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[2012] ZAGPPHC 19
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Mnguni v Prima Inspectacar Wonderboom (Pty) Ltd (16546/2010) [2012] ZAGPPHC 19 (9 February 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH, PRETORIA)
Case
no. 16546/2010
DATE:09/02/2012
In
the matter between:
MANDLA
STANLEY
MNGUNI
....................................................................................
PLAINTIFF
and
PRIMA
INSPECTACAR WONDERBOOM (PTY)
LTD
...........................................
DEFENDANT
JUDGMENT
LEGODI
J
1.
The issue before me is whether the plaintiff is entitled to claim the
return of a deposit in the amount of R 70 000.00 that was
paid to the
defendant as a deposit, towards the purchased price of Toyota Hillux
LDV motor vehicle, without having alleged in his
particulars of
claim, repudiation and acceptance of such repudiation? And if so,
whether the conduct of the defendant in failing
to de deliver the
said motor vehicle on the date the full purchase price was paid,
entitles the Plaintiff to the refund of R 70
000.00, without having
alleged and proved cancellation of the agreement?
2.
Initially when this matter was laid before me, parties sought to
place on record what they regarded as being the main issue to
be
decided in this case. Amongst others, they suggested that the issue
was whether there was ever an agreement of sale concluded
between the
plaintiff and defendant. For the following background I do not think
this was ever an issue.
2.1
On the 27 November 2009, the plaintiff stopped at the defendant's
place of business. The defendant is a dealer in sales of cars.
The
plaintiff having seen a Toyota Hillux LDV, got interested in it. He
paid R1000.00 referred to as a "holding deposit".
2.2
On the 4 December 2009, the plaintiff returned to the defendant place
of business. He paid a deposit of R70 000.00. This left
the balance
on the purchased price to be R 138 935.00.
2.3
On the 10 December 2009, the plaintiff and his father returned with
the balance of the purchase price, in the form of a bank
guaranteed
cheque in the amount of R138 935.00. Thereafter, the defendant
attempted to deliver the bakkie to the plaintiff. It
however could
not start. Attempts were made to start, it by using jumpers. Still it
could not start. The plaintiff got fed up and
demanded
the return of the money already paid to the defendant.
2.4
The defendant refused to pay. The following day the cheque in the
amount of R 138 935.00 was stopped by the plaintiffs father.
Thereafter, the plaintiff instituted the present proceedings in terms
of which the plaintiff claimed restitution of deposit that
was paid
in the sum of R70 000.00 on the 4 December 2009.
3.
From the above facts, there can be no doubt that there was a sale
agreement concluded between the plaintiff and the defendant.
Therefore, the suggestion as contained in paragraph 7 of the
particulars of claim that no contract of sale between the parties
was
ever concluded ought to be rejected. For the purpose of the issue
raised in paragraph 1 above, I do not think that it is material
whether the agreement was oral or written, although the defendant
seeks to retain the deposit based on a forfeiture clause in the
agreement.
4.
Now, coming back to the issue as set out in paragraph 1 of this
judgment,
it might be important to deal with the pleadings first,
in paragraph 6 of the particulars of claim the cause of action is
articulated
as follows:
On
or about the 9th December 2009, the plaintiff tendered to pay to
Defendant the balance of the purchase price in the sum of R138
935.00. The defendant failed\neglected\refused to deliver the Toyota
vehicle described above to the Plaintiff, against payment
of the sum
of R138 935.00. in fact, on or about the 9th December 2009, the
parties discovered that the Toyota vehicle in question
could not be
started and therefore could not be delivered by the Defendant to the
Plaintiff, even if the full price was paid."
5.
I may mention that the evidence suggested that payment in the sum of
R138 935.00 was made on the 10 December 2009. I now turn
to deal with
the issue raised above.
WHETHER
THE PLAINTIFF IS ENTITLED TO CLAIM THE RETURN OF A DEPOSIT IN THE
AMOUNT OF R 70 000.00 WITHOUT HAVING ALLEDGED REPUDIATION
AND
ACCEPTANCE THEREFORE?
6.
It is common cause that the transaction between the plaintiff and
defendant was a cash transaction. The purchase price was R208
935
inclusive. The plaintiff paid R70 000.00 on the 4 December 2009. The
defendant failed to deliver immediately upon payment of
the balance
of the purchased price. It failed to do so, because the motor vehicle
could not start. Apparently, the plaintiff saw
this as a breach on
the part of the defendant. Put it differently, failure to deliver
immediately upon payment of the sum of R138
935.00 being the balance
of the purchased price, was a repudiation.
7.
Repudiation is a form of a breach, it gives rise to a right to cancel
the contract. The party who asserts that the other party
has
repudiated the contract must allege and prove the allegation. (See
Schlinkmann v van der Walt
1947 3 All SA 92
(E),
1947 (2) SA 900
(E)
919). To rely on repudiation the innocent party allege and prove:
a)
repudiation of a fundamental term of the contract that is conduct
that exhibits objectives a party is deliberate and unequivocal
intention not to be bound the contract.
b)
An election by the innocent party to terminate, and
c)
Communication of the election to the guilty party. (See Highveld
Properties (Pty) Ltd v Bailes
1999 4 All SA 461
(A),
1999 (4) SA 1307
(SCA).
