About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 148
|
|
Joe Regal Taxidermy CC v Muizen Motors (Pty) Ltd (A24/2014) [2014] ZAFSHC 148 (4 September 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: A24/2014
In
the matter between:-
JOE
REGAL TAXIDERMY CC
…..........................................................................................
Appellant
and
MUIZEN
MOTORS (PTY) LTD
…......................................................................................
Respondent
CORAM:
MOLOI, J
et
POHL, AJ
JUDGMENT
BY:
POHL,
AJ
HEARD
ON:
1
SEPTEMBER 2014
DELIVERED
ON:
4
SEPTEMBER 2014
POHL,
AJ
BACKGROUND
[1]
This is an appeal from the magistrate’s court against the
magistrate’s judgment and order of absolution from the
instance. There is no cross-appeal.
[2]
The appellant’s claim against the respondent is based on
contract. From the particulars of claim it appears that
the
appellant contracted with the respondent to perform a mechanical
service to the appellant’s vehicle. It is the appellant’s
case that the respondent breached that contract in that:
(i)
it failed to perform the mechanical service with the necessary skill
and diligence and in a proper workmanlike fashion;
(ii)
it failed to replace the vehicle’s gearbox oil; and
(iii)
failed to insert the correct amount of gearbox oil.
It
is furthermore the appellant’s case that as a result of the
said breach of contract the vehicle’s gearbox was damaged.
In
the premises the appellant suffered damages in the amount of
R14 802.40, being the fair, reasonable and necessary costs
of
repairs to the vehicle.
[3]
In its plea, the respondent pleaded that it was only contracted to
perform a lubrication service to the vehicle and other incidental
work. The instruction was not to change the gearbox oil.
It however did fasten two bolts on the gearbox and also added
500ml
of oil to the gearbox.
COMMON
CAUSE FACTS AND/OR FACTS NOT IN DISPUTE
[4]
It would appear from the record that the following facts are common
cause and/or not in dispute:
(a)
The job card which was completed by the administrative clerk of the
respondent and received in evidence as exhibit “C”,
reflects the work that had to be done to the vehicle and was duly
signed by the sole member of the appellant, Mr Regal, after it
was
made.
(b)
Exhibit “C”, reflects only the following work that had to
be done to the vehicle:
(i)
service;
(ii)
small oil leak;
(iii)
put front number plate on;
(iv)
rotate tires; and
(v)
check brakes.
(c)
Exhibit “C” also contains a portion, which was apparently
completed after the work was done, and which indicates
what
consumables were used. It
inter
alia
indicates that 500ml of gearbox
oil were used.
(d)
When the gearbox was drained by the appellant’s second witness,
one Harding, it was found it contained only 500ml of gearbox
oil.
This witness is a specialist gearbox mechanic and he performed the
repairs to the gearbox subsequent to the service
the respondent
performed on the vehicle. The gearbox was supposed to have 2.7
litres of oil in it.
(e)
The fourth, fifth, sixth gears were heat damaged due to the fact that
there was too little oil in the gearbox.
(f)
The oil leak that the appellant complained of stopped after the
respondent fastened the two nuts on the vehicle’s gearbox.
(g)
The vehicle in question was bought by the appellant as a second hand
vehicle and it had already done 105 234km at the time of
the said
lubrication service.
(h)
An hour after Mr Regal collected the vehicle from the respondent
after the service was completed, he telephoned Mr Kruger of
the
respondent and told Mr Kruger that he forgot to mention to him that
he also had problems with the fifth gear of the vehicle.
He
indicated that it made a noise when he wanted to engage the fifth
gear. Mr Kruger responded by telling the appellant and
advised
him that he, the appellant, should take the vehicle to a gearbox
specialist as the respondent was not an expert on gearboxes.
(i)
Regal, however, waited for almost a month before he took the vehicle
to the gearbox specialist, the witness Harding. In
this time
the vehicle had done in access of a 1 000km since the service by
the respondent.
(j)
Regal had problems with the fifth gear of the vehicle for at least
two weeks prior to him taking the vehicle to the respondent
for the
service.
(k)
The vehicle made a screeching sound when the fifth gear was engaged.
The cause of this screeching sound was, however,
not the lack of oil
in the gearbox but was caused by a worn-out part known as a “syncro”.
(l)
The appellant’s expert witness, Harding, conceded that he could
not say for how long and for what distance the vehicle
travelled with
only 500ml of oil in its gearbox prior to the vehicle being serviced
by the respondent. He also conceded that
he could not say what
damage was thus caused to the gearbox prior to the vehicle being
serviced by the respondent.
(m)
The respondent was not a gearbox specialist.
(n)
The gearbox did not have a dipstick to measure the amount of oil it.
The insufficient level of oil in the gearbox, however,
became
immediately apparent to the appellant’s expert witness when the
gearbox specialist, Harding, opened it.
