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[2014] ZAFSHC 13
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Janka Vervoer CC v Hallmark Motor Group (Pty) Ltd t/a New Vaal Motor Group (3302/2011) [2014] ZAFSHC 13 (20 February 2014)

IN THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.:
3302/2011
In the matter
between:-
JANKA VERVOER
CC
.....................................................................................
Plaintiff
and
HALLMARK
MOTOR GROUP (PTY) LTD
..............................................
Defendant
t/a NEW
VAAL MOTOR GROUP
HEARD
ON:
19 MARCH 2013 – 4
DECEMBER 2013
DELIVERED
ON:
20 FEBRUARY 2014
JUDGMENT
MOCUMIE,
J
[1] The
plaintiff, Janka Transport, issued action against the defendant,
New Vaal,
for
payment
of the sums of R233 250.40 (two hundred and thirty three and two
hudred and fifty rand forty cents), being the reasonable
and fair
costs of repair to a Mercedes Benz motor vehicle with registration
number
DMF 819 FS
(“the
truck”) after its propshaft collapsed consequent upon repairs
being done on the truck   by the defendant
in Bethlehem, R6
500.00 (six thousand and five hundred rand), being the costs of
cleaning up of the road where the propshaft broke,
and R9 120.00
(nine thousand and one hundred and twenty rand), being the towing
charges paid by the plaintiff delivering the truck
to Ladybrand.
[2] The
plaintiff is a close corporation registered in terms of the South
African laws with its head office at Bleakvlei, Clocolan;
Eastern
Free State Province. It serves as a truck contractor and transporter
of bulk farming products across the country to different
clients. Its
sole member is Mr Johannes Hendrik Botha (“Mr Botha”).
The truck in issue belonged to Masupa Trust (“the
Trust”)
of which Mr Botha was the sole Trustee. The defendant is a company
registered in terms of the South African laws
with its head office in
Duncanville, Vereeniging, Gauteng Province. The defendant is Hallmark
Motor Company t/a as New Vaal Motor
Group. It is one of John
William’s agents in the Free State and deals as well as repairs
trucks and does their general maintenance.
[3] The following was
common cause between the parties. Janka Transport bought a new
Mercedes Benz truck from John Williams, Bloemfontein
during November
2008.  On 15 December 2010 the truck in issue broke down along
N3 Harrismith highway. The truck was towed
to New Vaal Bethlehem,
where it was repaired for “overfuel in one of the pistons,
piston no 6 and a sleeve.”
[1]
The truck was returned to the plaintiff on 21 December 2010.
[4] On 28 January
2011 on the same route, the same truck broke down again. The truck
was towed to Mercedes Benz Ladybrand instead
of Bethlehem for repairs
on instructions of Mr Botha. In order to tow the truck properly and
as is practice in the industry, the
truck’s driveshaft
commonly known as a propshaft (“propshaft”) was removed
by the towing services with
the knowledge that it will be refitted
after the repairs were effected. The propshaft was indeed refitted
after repairs.
[5] It was further
common cause between the parties that initially John Williams
Technical Division in Ladybrand was of the view
that the breakdown as
Mr Willem Christoffel Coetzee
[2]
put it: “[was] die voorste kruiskoppeling [ge] wees omdat dit
al vantevore gebeur het…”
[3]
That Mr Coetzee disagreed with this prognosis and instead sent the
parts of the truck in issue for further investigations
to Mr Von
Wielligh, a metallurgical engineer, Mercedes Benz’s appointed
expert. The latter’s findings were that the
damage was caused
by poor workmanship on the part of the defendant’s employees.
The defendant disagreed and subsequently
launched its own
investigation. Mr Leyster, the defendant’s expert was of the
view that the defendant was not at fault. The
two experts had a joint
conference but could not reach any consensus. They drew up separate
reports which conflicted on the cause
of the damage. Thus this trial.
[6] The issues in
dispute between the parties were whether the propshaft was fitted in
a professional and workmanlike manner by
the defendant at its
premises in Bethlehem before the plaintiff took it after it had been
repaired during December 2012.  Secondly,
whether the propshaft
fell off at the rear axle as the plaintiff alleged or the front axle
as the defendant alleged. Thirdly, whether
the defendant was
responsible in any manner for the damages caused to the truck when
the propshaft broke.
[7] At the
commencement of the trial the parties agreed that the quantum and
merits be separated.  The agreement was made an
order of this
Court in terms of Rule 33(4) of the Uniform Court Rules.
