examination he stated that he returned to work during
May 2006 and was on light duty until December 2007 when he
resigned.
Prior to the incident he was mostly employed as a driver but
there were some days that he was used as a third man
and in that case
he wore a bulletproof vest. The agreement signed on 17 April
2007 was signed when he was on light duty and
was only to update the
contracts so that they were in compliance with the bargaining
council’s requirements and to ensure
that they receive the
correct salary. Everyone employed had to sign the new
contracts. He denied that he had ever after
the incident driven
for the appellant. He had no knowledge of rifles and which were
considered as high velocity rifles.
When he went to look at the
vehicle he was informed by James that it was bullet resistant and
bulletproof and that the window would
not be penetrated. When
it was put to him that he never went to inspect the vehicle because
it would not have been done for
security reasons, he stated that he
had even been given a test drive of the vehicle with one Morgan
Doorasamy and that this was
for about one hour. When he was referred
to a statement he had made where he stated that it was a high
velocity rifle used during
the incident he testified that he was told
so by the police and accordingly stated that.
[4]
Doctor Perumal thereafter testified about the injuries which the
respondent suffered explaining entrance and exit wounds and
indicating that he had seven scars resulting from the bullets and
four surgical scars. It is not necessary to deal any further
with his evidence. That was the case for the respondent.
[5]
Mr Lembede, an employee of the appellant, testified that on 30 August
2007 he was a crewman when the respondent was the driver
of the
vehicle. According to him, the respondent also drove for one
Rieckert and one Sibisi during August 2007. The
respondent
however complained that he no longer wanted to drive. He
confirmed that there were logbooks kept by the appellant
of each
journey and that the drivers signed these logbooks. He also
stated that he never looked at the records. It
had been his
evidence that he was asked by one Rakesh Kismet to come and testify
and was picked up on the road on the morning of
the trial. He
was only asked whether he had worked with the respondent and if so to
go to court. Later in his evidence
he stated that he had looked
at the records and furthermore that on 22 August 2007 the respondent
drove for one Rieckert.
Subsequent to his earlier testimony he
claimed that the respondent drove for one Sibisi on 22 August 2007.
[6]
Sheldon James testified that he was the operations manager who
interviewed the respondent during March 2004. He could
not
remember the date but would normally have asked for a CV and would
also normally have interviewed the applicant. He denied
that
they had discussed whether the glass windscreen of the vehicle would
be penetrable or not. He also denied that he showed
the
respondent the vehicle and stated that he could not recall if a test
drive was allowed. Because of the security risk
he would not
have taken him to the vehicle. The vehicle was armoured to an
AK47 level and he could not recall if the emblem
which the respondent
testified about was on the vehicle at the time. He had never
noticed it before. According to him,
he would have made notes
of the interview but he did not have a look at them prior to
testifying. He did not have a specific
recollection of the
interview with the respondent and was speaking in general terms and
not about what was specifically discussed.
When asked if he
remembered the interview his response was that he remembered what a
normal interview would be.
“
Mr
James, it would therefore be a correct proposition to put to you that
you do not have a specific recollection of your interview
with the
plaintiff, that is Mr Leslie Chetty. But when you speak about
the interview, you are saying what the norms were
in relation to the
interviews you conducted for BOE. --- Yes, Sir.”
[1]
In
re-examination James’ recollection became very different to his
earlier testimony.
[2]
He
claimed not to have had a discussion about the penetration of the
windscreen with the respondent.
He
could however not deny that the respondent had signed his employment
contract on the day of the interview and could also not
deny that a
test drive took place on that day. He testified that all three
employees in an armoured vehicle would be supplied
with bulletproof
vests. That concluded the evidence on behalf of the appellant.
[7]
The court
a quo
found that the appellant had to rebut the
evidence of the respondent and failed to do so. James confirmed
under cross-examination
that he had taken down notes during the
interview but never refreshed his memory prior to testifying from the
said notes.
James as the operations manager had a legal duty to
furnish information which was accurate and correct to the respondent
and that
his misrepresentation was material and influenced the
respondent to rely on it. James was aware that the armoured
vehicle
could be penetrated by ammunition of a higher calibre than an
AK47 but informed the respondent that the vehicle would be
impenetrable.