THE
ISSUES IN DISPUTE
[5]
The first issue in dispute was whether or not the appellant
instructed the respondent to replace the gearbox oil; the second
issue in dispute was whether or not the respondent did put 500ml of
gearbox oil into the gearbox and the third issue in dispute
was
whether or not the damage to the fourth, fifth and sixth gears was
causally connected to anything the respondent did or did
not do or
should have done but did not do based on the contract between the
parties.
THE
ONUS
[6]
It is trite that the party who relies on a contract bears the
onus
to prove same. That includes the causal connection between the
alleged breach of contract and the alleged consequential damages:
Afrox Health Care Beperk v Strydom
2002 (6) SA 21.)
In casu
the
onus
thus rested squarely on the appellant.
THE
EVIDENCE IN RELATION TO THE ISSUES IN DISPUTE
[7]
The first issue in dispute is the question whether or not the
appellant instructed the respondent to replace the gearbox oil:
It is first of all important to have regard to the fact that the job
card, exhibit “C” does not contain an instruction
to do
so. Secondly, it must be borne in mind that Regal did not know
what the origin of the oil leak was. Thirdly,
Regal only told
the respondent’s Kruger after he collected the vehicle that he
had experienced trouble with the gearbox prior
to the said
lubrication service. The appellant’s own expert witness,
Harding, testified that under normal circumstances
the gearbox oil
would not be replaced during a normal lubrication service such as
done by the respondent. Although Regal testified
that a day prior to
the service he told Kruger to replace the gearbox oil, this was
disputed by the respondent. This allegation
was,
inter alia,
not borne out by the job card nor the fact that he did not know what
the origin of the oil leak was. I am satisfied that the appellant
did
not instruct the respondent to replace the gearbox oil.
[8]
The fact that the respondent’s mechanic fastened the two nuts
on the gearbox does not mean that respondent was instructed
to
replace the gearbox oil. If it is accepted that the respondent
added 500ml of oil, it does not necessarily follow that
it was
instructed to do so. On the evidence it was done because they
realised that there was a small oil leak at the gearbox
which was
rectified by the fastening of the two nuts. In the premises the
appellant did not succeed to prove on a balance
of probabilities that
it was a term of the contract between the parties that the respondent
had to or was instructed to, replace
the gearbox oil. Regarding
the issue whether or not the respondent did add 500ml of oil to the
gearbox, the following must
be borne in mind: The job card indicates
that 500ml of gearbox oil was in fact used. Only 500ml of oil
was found in the gearbox
when it was eventually opened. The
witness, Kruger, stuck to his evidence that he in fact did so,
despite the fact that the
access to the filling point on the gearbox
was difficult to reach. He used an adaptive devise to do so.
In the premises
I am satisfied that respondent did in fact add 500ml
of gearbox oil.
[9]
With regards to the third issue in dispute, namely whether or not
there is a causal connection between the damage to the gearbox
and
something the respondent was contractually obliged to do or not to
do, the following must be borne in mind: I already found
that it was
not part of the instruction to the respondent to replace the gearbox
oil. The most damning piece of evidence
to the appellant’s
case in this regard, was the evidence by its own expert witness,
Harding, where he testified that he could
not say for how long and
for what distance the vehicle travelled with only 500ml of oil in its
gearbox prior to the vehicle being
serviced by the respondent.
He also conceded that he could not say what damage there was to the
gearbox prior to the vehicle
being serviced by the respondent.
Furthermore it is common cause that the appellant was advised by the
respondent on the
day of collection of the vehicle after the
lubrication service, to take the vehicle to a gearbox expert.
The appellant, however,
decided not to do so and used the vehicle
instead for almost a month before it did so. In this month the
vehicle travelled
a further 1 000km or more.
[10]
In the premises it cannot be said that the appellant proved on a
balance of probabilities that the damage to the gearbox was
causally
connected to anything that the respondent was contractually obliged
to do or not to do, even if a tacit or an implied
term is read into
the contract -
South African Maritime
Safety Authority v Mckenzie
2010
(3) SA 601
(SCA) at page 610 paragraph 12. The court
a
quo
could have dismissed the
appellant’s claim with costs. It however granted
absolution from the instance. As there is
no cross appeal before this
court, this court is not inclined to interfere with that order.
[11]
I would therefore make the following order:
1.
The appeal is
dismissed with costs.
________________
L.
le R. POHL, AJ
I
concur, it is so ordered.
________________
K.
J. MOLOI, J
On
behalf of appellant: Adv. M.D.J. Steenkamp
Instructed
by:
Maree,
Van Wyk Inc.
BLOEMFONTEIN
On
behalf of respondent: Adv. W. Oberholzer
Instructed
by:
EG
Cooper Majiedt Inc
BLOEMFONTEIN