[8] In order for the
plaintiff to prove its case on a balance of probabilities it called
four witnesses.  Mr Adam Jacobus Von
Wielligh, an expert and the
mechanical engineer who conducted the investigations on the propshaft
and smaller particles of the
gear box; Mr Willem Christoffel Coetzee,
the manager at John Williams Motors, Bloemfontein and Ladybrand; Mr
Johannes Hendrik Botha,
the plaintiff’s sole member; and Mr
Jacob Likotsi, the assistant to the driver and the person who was in
the truck before
it broke down. The plaintiff opted to call him
instead of the driver of the truck in issue known only as Johannes,
who was at the
time of the trial ill disposed. The defendant led
evidence of three witnesses to rebut the plaintiff’s case. Mr
Anthony Lyster,
an expert and insurance assessor; Mr Petrus Johannes
Lubbe, the mechanic who worked on the truck; Mr Gary Alexander Brown
from
Mercedes Benz South Africa; and Mr Marc McKernan , a
representative of the defendant.
[9] On 20 March 2013
an inspection
in loco
was conducted at John Williams’ workshop, in Church Street,
Bloemfontein. The purpose of the inspection
in
loco
was to look at a truck similar to
the truck in issue that was standing on John Williams’ premises
to see the exact parts
referred to during the evidence. A new truck
was used to show the different parts and these although new, were
exactly as the damaged
ones.
The notes recorded at
the premises were poorly recorded and of not much assistance to the
court. Thus the inaudible notes were dispensed
of.  More so
because the damaged parts of the truck in issue were transported to
the court room for closer scrutiny as and
when the need arose.
The big/long part of
the propshaft was admitted as exhibit 1 and the small/short part of
the propshaft as exhibit 2. From time to
time and for the better part
of the trial much reliance was placed by all parties on the photo
album which contained photos of
the damaged parts which photos were
not in dispute. The photo album and the photos were admitted as
Bundle 1 and 2 of the pleadings.
[10]
Mr
Jacob Likotsi
testified that he was the
assistant to Johannes, the driver on the day in question. He has been
Johannes’ assistant since
2008 when the truck was bought. When
it broke down the two of them were inside the truck. When they were
about 5 to 7 kilometres
from Harrismith the truck started to shake or
vibrate, the driver slowed down in order to drive off the main road.
Before
he could do so, they heard a big “bang” sound from
underneath the truck. The truck came to a stop right in the middle
of
the tarmac.
[11] He
alighted, took out a triangle
[4]
and put it behind the truck as is prescribed by the law. As he was
outside putting the triangle in place he noticed the long part
of the
propshaft of the truck some 10 metres behind the trailer.
[5]
They also found a small part of the propshaft directly underneath the
truck. There were also small parts of the propshaft on the
road which
he and the driver removed and put alongside the truck. They called
the owner Mr Botha. The traffic officers arrived
on the scene. The
towing service arrived and towed the truck to Bethlehem.
[12] He
conceded during cross examination that frequently Janka Transport’s
mechanics checked on the truck when it was on
the premises. Meaning
as Mr Botha would later confirm that the mechanics worked on it by
only cleaning the radiator and the filters.
Nothing major.  All
major services were performed by Mercedes Benz agents. In this
instance New Vaal, Bethlehem. He
could not tell what could have
happened when he was on his annual leave which he said he did not get
as often.
[13]
Mr
Johannes Hendrik Botha
testified that he is the sole director of
Janka Vervoer. The truck in issue was bought from Mercedes Benz in
2008 brand new and
it had a warranty from Mercedes Benz up to 450,
000 kilometres. The truck belonged to the Trust, which is a
loan/lease/rental Trust.
The Trust leased out the trucks to Janka
Vervoer. Janka Vervoer maintained the trucks. Maintenance included
paying the salaries
of the drivers; buying diesel and repairing the
truck(s) as and when necessary.
[14] He
testified that once he was informed about the breakdown of the truck
in January 2011 he gave instructions that although
New Vaal, in
Bethlehem, was closest to where the truck broke down the truck should
be towed to Mercedes Benz Ladybrand because
during December when the
truck broke down the first time New Vaal took unnecessarily long to
repair it the last time. Such delay
set him back financially during
as December is the busiest period of the year of his dealership.
[15] He
testified that after the truck was repaired at New Vaal the first
time in December 2010, it was never repaired by any of
his employees
at Janka Vervoer except when they cleaned the radiator and filters.
The truck had travelled more than 9000km at that
time and was still
under the 45000km warranty. He referred to a spread sheet that his
administrative staff in the office had to
fill whenever any truck
including the one in issue was out on a trip.  The spread sheet
was meant to monitor the movement
of the particular truck. The
drivers themselves carried with them a log book in which they noted
where they went to; the stops
they made including the garages where
they refilled fuel. The log book also reflected the kilometres and
the name of the garage
where the drivers re-fuelled. This of
necessity included the detours on the national roads where they
making delivery as well as
the time they spent on such detours or
what are commonly referred to as “Stop/Go” areas. The
relevant period in the
log book of this truck was 29 November 2010
until 10 April 2011.The log book was admitted as exhibit “G”
and the spread
sheet as exhibit “H”.
