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[2011] ZAKZPHC 57
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Datcenter Motors (Pty) Ltd t/a CMH Commercial v Reddy Cargo Services (Pty) Ltd (AR 223/11) [2011] ZAKZPHC 57 (30 September 2011)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO: AR
223/11
In the matter
between:
DATCENTRE MOTORS
(PTY) LTD
t/a CMH
COMMERCIAL
….....................................................................
Appellant
and
REDDY CARGO
SERVICES (PTY) LTD
…......................................
Respondent
JUDGMENT
Date:
30 September 2011
PLOOS van AMSTEL J
[1] This appeal
arises out of an action in the Pinetown Magistrates’ Court in
which judgment was granted in favour of the
respondent for payment of
the sum of R39 045 together with interest and costs. I shall refer to
the respondent as the plaintiff
and to the appellant as the
defendant.
[2] The plaintiff is
a road haulier and the defendant a dealer in trucks. It was common
cause before the magistrate that during
March 2007 the plaintiff
purchased five large Nissan truck tractors from the defendant at a
price of approximately R800 000 each.
The agreement provided for
several accessories, including a bull bar which had to be fitted to
the front of each of the trucks.
When the trucks were delivered to
the plaintiff four of them had been fitted with bull bars. According
to the plaintiff’s
manager, Mr Reddy, there had been a delay
with the delivery of the trucks, which had become urgent, and the
arrangement was that
the fifth truck would be fitted with a bull bar
in due course.
[3] It was not
disputed that shortly after the delivery of the trucks the plaintiff
experienced problems with the bull bars. They
became loose because of
a problem relating to the fixing of the brackets to the chassis of
the trucks. The bull bars were replaced
but shortly thereafter the
same problem was experienced.
[4] The evidence
dealt with various communications between the parties thereafter
relating to the problem with the bull bars, and
between the defendant
and the manufacturer of the bull bars. The problem was not resolved
and the plaintiff eventually instituted
the action in December 2008.
The magistrate found for the plaintiff and granted judgment in an
amount which represented the purchase
price of the bull bars. The
quantum of the claim was not in dispute before us.
[5] Two points were
raised in the defendant’s notice of appeal. The first was that
the magistrate erred in failing to find
that the plaintiff had
accepted the defendant’s offer to repair the bull bars and that
the plaintiff failed to make its trucks
available for the repair work
to be carried out. The second point was that the magistrate erred in
rejecting the evidence of the
defendant’s witness, Mr Constant
Oelofse. I deal with them together because they are interrelated.
[6] It was not in
dispute that by the time the action was instituted the bull bars had
not been repaired. The defendant’s
case was that after the
service of the summons it offered to repair the bull bars, which
offer the plaintiff accepted. This is
a reference to a letter written
by the defendant’s attorney on the 1 April 2009. Because this
letter forms the foundation
of the appeal I quote it in full:
‘
We have
taken instructions regarding your claim in this matter.
As your client knows, our client
subcontracted the fitment of the bull bars to your client’s
vehicles.
After your client complained of
problems our client subcontracted the work to a certain Mr Constant
Oelofse of Smart Trucks to inspect
your client’s vehicles and
to make good any defects or missing bull bars.
It was never possible for our
client’s subcontractor to carry out this mandate because your
client’s trucks were never
made available and were constantly
on the road.
Our instructions are to inform
you that our client repeats it’s tender to repair and/or
replace and/or fit the bull bars which
were not properly fitted the
first time.
The onus lies with your client to
make its vehicles available for this purpose.
The subcontractor appointed by
our client to attend to this work is Mr Constant Oelofse who may be
contacted on telephone number
() or cell phone number . His business
is “Smart Trucks” . Alternatively he also has a branch in
the Durban area.
The onus is on your client to
contact Mr Oelofse and to arrange for a suitable time for each truck
to be brought into his premises
for inspection and repair.
This has now been an ongoing
state of affairs for an unacceptable length of time.
