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[2015] ZAKZDHC 14
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Makan v Budhram (4226/06) [2015] ZAKZDHC 14 (24 February 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO. 4226/06
In
the matter between:
ANIL
MAKAN
.................................................................................................................
Plaintiff
and
CI
BUDHRAM
.............................................................................................................
Defendant
JUDGMENT
Delivered:
24 February 2015
BALTON
J
[1]
The plaintiff instituted action against the defendant for damages to
the his BMW motor vehicle in a sum of R322 279,07.
The parties
agreed that the matter will proceed on liability with quantum to be
determined at a later stage.
[2]
In paragraph 4 of the particulars of claim the plaintiff alleges
that:
On
or about 6 February 2006 and at Blair Atholl Road, Westville, at or
near the intersection with Jan Hofmeyer Road, a collision
occurred
between the plaintiff’s motor vehicle and motor vehicle ND […],
there and then been driven by an employee
of the defendant, known
only to the plaintiff as Mohamed, acting within the cause and scope
of his employment with the defendant.
[1]
[3]
In paragraph 3 of the plea dated 10 July 2006, the defendant, in
response to paragraph 4 of the particulars of claim states:
Save
for the admissions hereinafter made, each and every allegation
contained in the plaintiff’s summons and particulars of
claim
are denied as if specifically traversed herein.
In
so far that an accident occurred on the 6
th
February 2006, the rest of this paragraph is denied and the plaintiff
is put to the proof thereof.
[2]
[4]
It is
inter
alia
common cause between the parties that:
[3]
4.1
The plaintiff was the registered owner of a BMW motor vehicle, with
registration number STX […].
4.2
The vehicle ND […] was driven by one Craig Glynn Gwillam, also
known as Mohamed and/or Goolam (Mohammed).
4.3
The collision was caused solely, alternatively, partly, due to the
negligent driving of Mohamed.
4.4
The summons in this action was served on the defendant on 25 April
2006.
4.5
The defendant was at all material times relevant to this action, a
member of Clivo’s Enterprises CC (Clivo’s).
4.6
The defendant, in his plea served on the plaintiff on 10 July 2006,
denied ownership of motor vehicle ND […], that he
was the
employer of Mohamed at the time of the collision and put the
plaintiff to the proof of both issues.
4.7
The plaintiff was advised of Clivo’s involvement in this action
on 5 February 2010.
4.8
Clivo’s was finally deregistered on 16 July 2010.
4.9
The plaintiff became aware of Clivo’s deregistration on 4 March
2011.
[5]
The parties have agreed that the issues are:
5.1
Whether the plaintiff has sued the correct party; and
5.2
Whether the defendant ought to be held liable in terms of sections
26, 64 and/or 65 of the Close Corporation Act 69 of 1984
(the Act).
[6]
The plaintiff testified that on 6 February 2006 his mother, who was
driving his motor vehicle, was injured in the accident.
He arranged
for an ambulance to transport her to the hospital and did not speak
to anyone at the scene. He travelled in the ambulance
with his mother
and Mohamed who had also sustained injuries. He could not recall if
Mohamed discussed the accident while travelling
in the ambulance.
Later that day he completed an insurance claim form
[4]
in which he referred to the accident report form
[5]
.
At the time he did not have Mohamed’s details.
[7]
On 7 February 2006 he phoned the defendant who confirmed that he was
the owner of ND 422 670 and they shared insurance
details. He
did not have any further contact with the defendant. His claim was
subsequently repudiated by his insurance company.
[8]
In cross-examination he stated that:
8.1
He may have had general discussions with Mohamed in the ambulance and
was clear that they did not discuss the accident.
8.2
Mohamed indicated that he was working for the defendant but was
unable to recall whether that conversation took place before
Mohamed
boarded the ambulance or while he was in the ambulance.
8.3
The defendant was at the scene and “if I recollect correctly,
he (Mohamed) said that is my employer”. He was however,
unable
to recall if Mohamed mentioned the name of his employer.
[9]
This evidence differed from his evidence-in-chief where he stated
that he was unable to recall if he spoke to Mohamed about
the
accident. He was unable to explain his different versions and was an
unimpressive witness in this regard.
[10]
It was pointed out to him that his evidence-in-chief differed from
the version in his amended replication to the defendant’s
plea,
which reads
[6]
:
1.1
The defendant represented to the plaintiff and others:
1.1.1
That he was the owner, alternatively the person who bore the risk of
loss and cost of repair of the motor vehicle with registration
number
ND […] at the time of the collision as pleaded.
1.1.2
That one “Mohamed” also known as Craig Glynn Gwillam (the
driver of motor vehicle with registration number ND
[…] at the
time of the collision) was his employer.
[11]
He was unable to recall whether he advised his attorney about Mohamed
in 2011 and agreed that it was unlikely that his attorney
would have
pleaded that if he had not advised him about it.
[12]
When it was put to him that the defendant did not tell him about the
employment relationship between himself and Mohamed, he
stated that
he was unable to recall if the defendant had done so or whether he
had asked the defendant if he was Mohamed’s
employer. He was
adamant that either Mohamed or the defendant must have given him that
information.