[16]
Cross examination revealed that, as he was not the author of exhibits
“G” and “H”; there were times
when he or at
least his office did not know where the truck in issue was or was
parked per the recordings or why the times it travelled
or the
kilometres it travelled were not recorded in some instances. Nor
could he vouch on the extent of the service done, by Janka
Transport
mechanics on site after New Vaal had returned it .i. e during the
period 21 December 2010 and 23 January 2013 when it
broke down for
the second time. He could also not shed light on why the kilometres
on the odometer as recoded by the tow services
was different to that
which was recorded by Mercedes Benz.
[17]
Mr
Willem Christoffel Coetzee
testified
that he was the General Manager of the After Sales Division at John
Williams Bloemfontein based mainly at Langenhoven
Park. He also
managed two other branches in Welkom and Ladybrand. He qualified as
diesel mechanic and thereafter a motor mechanic.
He has worked
for John Williams since January 1979; qualified as a diesel mechanic
in 1982, which means he has been working for
John Williams for 34
years and has been a diesel mechanic for 31 years.
[18] When this
incident occurred Mercedes Benz Technical Division was at that stage
of the view
“
dit
[was] die voorste kruiskoppeling [ge]wees omdat dit al vantevore
gebeur het…”
He disagreed with the
prognosis based on his own experience as a mechanic and manager in
the industry as well as his own observation
albeit not of an
expert
[6]
.As
a result he sent the gearbox including the parts of the propshaft of
the truck in issue to Mr Von Wielligh who was known to
him for the
past 10 years as an expert in the field.
[19]
During cross examination he denied that the damage could have come
from the front axle, and maintained that it was from the
rear axle.
[20]
Mr
Adam Jacobus Von Wielligh
(“Mr
Von Wielligh”) is a qualified mechanical engineer. Prior to
2005 he worked for the railway services for a number
of years. In
2005 he became a lecturer at the University of Pretoria, Department
of Mechanical Engineering. He was a lecturer and
then senior lecturer
at the university and lectured on post graduate level on courses on
vehicle propulsion including engines,
transmissions, drive/prop
shafts and the design of such components for the third and final year
engineering student. He had a company
with construction machinery and
his own trucks and front loaders which make use of prop shafts as a
part time job. He retired as
a lecturer after thirty years in the
service of the university in 2005. He is currently a consultant in
failure analysis, forensic
investigations in mechanical failures of
engines and transmissions.
[21] Mr Von Wielligh
testified that he examined the propshaft as well as some loose gear
box components which John Williams sent
to him on 11 March 2013 at
his working station. These components belonged to the truck in issue.
[22] Mr Von Wielligh
testified further that after he had examined and analysed those parts
and in line with his own experience as
a mechanical engineer he came
to the conclusion that:
“
[T]he
separation of the spline occurred …at the rear axle. The …two
bolts [at the flanges at the rear axle] came loose,…two
bolts
remained in position when the flanges moved open due to the angle of
the serrations, they were forced apart and that caused
[a] bending on
the bottom bolts until they finally broke and then the driveshaft or
the propshaft, separated from the flange at
the rear end of the
vehicle. It would then fall down. It was rotating...and that is why
when the splines pulled out of that tube
there was some damage
because it was caused because it was bending. It then fell out, fell
onto the road. We have seen some scratch
marks which would be there;
it is typical of ending up on the street, on the tarred road. The
front section of the driveshaft with
the front universal still
coupled onto the gearbox, would then be free to swing to the side,
any side, it doesn’t matter,
swing to the side. It will stay
there due to centrifugal force and with the rotation of that engine
which is still running readily
fast at this point in time, it would
destroy anything in its way and is why the oil cooler, the retarders,
everything was knocked
to pieces by the swinging around piece of
driveshaft, everything was knocked remained attached to the gearbox.
The front section
of the driveshaft or propshaft with the front
universal remained coupled onto the box and was then free to swing to
the side. This
shock then caused breakage of the universal cups which
caused the failure of the front universal of the gearbox side.
[T]he
separation occurred at the rear end and because of this separation
due to the two bolts not being proper[ly] tightened once
that failed
and the driveshaft/propshaft dropped, it pulled out of the slip joint
and the remaining portion then swung around and
caused the damage.
The only reasonable conclusion that I
could draw was that the propshaft must have failed at the flanges at
the rear axle.
The reason for that was that at least two of the
four bolts were not properly tightened with a torque wrench
.”
[7]
(Own emphasis)
[23] His view was that
generally when the gearbox is put together, the bottom bolts are easy
to put in and tighten with a torque
wrench.  The top ones are
not easy to reach with the torque wrench.  It is usually
required that the vehicle be moved
forward or rearwards to turn the
propshaft properly and at a particular angle so that the top bolts
can be reached easily. Sometimes
as it has happened from time to time
in his experience the workers forgot to tighten the last bolt(s)
properly.