8.
However, one has to look at a case on which the defendant was called
upon to answer. Firstly, the suggestion that the plaintiff
on the 9
December 2009, tendered to pay the balance of the purchase price
cannot be correct. It was not supported by the evidence.
The
evidence
showed that the balance of the purchase price was
actually paid and a bank guaranteed cheque was stopped when the motor
vehicle
could not be delivered upon payment thereof.
9.
Secondly, the plaintiff having alleged failure, neglect or refusal to
deliver the motor vehicle, and the impossibility of such
delivery due
to the fact that the motor vehicle could not start, decided not to
rely on repudiation and acceptance thereof as his
cause of action.
Instead, he sought to suggest in paragraph 7 of the particulars of
claim that no agreement of sale was concluded.
10.The
defendant was therefore called upon to answer the claim for payment
of R 70 000.00 based on the fact that the agreement of
sale was never
concluded between the parties. As I said earlier in this judgment,
this cannot be correct.
11.
The evidence showed the existence of such an agreement. Secondly, the
evidence showed that when the motor vehicle was to be
delivered, it
could not start. This, in my view, was evidence outside pleadings.
The plaintiff did not seek amendment of its particulars
of claim and
in particular paragraphs 6 and 7 thereof. Just on this alone, the
plaintiffs claim ought to be dismissed. I now turn
to deal with the
other issue although it is not necessary to do so.
WHETHER
THE PLAINITFF WOULD HAVE BEEN ENTITLED TO THE RELIEF SOUGHT WITHOUT
HAVING ALLEGED CANCELLATION OF THE AGREEMENT?
12.
As I said earlier in this judgment, the plaintiff in his particulars
of claim approached the matter on the basis that there
has never been
an agreement. There was of course, such an agreement.
13.
Cancellation of an agreement is a form of a remedy based on a breach
of one's obligation in terms of an agreement. Repudiation
of an
agreement entitles the innocent party to cancel an agreement and
claim damages or in the present case, restitution. Cancellation
of an
agreement is in a way, a form of acceptance of repudiation. (See
Datacolor International (Pty) Ltds v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 2 SA
284
(SCA).
14.
Cancellation can be by the aggrieved party, having given the guilty
party such a notice of termination and or by making an allegation
of
cancellation in either particulars of claim or in the plea. This can
be done without the assistance of the court and any subsequent
court
order thereto, would just simply be a confirmation of the
cancellation. However, a claim for cancellation, that is asking
the
court to cancel, is normal, and the desirability of having an order
of cancellation is that, the status of the contract is
clarified, and
there can be no doubt on the existence or otherwise of the contract.
This is a well recognised principle. (See Senia
(Pty) Ltd v Wheeler
1958 1 SA 555(A)
560-561).
15.
A claim for restitution of what has been delivered or paid in terms
of an obligation to perform, has to be preceeded by cancellation
of a
contract. (See Inzalo Communication & Event Management (Pty) Ltd
v Economic Value Accelerations (Pty) Ltd
2008 6 SA 87
(W).
16.
In my view, even if the plaintiff had alleged and proven repudiation
and acceptance thereof, failure to allege cancellation
of the
agreement, would have been fatal to the plaintiffs claim for
restitution. It is the acceptance of repudiation of the agreement
and
cancellation thereof that should entitle an innocent party to claim
restitution. Of course the plaintiff did not approach the
court based
on repudiation, acceptance thereof and\or cancellation.
THE
CONVENTIONAL PENALTIES ACT
17.
I now turn to deal with another issue that was raised or sought to be
argued by the plaintiff. The plaintiff sought to argue
entitlement to
the refund of R70 000.00 based on the provisions of the Conventional
Penalties Act, 15 of 1962. I deal with this
issue, on the assumption
that there was a written sale agreement, the terms and Conditions of
which are contained in a document
"OFFER TO PURCHASE".
18.
I deal with this issue in passing. The finding earlier in this
judgment makes it unnecessary to deal with it. It suffices for
now to
mention that the provisions of the Conventional Penalties Act 15 of
1962 was not raised in the pleadings. This should also
be seen in the
context of the fact, that the plaintiff approached the court on the
basis that no agreement of sale was ever concluded
between the
parties.
19.
Secondly, I think it would be inappropriate to get into the
justification or otherwise of the plaintiff's withdrawal from the
agreement of sale, which is not specifically pleaded. The present
case is disposable without getting into the merits thereof.
20.
Consequently the plaintiffs action is hereby dismissed with costs.
M
F LEGODI
JUDGE
OF THE HIGH COURT
Heard
on: Tuesday, 3 FEBRUARY 2012
Date
of judgment: 9 FEBRUARY 2012