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[2012] ZAGPPHC 42
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Mccarthy Ltd t/a Mccarthy Toyota Sinoville v Malekane (A563/2008) [2012] ZAGPPHC 42 (22 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA PRETORIA)
NORTH
GAUTENG HIGH COURT
Date:
2012-02-22
Case
Number: A563/2008
In
the matter between:
MCCARTHY
LIMITED t/a MCCARTHY TOYOTA
SINOVILLE
......................................
Appellant
and
SOPHIE
MALEKANE
..............................................................................................
Respondent
JUDGMENT
SOUTHWOOD
J
[1]
The appellant appeals against the judgment and order of the
Wonderboom magistrates' court which ordered the appellant to pay
to
the respondent the sum of R31 780,17. On 13 April 2010 the full bench
referred this matter to the full court.
[2]
The respondent was the plaintiff in the court a quo. She claimed from
the appellant, the defendant in the court a quo, repayment
of the
balance of the deposit she had paid when purchasing a motor vehicle
from the appellant. She based her claim on her purported
cancellation
of the agreement. The court a quo found that the respondent was a
good witness and had proved her case: she wanted
to purchase a new
motor vehicle and not a damaged motor vehicle and the appellant was
not entitled to sell as a new vehicle a vehicle
which is damaged.
[3]
The respondent's case is a simple one. She bought a brand new vehicle
from the appellant and the appellant failed to deliver
a brand new
vehicle to her. In her attorney's letter of demand dated 1 April 2005
it was alleged that she had purchased a brand
new vehicle but after
delivery she had found that the vehicle 'was a second hand motor
vehicle with a dent'. On the strength of
these allegations the
respondent apparently purported to cancel the contract of sale. Later
during the trial the respondent changed
her stance and sought to rely
on other faults or defects in the vehicle.
[4]
In Singh v McCarthy Retail Ltd t/a Mcintosh Motors
[2000] ZASCA 129
;
2000 (4) SA 795
(SCA) at para 12 the court said:
'The
right of a party to a contract to cancel it on account of
malperformance by the other party, in the absence of a lex
commissoria,
depends on whether or not the breach, objectively
evaluated, is so serious as to justify cancellation by the innocent
party.'
In
para 15 the court formulated the correct approach as follows:
The
test, whether the innocent party is entitled to cancel the contract
because of malperformance by the other, in the absence of
a lex
commissoria, entails a value judgment by the Court. It is,
essentially, a balancing of competing interests - that of the
innocent party claiming rescission and that of the party who
committed the breach. The ultimate criterion must be one of treating
both parties, under the circumstances, fairly, bearing in mind that
rescission, rather than specific performance or damages, is
the more
radical remedy. Is the breach so serious that it is fair to allow the
innocent party to cancel the contract and undo all
its consequences?'
[5]
It is clear that the appellant did not deliver a second hand vehicle
to the respondent. The question is whether the other defects
relied
upon by the respondent, if proved, could justify the cancellation of
the agreement. In dealing with the evidence I do not
accept the
finding of the court a quo that the respondent was a good witness.
She contradicted the terms of the agreement which
she had signed and
she could not explain why all her complaints, which she had written
down, were not recorded in her attorney's
letter of demand. She
persisted in describing the vehicle as second hand when it clearly
was not and she was inconsistent about
her complaints. It is not
clear from her evidence whether she saw a dent or a scratch on the
bumper and it is not possible to determine
the exact nature of her
complaint about the interior of the boot. She clearly lacked
objectivity and there is no reason to prefer
her evidence to that of
the appellant.
[6]
The facts which are not contentious may be summarised as follows: On
17 March 2005 the respondent went to the appellant's Sinoville
premises to buy a new vehicle. She negotiated the purchase of a new
Toyota Tazz for a purchase price of R90 653,00. This price
included
the cost of supplying a radio and an air conditioner, both of which
were extras. In terms of the agreement the respondent
was required to
pay a deposit of R50 000 - which she did on 17 March 2005 - and 53
instalments of R1 068,82 payable from 1 May
2005. The respondent
wanted the radio and air conditioner to be fitted immediately and it
was arranged that the appellant would
deliver the vehicle to her on
18 March 2005.
[7]
At about 18h00 on 18 March 2005, after all the relevant documents had
been signed, the appellant, represented by Ms. Linda Steyn,
delivered
the vehicle to the respondent. Only the radio had been installed.