[24] Mr Von Wielligh
was of the view that considering the substantial damage on the rear
differential at the rear axle as depicted
on photographs 35 to 42
[8]
,
the breakaway of the propshaft was from the flange and not from the
universal. If the failure occurred at the front end first
as the
defendant argued, the gearbox would have come apart and the whole
propshaft would have fallen out.  With the vehicle
moving
forward, it would have ended up on the road and the propshaft
would have, taking into account its length, swung around
in such a
way that it would have destroyed  the chassis beams, the tanks,
everything in its way and would even have ended
up as a whole on the
road because of its length.  In this case it could not have been
the case. It was the small part of the
propshaft that swung around
and thus caused the damage at the rear part near the gear box side
only.
[25] Mr Von Wielligh was
clear and consistent in his evidence. Cross examination did not
expose any discrepancies or inconsistencies
in his evidence. He made
some concessions. He conceded that he didn’t interview the
driver of the truck to establish exactly
what transpired just before
the vibration or at what speed the truck was travelling or the road
conditions prior to the incident.
He conceded also that he did not
establish whether anyone else including the plaintiff had done work
to the propshaft
of the truck after it was delivered back
to the plaintiff after it was repaired the first time in December
2010.Neither did he
know who fastened the two bolts that were loose
and fell out. He maintained that his findings were, based on the
information he
was provided with by Mr Coetzee or Booysen that New
Vaal were the last people to work on the truck when the truck down
the first
time. He was also adamant that what the defendant’s
experts indicated was the cause of damage and how it could it have
happened
was improbable.
[26]
Mr
Petrus Johannes Lubbe
, the defendant’s mechanic over seven
years testified that he was the mechanic that refitted the propshaft
when the truck
was at New Vaal during December 2010.He testified
further that he could remember the truck in issue specifically, what
work was
done on it and that he and the apprentice he worked with on
the day in question, Pieter Botes, fastened and torqued the bolts and

the flanges connecting the differential with the propshaft.
[27]
During cross-examination it was revealed that he could not on his own
remember any work done on the truck in issue, besides
what was noted
on the worksheet
[9]
,
from which he refreshed his memory before the trial. He also admitted
that he could not remember whether the bolts were torqued
on that
specific day and/or if all four bolts were torqued. He could not
explain why the refitting of the propshaft did not form
part of the
worksheet and/or the account as far as the labour is concerned. He
could not say categorically whether he or his apprentice
torqued all
four bolts as prescribed on that specific day although as he insisted
they usually did. He conceded that, as the author
of the worksheet,
he did not indicate on the worksheet that the propshaft had to be
refitted. Secondly although not the author
of the statement of
account he could not explain why the costing for the refitting of the
propshaft was not reflected on the statement
of account. Ordinarily
New Vaal like all in the industry charged for any work done per the
time spent on such work. In this instance
thirty minutes.
[28]
Mr
Marc McKernan
testified that he was the Group After-Sales Manager
at New Vaal. He testified that once he was informed that the
allegations were
made New Vaal was responsible for the damage to the
plaintiff’s truck; he inspected the truck in the presence of Mr
Ronnie
Coetzee at the Ladybrand workshop. He disagreed with the
plaintiff’s on the cause of damage and consequently contacted
Mr
Lyster as an assessor, in his private capacity to obtain his
opinion.
[29] During
cross examination he admitted that when the claim was made against
New Vaal he called New Vaal’s insurance company
to institute a
claim. Mr Lyster’s opinion was sought in that respect not
necessarily to determine the cause of the damage
and how and where it
started.
[30]
Mr
Gary Alexander Brown
testified that during 2010/ 2011 he was
working for Mercedes Benz, South Africa, as a Technical Specialist
team leader, Commercial
Vehicles After-Sales. Although not called as
an expert, he was a properly qualified heavy vehicle mechanic. In
2013 he was working
for New Vaal as the general manager After Sales.
Whilst at Mercedes Benz during 2010 he, as part of the warranty
department and
the Technical Department, supplied the damage code,
04102047, to John Williams. The mileage on the truck in issue,
449,621km, was
within the warranty period of the truck i.e.
450,000km. If the truck was below 450,000km Mercedes Benz had to pick
up the tab so
to speak for the damage. In this instance Mercedes Benz
did not pick up the tab. Instead it only paid part of the damage,
R107,
000. 00 as a goodwill gesture.
[31] During
cross examination he admitted that he was not the author of the
document he was referred to on pages 157 to 159 which
depicted the
code he supplied to Mercedes Benz South Africa; that the R107, 000.00
was given directly to the dealership, John
Williams, Ladybrand, not
the customer. His evidence did not advance the defendant’s case
in any way.