He accordingly acted negligently. The
court
a quo
held that there was a causal link between the
misrepresentation made to the respondent by Sheldon James and the
damages suffered
by him as a result of the injuries sustained.
It accordingly found that the appellant was liable to compensate the
respondent
and awarded an amount of R180,000.00 as damages.
[8]
Mr Boot argued that the finding by the court
a quo
that James
indeed made a misrepresentation to the respondent was incorrect.
He submitted that the court had to take into
account the
viva voce
evidence by the respondent and that on behalf of the appellant.
The evidence adduced by the appellant and the respondent
had to be
weighed up and compared. He submitted that the court was
incorrect in accepting the evidence of the respondent
as it was
unreliable. In his view the respondent contradicted himself and his
version was improbable due to the following:
8.1
He exaggerated when he testified about the overtime worked as well as
the length of time spent in hospital.
8.1
He failed to call the witness who took him for a test drive despite
such witness being available.
8.3
By using the wording ‘a high velocity armour piercing rifle’
in his affidavit he had knowledge of such ammunition.
8.4
He never testified during his evidence in chief that he went for a
test drive but only mentioned this during cross-examination.
8.5
He tried to read into the record the wording of the emblem that he
apparently saw on the right hand side of the windscreen when
it was
not visible to the court and appellant’s legal team.
8.6
His evidence was not independently corroborated by any of the proven
facts.
[9]
It was submitted that the evidence of James should be accepted, as he
was no longer employed by the appellant and had no reason
to
fabricate his evidence. He further submitted that the evidence
of James was corroborated by Mr Lembede. The evidence
of James
must be interpreted that he was adamant that he never in any of his
interviews followed a work method as testified to
by the respondent.
The respondent consented to being a crewman at times. There was
thus a break in the chain of causation
as he consented to this other
risk.
[10]
Mr Naidu submitted that the respondent readily conceded when he made
a mistake and withdrew his claim for loss of income.
The
logbooks relating to the test drive etc. should have been produced by
the appellant and no reliance could be placed on the
evidence of
James as he could not remember any detail of the interview.
[11]
The documentation submitted to the court
a quo
, including
payslips of the respondent show that after the incident the
respondent worked lengthy hours of overtime. From
exhibit “A”,
the salary slip for September 2006, it would appear that overtime in
the amount of R2,664.23 was earned
as well as overtime for Sundays in
the amount of R1,487.18. There are indeed other payslips which
indicate lesser amounts
in respect of overtime. At times the
respondent worked long hours and accordingly it cannot be said that
his evidence in
this regard was a total exaggeration. The response by
the respondent that he went for a test drive was a spontaneous reply
when
it was put to him that he in fact never went down to the vehicle
with James. He stated ‘at the same time why did Sheldon
James send me on a trial basis with a guy called Morgan Doorasamy,
the transport manager to drive in the vehicle for one hour and
come
back?’ This evidence came out in response to what was put
to the respondent. No adverse inference can be
drawn from the
fact that the respondent did not call Mr Doorasamy. There
was no evidence to suggest that he was available.
Indeed the
appellant in rebuttal could have called Doorasamy who was an employee
of the appellant. It elected not to do so.
The reference
by the appellant to the high velocity armoured piercing rifle was
explained by him when he testified that he had
been informed by the
police what firearm was used during the incident. We can find
no misdirection by the court
a quo
in accepting the evidence
of the respondent. His evidence was satisfactory and probable.
The evidence of James was
riddled with replies such as ‘normally
would’; ‘do not recall’; ‘I’m
testifying about what
the norm is’; ‘I am speaking in
general terms not what was specifically discussed’; ‘I do
not have a specific
recollection of the interview with Chetty’;
‘I remember what normal interviews would be’; ‘I do
not remember
the interview in detail’; ‘I do not deny
that a test drive took place’; ‘I do not remember the
specifics
of the interview’. His evidence was repleted
with evasion and the court
a quo,
in our view, correctly
analysed it.