There had been too little time to have the air conditioner
fitted.
Ms. Steyn arranged for the respondent to bring the vehicle back on
Tuesday 22 March 2005 for the air conditioner. After
taking delivery
the respondent drove away from the premises. Unbeknown to both the
respondent and Ms. Steyn there was a small scratch
on the rear bumper
where an amount of paint about the size of a woman's little finger
had been removed and the undercoat was visible.
[8]
On Saturday 19 March 2005 the appellant's sales manager, Gert Fourie,
informed Ms. Steyn about the scratch on the bumper and
she telephoned
the respondent to tell her and arrange that the scratch be repaired
when the air conditioner was installed.
[9]
On Tuesday 22 March 2005 the respondent took the vehicle to the
appellant's Sinoville premises. According to Ms. Steyn this
was for
the air conditioner to be installed and the scratch to be repaired.
The respondent told Ms. Steyn that the vehicle gets
hot and Ms. Steyn
arranged for this to be investigated by the workshop. There was no
suggestion that the temperature gauge showed
that the engine was
overheating. There is no evidence that the workshop found that it was
overheating. On 22 March 2005 the air
conditioner was installed and
the scratch on the bumper repaired.
[10]
There is a dispute about what happened on 22 March 2005. According to
the respondent, she took the vehicle to the appellant's
premises
because she did not want it any more. She wanted to cancel the deal
and get her money back. She says the appellant's representatives
told
her they could not cancel the sale.
[11]
The uncertainty about the respondent's case is highlighted by the
pleadings. In her initial particulars of claim the respondent
alleged
that the appellant repudiated the agreement on that day and she
accepted the repudiation thereby cancelling the agreement.
After the
appellant unsuccessfully applied for absolution from the instance on
the ground that there was no evidence to support
this cause of
action, the respondent amended her particulars of claim. She now
claimed to be entitled to claim cancellation of
the agreement because
the vehicle was not brand new. She alleged that after delivery she
had discovered the following:
(1)
the vehicle had accident damage to the bumper;
(2)
the interior of the luggage compartment was worn;
(3)
there was no cigarette lighter;
(4)
the odometer showed that the vehicle had travelled 85 km.
[12]
In the light of all the evidence it is clear that there is no merit
in any of these complaints. There was no accident damage
to the
bumper -only the small scratch referred to which was easily repaired.
The evidence regarding the worn interior of the luggage
compartment
is so vague and contradictory that it is meaningless. A cigarette
lighter could be supplied immediately and if the
vehicle had
travelled 85 km this would not indicate that the vehicle was not
brand new. Some travelling was necessary to deliver
the vehicle and
have the radio fitted. There is a suggestion that this was more than
usual but it was not shown to be excessive
in the trade. It is
significant that these complaints differ from those set out in the
respondent's attorney's letter of 1 April
2005 when he purported to
cancel the agreement because the vehicle 'was a second hand motor
vehicle with a dent'.
[13]
In my view the evidence of Ms. Steyn about what happened on 22 March
2005 and thereafter is more probable. She received the
car keys and
documents, which is normal procedure, and she referred the
respondent's complaint to the workshop manager. The respondent
did
not mention all the complaints she testified about and when Ms. Steyn
telephoned the respondent to tell her to collect the
vehicle the
respondent said she no longer wanted the vehicle because it is a
second hand vehicle. This is obviously consistent
with what the
respondent's attorney stated in his letter of 1 April 2005.
[14]
There is therefore no basis for finding that the appellant's breach
of the agreement, if any, is so serious that it is fair
to allow the
respondent to cancel the agreement. The court a quo should not have
found that the respondent was entitled to cancel
the agreement and
claim repayment of her deposit.
[15]
The appeal must therefore be upheld and the following order is made:
I
The order made in the court a quo is set aside and replaced by the
following order:
'The
plaintiff's claim is dismissed with costs';
II
The respondent is ordered to pay the costs of the appeal.
B.R.
Southwood
Judge
of the High Court
I
agree
M.W.
Msimeki
Judge
of the High Court
I
agree
H.J.
Fabricius
Judge
of the High Court
CASE
NO: A563/2008
HEARD
ON: 22 February 2012
FOR
THE APPELLANT: ADV. E.P. VAN RENSBURG
INSTRUCTED
BY: Van Zyt Le Roux Inc.
FOR
THE RESPONDENT: In person
DATE
OF JUDGMENT: 22 February 2012