[32]
Mr
Anthony Lyster
, the defendant’s expert testified that he
has done his apprenticeship in mechanical engineering since 1958;
worked for different
companies in Malawi and South Africa when he
migrated to South Africa in 1967 specialising in major engine
overhauls, repairs,
medication and design work until he formed his
own company Lyster Assessment Services in 1999. Although he did not
have any formal
education apart from schooling he worked in the same
area of repairing and maintenance of engines of trucks, tractors as
well as
heavy plant machinery over three decades. Under Lyster
Assessment Services he represents insurance companies in claims
against
them. He does defective workmanship claims and accident
claims; reconstruction of accident scenes and assessment in respect
of
mechanical failures.
[33] He
testified further that on 8 March 2011, almost six weeks after the
incident had occurred on 28 January, he accompanied Mr
McKernan to
Mercedes Benz, Ladybrand, to look at the engine of the truck in
issue. His first observation upon his arrival was that
a new gearbox
was already fitted, the propshaft in dispute i.e. the long and short
part thereof were on a drum. As he inspected
the parts available for
inspection and after making his observations he made notes. He
thereafter met with Mr Von Wielligh to discuss
what they had
observed. They disagreed on the cause of the damage. Each compiled
his own report.
[34] In
his conclusion in his report he noted:
“
If
a person studies the way in which this propshaft connects together,
this scenario (which is that all bolts were not properly
fastened as
set out in paragraphs 2 and 3) does not make sense to have done this
damage. If the rear flange had come loose on the
propshaft, the end
piece of the propshaft would have come out and fallen into the road
as it is on a sliding joint that allows
for movement from the rear
differential. Because it can pull apart…The remaining front
portion would have spun around at
a huge velocity and damaged the
chassis ,the tanks, the air piping and the surrounding components,
but I found no damage here…
A further scenario could be that the front universal joint had
failed, but then again this is also strange because there would
have
been so much vibration going through the truck that the driver would
have had to know that something was wrong and would be
almost
impossible to drive the vehicle…The front universal shows
signs of collapse and severe hammering but the universal
crossing
seems undamaged…
What caused the damage to the truck is the front universal
collapsed…”
[35] During
cross examination, he refused to accept that the longer end of the
propshaft was retrieved at the back of the truck
after the occurrence
of the incident. He was constrained to admit that if the bolts had
been fastened by hand at the flanges at
the back, by even a strong
person, only about 10 nm could have been obtained and not 160 nm as
prescribed. In this instance, his
evidence was that the truck would
have vibrated violently and would not have able to travel more than
100 km. He was at pains to
concede that he had originally agreed with
Mr Von Wielligh on the cause of the damage to the truck, at a meeting
they had during
March 2011.
[36]
The plaintiff’s claim is seated in
contract, an oral agreement.The terms and conditions of the agreement
were common cause
between the parties as confirmed in their opening
adress. In its Particulars of Claim
[10]
the plaintiff alleged that the defendant failed to comply with its
obligations by failing to repair the truck in a proper and
workmanlike manner in that the truck’s propshaft broke off on
28 January 2011,fell out of  the truck and caused damage
to the
truck. Although the defendant in its plea as well as in Request for
Further Particulars did not deny the existence of the
agreement
between the parties as couched (i.e that the defendant had the
obligation to refit the propshaft properly and in a workmanlike

fashion) it later argued that the plaintiff actually relied on a
delict but failed to plead or even prove same. It argued further
that
the plaintiff was obliged to seek its remedies within the contours of
the agreement and was not entilted to resort to a delictual
remedy.
On that basis the claim ought not to succeed.
[37] In order
for the plaintiff to succeed in this case it must prove on a balance
of probabilities that the defendant failed to
comply with the terms
and conditions of the contract between the parties in that it failed
to complete the work in a proper and
workmanlike fashion in that the
truck’s propshaft came loose on 28 January 2011 and caused
damage to the truck. On the pleadings
it is clear  that the
plaintiff relied on the agreement  between the parties i.e The
obligation to perform work in a
workmanlike manner was part of the
agreement,not a delict as the defendant later argued.
[38] In any
event where there may be a concurrence of claims as it seems to be
argued by the defendant in its closing arguments
,the court in
Holtzhausen v Absa Bank Ltd
2008 (5) SA 630
(SCA)
stated the position as follows:
‘
[6]
Lillicrap decided that no claim is maintainable in delict where
the negligence relied on consists in the breach of a term
in a
contract. That is quite apparent from what was said by Grosskopff AJA
at 499A - 501H. The passage begins:
‘
In
applying the test of reasonableness to the facts of the present case,
the first consideration to be borne in mind is that the
respondent
does not contend that the appellant would have been under a duty
to the respondent to exercise diligence if no
contract had been
concluded requiring it to perform professional services.’”
The court emphasised at 499D - F:
“
The
only infringement of which the respondent complains is the
infringement of the appellant's contractual duty to perform specific

professional work with due diligence; and the damages which the
respondent claims, are those which would place it in the position
it
would have occupied if the contract had been properly performed. In
determining the present appeal we accordingly have to decide
whether
the infringement of this duty is a wrongful act for purposes of
Aquilian  liability.”