It is therefore necessary to
place your client on terms. Your client will need to produce each of
the trucks referred to in its
particulars of claim for inspection and
if necessary repair by Smart Trucks during the course of April or May
2009. If your client
fails to do so then our client will not consider
itself to be liable in any manner whatsoever towards your client.
Please note that this letter is
addressed to you WITH PREJUDICE.
Having regard to the content of
this letter please advise whether you still require us to file a
plea.’
[7] The reply to
this letter is dated 15 April 2009. The plaintiff’s attorney
stated as follows:
‘
Without
prejudice to our client’s rights, we confirm that we are
advised that our client has made contact with your client
and that
arrangements are being made to replace and/or repair the necessary
bull bars on our client’s vehicles.
Once this process is complete we
will again communicate with you in respect of the finalisation of the
matter.
Nothing contained herein and none
of the actions taken by our client should be construed in any way as
an admission as the correctness
of any of the allegations which you
have levied against our client and all our client’s rights in
regard to all issues at
all times remain fully reserved.’
[8] By the end of
May 2009 the repairs had not been carried out. On 11 June 2009 the
defendant’s attorney informed the plaintiff’s
attorney
that the deadline had come and gone and that no further work would be
done.
[9] The defendant’s
attorney argued before us that the reason why the repairs were not
done was the plaintiff’s breach
of the agreement concluded in
the correspondence to which I have referred, in that it failed to
make its trucks available for that
purpose. I do not consider that a
new contract was concluded in the correspondence. The letter of 1
April 2009 seems to me to amount
to a tender by the defendant to
repair or replace and fit the bull bars. Certain conditions were
attached to the tender, but it
seems to me that they did not detract
from the tender. In his reply the plaintiff’s attorney, without
prejudice to the plaintiff’s
rights and under full reservation
thereof, confirmed that the plaintiff had made contact with the
defendant and that arrangements
were being made to replace or repair
the bull bars. This seems to me to have been no more than an
agreement by the plaintiff to
allow the defendant a further
opportunity to repair the bull bars, failing which the action would
proceed.
[10] The question
however remains as to why no repairs were carried out pursuant to the
tender of 1 April 2009. The defendant contended
before us that the
plaintiff was to blame for this because it never took its trucks to
Smart Trucks for inspection and repair of
the bull bars. The
plaintiff’s stance was that Smart Trucks (of which Oelofse was
the proprietor) was in possession of the
defective bull bars and that
until the bull bars had been repaired there was no point in taking
the trucks there.
[11] There was a
factual dispute before the magistrate as to where the bull bars were
when the tender was made on 1 April 2009.
Mr Reddy testified that
they were removed in September or October 2007 by Mr Oelofse, who
said he needed to take them to his workshop.
Mr Oelofse denied this.
He said he did not remove the bull bars, nor did he repair them, save
for a headlight cover on one of them.
[12] The magistrate
had regard to the probabilities and the evidence before him, and
accepted Mr Reddy’s evidence that Mr
Oelofse had taken the bull
bars away. This is an important aspect of the matter because if Mr
Oelofse was in possession of the
bull bars one would have expected
him to repair them and then notify the plaintiff that they were ready
to be fitted. If, on the
other hand, the plaintiff had the bull bars
and did not make them available it can hardly complain that they were
not repaired.
[13] The
correspondence seems to me to support the likelihood that Mr Oelofse
had taken the bull bars away.
[14] On 24 October
2007 Ms Bint said in an email to Mr Reddy:
‘
Constant
has offered to take the current bull bars on F72, F75, F76 and
re-inforce and replace the damaged brackets. Confirmation
of this
would need to come from yourselves’
.
On 21 November 2007
she said:
‘
I’m
awaiting a quote from Constant for the repairs & replacements,
that were discussed in your meeting with him last week.
This should
come through shortly. Once we have worked out the pricing, we will
send through an order from him to sort your bull
bars out’.