[13]
He was unable to recall any of the details in that regard. He stated
that at the time he phoned the defendant his main concern
was whether
the defendant was the owner of ND […]. It is clear that his
interest at that time was purely for insurance purposes.
He only had
one conversation with the defendant and was unable to recall if he
had discussed Mohamed’s employment with him
at all.
[14]
When it was put to him that the details of Mohamed pointing to his
employer appeared to be a recent fabrication, he stated
as he was
being cross-examined his memory of the events on that day became
clearer. The plaintiff was an unimpressive witness who
appeared to
bolster his case in cross-examination. Important aspects of his
version were left out in his evidence-in-chief. When
he was unable to
answer any questions he repeatedly stated that he did not recall what
had happened.
[15]
The plaintiff was unable to provide clear evidence of his interaction
with Mohamed at the accident scene or in the ambulance.
His
evidence was contradictory and was tailored as he testified.
The plaintiff was accordingly an unsatisfactory and unreliable
witness.
[16]
Even if this court had to accept in favour of the plaintiff that the
accident claim form reflected the defendant as the owner,
this court
cannot ignore the fact that the vehicle registration form indicates
the correct owner. The onus is on the plaintiff
to have
satisfied himself that the correct party had been sued. Proper
investigation or preparation prior to institution
of summons would
have called for the licencing details of the offending motor vehicle.
[17]
The plaintiff relied on the accident claim form to establish that
Mohamed was employed by the defendant. The registration
form
indicates that Clivo’s was the owner. The obvious
inference to be drawn is that Mohamed was driving in the course
and
scope of his employment with Clivo.
[18]
In
COOPER AND ANOTHER NNO V MERCHANT TRADE FINANCE LTD
2000 (3) SA
1009
(SCA) Zulman JA
set out the rule in respect of the drawing
of inferences in civil cases and held that:
If
the facts permit of more than one inference, the court must select
the most ‘plausible’ or probable inference.
If this
favours the litigant on whom the onus rests, he is entitled to
judgment. If, on the other hand, and inference in
favour of
both parties is equally possible, the litigant will not have
discharged the onus of proof….
The
mere fact that the person who made the disposition does not give
evidence does not ipso facto mean that one must infer that
there was
an intention to prefer. So, for example, in GERT DE JAGER
(EDMS) BPK V JONES NO EN MCHARDY NO the debtor did not
give
evidence. This notwithstanding, Rumph JA nevertheless, after
remarking that it was the defendant who knew best what
his intention
was in regards to this decision, still examined the probabilities in
order to determine whether the inference of
an intention to prefer
was justified in the particular circumstances of the case.
[19]
The major obstacle which the plaintiff is unable to overcome is that
it did not do the groundwork prior to institution of summons.
[20]
It was submitted on behalf of the plaintiff that the defendant is
estopped from denying his ownership or employment of Mohamed
based on
the telephone call that the plaintiff made to the defendant.
The plaintiff’s evidence in this regard was contradicting
and
unsatisfactory. The plaintiff was unable to satisfy the court
that the defendant represented to him that Mohamed was
his employee.
The plea dated 10 July 2006 alerted the plaintiff to the fact that
the defendant was denying ownership of the
vehicle and being
Mohamed’s employer. The plaintiff failed to take any
reasonable steps in this regard.
[21]
It was submitted on behalf of the plaintiff that the defendant is
responsible in his personal capacity in terms of sections
24, 64 and
65 of the Act.
[22]
From the plea the plaintiff was aware on 10 July 2006 that ownership
was in dispute. Due diligence and or proper preparation
would
have demanded an investigation into ownership of the vehicle.
Plaintiff has failed to provide any reason as to why
this was not
done or even considered.
[23]
The main difficulty in this case is that summons was issued without
proper investigation into the ownership of the vehicle.
Reliance on the motor accident claim form was insufficient in light
of the denial of ownership in the plea. The Court agrees
with
Advocate Broster who appeared on behalf of the defendant that the
accident claim form was just one document in the factual
context of
the documentation
in casu.
[24]
Further, as stated above, the plaintiff was not a satisfactory
witness. His evidence did not in any way assist his case
at
all. This court is unable to draw an adverse inference from the
defendant’s decision not to testify. The plaintiff
was
unable to satisfy the court that he had sued the correct party or
that the defendant is liable in terms of the Act.
[26]
The following order is made:
The
plaintiff’s claim is dismissed with costs.
_______________
BALTON
Appearances:
Date
of Hearing : 17 November 2014
Date
of Judgment : February 2015
Counsel
for the Applicant : Adv. CB Edy
Instructed
by : Henwood Britter & Caney
Counsel
for the Respondents : Adv. J-P Broster
Instructed
by: Leon Pillay & Co
[1]
Page
4 of indexed pleadings
[2]
Page
13 of the indexed pleadings
[3]
Page
50, 51 and 52 of the bundle Index to Notices
[4]
Pages
6 and 7 of exhibit A
[5]
Pages
8 to 11 of exhibit A
[6]
Page
22 of the pleadings para 1.1