The court
[11]
at approved the following passage written by
JC
van der Walt
that :
“
The
same conduct may constitute both a breach of contract and a delict.
This is the case where the conduct of the defendant constitutes
both
an infringement of the plaintiff's rights ex contractu and a right
which he had independently of the contract.”
The judgment went on to point out (at 500A - B)
that:
“
Apart
from the judgments in
Van Wyk v Lewis
(supra) this Court has never pronounced on whether the negligent
performance of professional services, rendered pursuant to
a
contract, can give rise to the actio legis Aquiliae.”
The Court then gave reasons why Aquilian
liability should not be extended to cover the respondent's claim (at
500F - 501G) and concluded
(at 501G - H):
“
[6] To sum up, I do not consider that
policy considerations require that delictual liability be imposed for
the negligent breach
of a contract of professional employment of the
sort with which we are here concerned.
[7]
Lillicrap
is not authority for the more general
proposition that an action cannot be brought in delict if a
contractual claim is competent.
On the  contrary,
Grosskopff AJA was at pains to emphasise (at 496D-I) that
our law
acknowledges a concurrence of actions where the same set of facts can
give rise to a claim for damages in delict and in
contract, and
permits the plaintiff in such a case to choose which he wishes to
pursue.
Thus in
Durr v Absa Bank Ltd
1997 (3) SA 448
(SCA)
([1997]
3 All SA 1)
, a case  which concerned the duties of
an investment advisor recommending investment in debt-financing
instruments, Schutz
JA found no difficulty in saying (at 453G):
‘
The
claim pleaded relied upon contract, alternatively delict, but as the
case was presented as one in delict, and as nothing turns
upon the
precise cause of action, I shall treat it as such.’”
[39] The
Court explained the position as follows in
NSC Carriers &
Forwarding CC and Others v Hyprop Investments Ltd and Others
2013 (1) SA 340
(GSJ):
“
[18] Then there is of course the rule in
Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A) about a party  who is in a contractual
relationship with another, being obliged to seek his remedies within
the contours
of the agreement and may not as a rule resort to a
delictual remedy. Insofar as that rule is concerned the plaintiff
contends that
it is not unsuited. It relies on the decision in
Holtzhausen v Absa Bank Ltd
2008
(5) SA 630
(SCA), especially in paras 7 – 10. That court held
that the
Lillicrap
case is not authority for the proposition that  a party to
a contract can sue only in contract merely because it is possible
to
construct a claim in contract. It also held that if a party can frame
a claim clearly outside of the contract, in delict, it
may choose to
do so. Cloete JA held at follows in paras 7 – 8:
'
Lillicrap
is not authority for the more general proposition
that an action cannot be brought in delict if a contractual claim is
competent.
On the contrary, Grosskop AJA was at pains to emphasise
(at 496D-I) that our law acknowledges a concurrence of actions where
the
same set of facts can give rise to a claim for damages in delict
and in contract, and permits the plaintiff in such a case to choose

which he wishes to pursue. Thus in
Durr v Absa Bank Ltd
1997
(3) SA 448
(SCA) ([1997]
3 All SA 1)
, a case which concerns the
duties of an investment advisor, recommending investment in
debt-financing instruments, Schutz JA found
no difficulty of saying
(at 453G):
‘
The
claim pleaded upon contract, alternatively delict, but as the case
was presented as one in delict, and nothing turns upon the
precise
cause of action I shall treat it as such.’
In the present matter the pleadings cover a claim for damages for
negligent misstatement. The plaintiff does not rely on the breach
of
any contractual obligation which the defendants or its servants may
have owed him as constituting the negligence for this claim.
The
plaintiff's case as it was presented in evidence was that a right
which he had  independently of any such contract,
was
infringed. The decision in
Lillicrap
is accordingly of no
application.'
[19] To advance its case the plaintiffs must meet this test. It is
true that the plaintiffs do not invoke any right under the
contract
or allege any breach of it by the defendants. Significant reference
is nevertheless made to the leases and to their
terms. However,
these references are merely to coherently contextualise the claim
which is, after all, a complaint about wrongful
inducement to act to
their prejudice, which prejudice occurred in the form, at least in
part, of signing the leases.
[20] I am therefore satisfied that, upon a proper reading of the
claim as pleaded, the plaintiffs do not trespass in this respect

across the line of contract.”
[40] As I indicated above
the plaintiff’s case was at all times based on the agreement
between the parties. The plaintiff’s
claim is completely
distinct from a delict or a concurrence of claims as set out in the
cases above. The reliance on such cases
by the defendant was simply
misplaced because in its plea and throughout the trial it did not
dispute such claim but in fact pleaded
that
“[I]t
complied with all its obligations in terms of the oral agreement
between the parties as set out in paragraph 3 of the
Particulars of
Claim.”