On 6 December 2007
she said :
‘
After
speaking to Constant this morning, he is just waiting for two more
parts to come back from chroming. Once he receives the
same he will
be ready to come and sort out final fitment to your trucks’.
On 7 January 2008
she said:
‘
Further
to our telephone conversation earlier today, I would just like to
confirm that I spoke to Constant with regards to your
bull bars. He
is still on leave and will only be back at work on Monday 14 January
2008. He said that he might be going in to work
on either Wednesday
or Thursday this week as delayed chroming from December is coming
through now, of which some is yours’.
[15] On 27 February
2008 Mr Le Roux, from the defendant, stated in an email to Mr Reddy
that according to Mr Oelofse ‘the
other four bull bars’
had been repaired. He also referred to brackets that were loose which
had been repaired. On 28 March
2008 he again said in an email to Mr
Reddy that inspections ‘were made and bracket repairs
complete…’.
[16] This evidence
is not consistent with the evidence of Mr Oelofse that he never had
the bull bars and did not repair the brackets.
I should also refer to
what was put to Mr Reddy by the defendant’s attorney at the
trial. At page 78 the following was put:’
Now our client’s
version is going to be that Constant repaired those four bull bars…’.
At page 138 the attorney
said the following to the magistrate:’
Round about February 2008 the bull bars were fixed and that was the
end of the story.’
And further down the page:’ ... by
February 2008 the bull bars had been refitted to the vehicles and all
his complaints had
been attended to and since then Mr Oelofse has not
had those bull bars.’
[17] It also seems
unlikely that a large organisation such as the plaintiff, which had
purchased five trucks from the defendant
at a price of approximately
R 800 000 each, would complain about defective bull bars, the purpose
of which is to protect the front
of their trucks, then fail to make
them available for repairs and a year or so later institute an action
for the recovery of a
sum of R 40 000.
[18] We can only
interfere as a court of appeal if we are satisfied that the
magistrate was wrong. He had the benefit of seeing
the witness
testify and he assessed their credibility in the light of the
probabilities in the case. I am not persuaded that he
erred in this
regard. On the contrary, it seems to me that he got it right.
[19] The case must
therefore be decided on the basis that when the tender to perform was
made on 1 April 2009 the plaintiff was
not in possession of the bull
bars. Smart Trucks had removed them on an earlier occasion for the
purpose of repairing them. Proper
performance by the defendant at
that stage would have been to have the bull bars repaired and notify
the plaintiff that they were
ready to be fitted. The reason why they
were not repaired was not any failure on the part of the plaintiff.
[20] It seems likely
in my view that the problem lay with Smart Trucks. Ms Bint said she
was waiting for a quotation from Oelofse,
who never provided one.
Oelofse told Reddy at an early stage that the defendant had not
accepted his quotation. That was not true.
He said in his evidence
that he never intended to produce a quotation. The reluctance on
Oelofse’s side to get on with the
repair of the bull bars may
be explained by a comment in his evidence that Smart Trucks was not a
repair centre, but a manufacturer
of exhaust systems and bull bars.
It appears from the emails sent by Le Roux that Oelofse had told the
defendant that he had done
the repairs. After the tender was made on
1 April 2009 Oelofse went to see Reddy and said there were two parts
of the bull bars
missing. Reddy said this was why he sent parts of
other bull bars to Oelofse, in case he could use some of them.
Oelofse sent them
back and, according to Reddy, then adopted the
stance that he had no obligation to repair the bull bars as Smart
Trucks had not
made them. Oelofse’s explanation to the
defendant, whom he presumably did not want to alienate, was that he
was not to blame
because the plaintiff failed to produce its trucks.
In the result, therefore, nothing came of the defendant’s
tender and
the plaintiff proceeded with the action, as it was
entitled to do.
[21] In my view the
appeal cannot succeed. I propose that it be dismissed with costs.
_____________________
I
agree: _____________________