[12]
Mr Lembede also contradicted himself as to the dates and although he
indicated that records were available which were signed
by drivers
and the crew showing that the respondent had driven on the day in
question such were never produced. His evidence did
not corroborate
that of James. The findings of the court
a
quo
that the appellant failed to rebut the evidence of the respondent,
and that James owed a legal duty to the respondent to furnish
the
correct information, cannot be faulted. The findings were fully
motivated by the court and we find no misdirection.
[3]
A reasonable person in the position of James when making such
representation as to the impenetrability of the vehicle, knowing
it
could be penetrated by certain calibre firearms, would act
negligently.
[4]
[13]
The respondent had on a balance of probabilities discharged the
onus
that there was a misrepresentation, that he relied thereon and as a
result thereof suffered damages.
[14]
The appellant submitted that the amount of damages awarded by the
court
a quo
should be lower. Respondent suffered serious
injuries and although he has recovered he was off work for some time,
suffered severe
pain and a loss of amenities of life. He
also has permanent scars. The court
a quo
carefully considered
the amount of damages and the award of R180,000.00. In our view
the amount appears to be reasonable
and equitable given the said
circumstances.
[15]
The appeal can thus not succeed and must be dismissed with costs.
[16]
A further issue which remains is the wasted costs occasioned by the
adjournment on 7 February 2014. On 7 February 2014
an order was
granted directing attorneys Aggie Govender and Saneel Nadoo to file
affidavits dealing with the question of wasted
costs occasioned by
the adjournment and for the appellant to file an affidavit in that
regard and the respondent a replying affidavit
if he so wished.
Affidavits were filed by Agadhevi Govender of Aggie Govender
Attorneys and Saneel Naidoo employed by Jenny
Budree & Associates
in Pietermaritzburg who were the local correspondents of Aggie
Govender. An affidavit was also filed
by Nicolaas Jakobus
Viviers, appellant’s attorney. The issue of the wasted
costs can accordingly now be decided on
the affidavits which have
been filed.
16.1
It is apparent that Saneel Naidoo on 14 December 2012 sent a copy of
the notice of appeal to Aggie Govender. He was unaware
that the
notice of set down of the appeal was served at his offices on 15
August 2013. The notice of appeal was sent by the
registrar to
Budree & Associates on 25 June 2013. According to a letter
of the appellant’s attorney dated 15 July
2013 the date of the
appeal, namely 7 February 2014, was communicated to Aggie Govender
Attorneys in that letter. On 5 February
2014 Aggie Govender
Attorneys enquired from J. Budree & Associates about a notice of
set down for the appeal. They were
unaware of such notice.
Both the attorneys failed to comply with their respective mandates as
a result of which they were
not prepared for the appeal on 7 February
2014. There is no indication that the respondent was
responsible therefore and
accordingly it would be unjust that he
bears the wasted costs of the adjournment. The costs of the
adjournment should thus
be borne jointly and severally by the
attorneys.
[17]
ORDER
I
accordingly make the following order:
1.
The appeal is dismissed with costs.
2.
The wasted costs occasioned by the
adjournment of the appeal on 7 February 2014 including the reasonable
travelling and subsistence
costs of the attorney of record and the
counsel is to be paid by J. Budree & Associates and Aggie
Govender Attorneys jointly
and severally.
_________________
STEYN
J
________________
BEZUIDENHOUT
AJ
_________________
POYO-DLWATI
J
Date
of Hearing: 02 February 2015
Date
of Judgment: 24 February 201
APPELLANT’S
COUNSEL: Mr B. Boot (Jhb)
Instructed
by: Weavind & Weavind Attorneys
c/o
Venn Nemeth & Hart
281
Pietermaritz Street
Pietermaritzburg
Tel:
033-355 3100
Ref:
D. Schaup
DEFENDANT’S
COUNSEL: Mr V. Naidu
Instructed
by: Aggie Govender Attorneys
c/o
J Budree & Associates
19
Drummond Street
Pietermaritzburg
Tel:
033 345 2779
Ref:
J Budree
[1]
See
record pages 273 lines 3-7.
[2]
See
pages 294 lines 21-14.
[3]
See
National
Employer’s General Insurance v Jagers
1984 (4) SA 437
(E) at 440D-G.
[4]
See
Ehlers
NO and Others v Graphorn NO and Others
(2005) 4 ALL SA 601
(SCA).