[41] Paragraph 3 of the Particulars of Claim reads:
“Op
of ongeveer 15 Desember 2010,en te Bethlehem het eiser, soos
verteenwoordig deur Mnr J Botha en werknemers van Mercedes
Benz Suid
Afrika, en verweerder soos verteenwoordig deur sy behoorlike
gevolmagtigde werknemers, ’n mondelingse ooreenkoms
aangegaan,
met die volgende uitdruklike, alternatiewelik geïmpliseerde
terme.
3. Die
herstel werk deur verweerder onderneem sal behoorlik en vakkundig van
aard wees…”
[42]
Both parties led evidence of experts to prove their case.The extent
to which a court may rely on such evidence has been dealt
with in
numerous case. In
Schneider &
Others v AA & Another
2010 (5)
SA 203
(WCC) the Court summed up the role of an expert
[12]
:
“
...In
Zeffertt, Paizes & Skeen
The
South African Law of Evidence
at
330, the learned authors, citing the English judgment of
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (The
'Ikarian Reefer')
[1993]
2 Lloyd's Rep 68
at 81, set out the
duties of an expert witness thus:
'1. Expert evidence presented to the court should be, and should be
seen to be, the independent product of the expert uninfluenced
as to
form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the
court by way of objective, unbiased opinion in relation to matters

within his expertise . . . . An expert witness should never assume
the role of an advocate.
3. An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question
or issue falls outside his expertise.
5. If an expert opinion is not properly researched because he
considers that insufficient data is available, then this must be

stated with an indication that the opinion is no more than a
provisional one. In cases where an expert witness who has prepared
a
report could not assert that the report contained the truth, the
whole truth and nothing but the truth without some qualification,

that qualification should be stated in the report.'”
[43] According to
Harms
[13]
:
“
The
function of an expert is to assist the court to reach a conclusion on
matters on which the court itself does not have the necessary

knowledge to decide.”
[44] Mr
Von Wielligh is a highly qualified mechanical engineering of over
three decades. His expertise in the area was not cast
in doubt taking
into consideration his evidence and viewpoints combined with the
inspection he did when the incident was still
fresh and the damages
were still clearly visible taking into account the time he spent
examining the parts not long after the incident
occurred. He was
objective and made concessions were necessary.
[45]
His evidence was clear that two of the four bolts on the flanges
connecting the differential with the propshaft at the back,
were not
properly fastened or torqued, which caused friction over a
time-period, and an eventual breakage; that when the bolts
broke at
the flanges at the back, the long side of the propshaft came loose,
slipped out of the joint and fell to the tarmac which
evidence
corresponds with the damages evident on the long part of the
propshaft; that the damage caused to the gearbox and gearbox
bell
housing and related parts in the vicinity of the gearbox, was caused
by the swinging around of the shorter end of the propshaft
after the
longer end has slipped out of the joint slip. This was also evident
from the damage in the vicinity of the gearbox depicted
on the
photos.
[46]
His evidence fitted in with what Mr Likotsi explained that the long
part of the propshaft was found at the back of the truck
after the
occurrence of the incident. This was given credence by Mr Lyster who
agreed with the findings as elicited by Mr Von Wielligh
during their
meeting during March 2011. He was corroborated by Mr Coetzee, who
although not an expert had been working in the same
area, mechanical
engineering for John Williams, over three decades, in that from the
outset he could see that the damage could
not have been what was
initially thought it was but the propshaft. Mr Lyster inadvertedly
also corroborated him when he also stated
that the universal was
intact at the back.
[47] He
came through as an impressive witness even during cross examination:
Answering all questions; making concessions where necessary;

deferring some matters to relevant witnesses without making any
assumptions on things he had no personal knowledge about; and
considering options and different scenarios presented to him by the
defence.
[48]
After cross examination, and considering his evidence as a whole, I
had no reason not to accept his evidence as honest, credible
and
reliable.
[49] Mr
Botha’s evidence and that of Mr Likotsi indicated one thing
clear that there was no other person or service provider
that worked
on the propshaft except cleaning the radiator. To clean the radiator
one need not fiddle with the bolts to the propshaft
or torque bolts.
There was no reason to speculate on who else could have worked on
refitting the propshaft. The period between
21 December and January
2011 was not that long. No other evidence was put before the court to
think otherwise. It would still not
make sense for the plaintiff to
have worked on the truck on major parts when it was aware that it was
under guarantee and could
be repaired professionally by Mercedes Benz
anytime.
[50]
The defendant’s expert, Mr Lyster on the other hand was not an
impressive witness. He failed to give logical answers
to simple
questions  by simply refusing to consider scenarios presented to
him including Mr Likotsi uncontested evidence that
the long part of
the propshaft was found behind the truck.
[51]
In this instance he did not act as the defendant’s an insurance
assessor but accepted instructions on a private basis
from the Mr
McKernan, to give him an opinion as to whether to claim from the
defendant’s insurance company or not.
[52] In
his initial report (which was the only report), he indicated that a
further report will follow after further investigations
but never
submitted another report to clarify anything which he reflected upon
after his investigations except to complain about
the fact that he
was only summoned to John Williams Motors, Ladybrand for the
inspection after a reconditioned gearbox had been
fitted to the
truck; that the propshaft up for inspection by him and Mr Von
Wielligh, was not the propshaft utilised in the plaintiff’s

truck at the date of occurrence without any substantiation and even
reneging from that statement during cross-examination.
[53] He
was not of much assistance to this Court by refusing to answer
certain questions and refusing to reflect and consider other

scenarios presented to him by counsel for the plaintiff. For instance
in refusing to consider Mr Likotsi’ s uncontroverted
evidence
that the long part of the shaft was behind the truck after the
incident he was conscious that in that instance he would
not be able
to explain the clear damage to the longer end of the propshaft.
Mostly he refused to do so not because he could not
but because he
did not want to deviate from what he wanted to be accepted as the
only answer: his report with all its flaws ranging
from typing
errors, incorrect dates on when he started to work in this area and
importantly the fact that he initially shared the
same view with Mr
Von Wielligh on the cause of the damage which was never removed from
his report yet disavowed. He then lamely
attempted to wriggle out of
it by claiming that he felt ambushed by people from John Williams
during the meeting.
[54] He
testified in general, as counsel for the defendant would acknowledge
later, in “a stilted manner under cross examination.”

This for no apparent reason for a man who stated he had testified
many times in courts in similar matters. I could, consequently,
not
rely on his opinion as it was clearly biased, not honest and somewhat
not flowing with the event as it unfolded as Mr Likotsi
explained in
a very unsophisticated yet simple manner.
[55] Mr
McKernan and Mr Brown’s evidence did not take the defence case
anywhere. Mr Lubbe’s evidence was also not reliable
as he
clearly could not remember much about this incident. Understandably
so, because of the number of trucks he worked with between
the period
he testified about and when he worked on the truck in issue.
[56] Having
considered all the evidence and taking into consideration the fact
that the onus rests on the plaintiff, I am satisfied
that the
plaintiff has on a balance of probabilities proved that
(a)
the
first part of the propshaft to come loose was the long part ,
considering the clear damage on it as a result of breaking off
and
falling to the road due to the bolts at the flanges being loose and
not properly torqued; and
(b)
there
was no other person or service provider that worked on the truck
between 21 December 2010 and January 2011 when the truck
broke down
for the second time. I say so unreservedly because there was no other
evidence other than that which the plaintiff led
that since the truck
was repaired by the defendant between 20 and 21 December 2010, no one
else worked on the truck to the extent
that the propshaft had to be
removed and refitted except this one instance that the defendant
worked on it.
[57] In
the circumstances and on the probabilities, the only plausible reason
would be that the bolts were not properly torqued
as prescribed by
Mercedes Benz South Africa. If the aforesaid bolts were not properly
torqued, it goes without saying that the
defendant’s employees
did not refit the propshaft in a proper workmanlike fashion, and that
the defendant in the circumstances
failed to comply with its
obligations in terms of the oral agreement between the parties.
The
conclusion that I reach is that the defendant caused the damages to
the plaintiff’s truck.
[58] In the circumstances, the following order is made:
ORDER
Judgment is granted in favour of the plaintiff, on
the merits of the action, with costs.
B.C.
MOCUMIE, J
On behalf of plaintiff: Adv
P. Zietsman SC
Instructed
by:
Matsepes
Inc
BLOEMFONTEIN
On behalf of defendant: Adv
T.P. Kruger
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
[1]
See evidence of J
H Botha at page 221 - 250 of the transcribed record.
[2]
The manager at
John Williams Sales Division
[3]
See page 118-220
of the transcribed record.
[4]
A triangle is used
to warn other road users of a stationary vehicle.
[5]
The truck was
pulling a horse and trailer on the day in question.
[6]
Mr Coetzee was not
called as an expert witness. Nor was the prescribed Expert Notice
given in terms of the Rules of Practice of
this Court. Despite the
plaintiff’s attempt to rely on him as such, he could not be
relied on as an expert as correctly
so objection to by the
defendant, he was treated as an ordinary witness.
[7]
See page 51-52
[8]
Scratches and
serrations on the flange on the differential or rear axle (photo
35).Photo 36 is a closer range or from another
angle of photo 35.
Photo 38 depicts the flange on the propshaft at the rear axle.
Photograph 39 shows the serration or groves
on the propshaft of the
coupling.
[9]
The worksheet was
admitted as exhibit C.
[10]
Para 6 of the
Particulars of Claim, Transcript, p233
[11]
At p449I
[12]
At 211E –
212B
[13]
Civil Proced
ure
in the Superior Courts,
B266
with reference to Holtzhausen v Roodt
1997 (4) SA 766
(W).