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[2009] ZAGPJHC 109
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Marvanic Developments (Pty) Ltd v Minister of Safety and Security (06/21636) [2009] ZAGPJHC 109 (10 October 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. 06/21636
Date:19/10/2009
In the matter between:
MARVANIC DEVELOPMENTS (PTY)
LIMITED
..........................................
Plaintiff
and
MINISTER
OF SAFETY AND
SECURITY
..............................................
Defendant
MEYER, J
[1] The plaintiff has been trying for
years to obtain the return or payment of the value of forty four of
its tyres and forty of
its rims which were seized by members of the
South African Police Service (‘SAPS’) from its mechanical
horses and trailers
that are utilised in its businesses. The return
thereof is no longer possible. The defendant delivered them to
another party
despite the plaintiff’s claim to ownership. The
present issue for determination is their value in order to quantify
the
plaintiff’s damages.
[2] The tyres and rims under
consideration were seized on 8 July 2004. Two employees of the
plaintiff were criminally charged with
the offence of possession of
stolen property, but the charges were withdrawn. The plaintiff
unsuccessfully demanded the return
of its tyres and rims. It
instituted action in this division, and obtained default judgment for
their return on 17 April 2007.
The order was simply disregarded.
This court, on 8 August 2007, declared the defendant to be in
contempt of court and the defendant
was compelled to perform under
the order. On 16 November 2007, motion proceedings were instituted
by the defendant in this division
wherein
the rescission of both
judgments and orders were
inter
alia
sought. The plaintiff
opposed the relief. On 27 February 2008, the late Selvan, A.J.,
inter alia
rescinded
the order of 8
August
2007 in the contempt proceedings, and the following paragraphs of the
order are relevant to the present proceedings:
‘
3. The judgment granted on the
17
th
April 2007 under case number: 2006/21636 is not rescinded, but the
Plaintiff may claim as a substitute for delivery of the tyres
and
rims, the value thereof at the date of confiscation.
4. In terms of Uniform Rules of Court
6(5)(g) the question of the value of the 44 tyres and 40 rims which
were seized by the SAPS
on the 8
th
July 2004, is referred for the hearing of oral evidence to determine
the damages proved. The Defendant (Minister of Safety &
Security) is entitled to present evidence in opposing this claim for
damages.’
[3] The defendant opposed the
plaintiff’s claim for damages, but did not call any witnesses
and hardly cross-examined the
plaintiff’s witnesses, who were
its general manager, Mr. Fernandes, and an expert witness, Mr. Kok,
who has been involved
in the retail tyre industry for the past 24
years and the manager of a large tyre undertaking for the past 6
years.
[4] The high-water mark of the
submissions made on behalf of the defendant in resisting the
plaintiff’s claim was that the
plaintiff has failed to prove
its damages. Adv. Joubert, who appeared for the defendant, submitted
that the material at hand for
an assessment of the damages is scant.
This, however, does not mean that the plaintiff should be non-suited.
Cf.
Esso Standard SA (Pty)
Ltd v Katz
1981 (1) SA 964
(A), at pp 969H – 970H. There can be no doubt that the
plaintiff did suffer a loss. I appreciate the difficulty of the
plaintiff in leading evidence on the value of the tyres and the rims
five years after they were confiscated. Mr. Fernandes testified
that
the plaintiff’s vehicles were inspected at weekends when they
were not in use. Such inspections included an estimation
that was
made of the condition of the tyres on each vehicle. It could, in my
view, hardly have been expected of the plaintiff
before the rims and
tyres were confiscated to have collected evidence to prove their
value in a court at some future date. This,
accordingly, is a matter
which justifies a resort to ‘the rough and ready method of the
proverbial educated guess’
and for this court to do the best it
can on the material that was placed before it. See:
Hushon
SA (Pty) Ltd v Pictech (Pty) Ltd and Others
1997
(4) SA 399
(SCA), at p 412G – H.
[5] Although it is not possible to
ascertain the plaintiff’s damages with mathematical precision,
there is, in my view, sufficient
material before me to ascertain the
values and accordingly the plaintiff’s damages in a manner that
is fair to both parties.
[6] It is common cause that two new
Kumho tyres, two new Firestone tyres, sixteen used Firestone tyres,
fifteen used Kumho tyres,
seven used Michelin tyres, two used
Goodyear tyres, and forty used rims were seized. They were heavy
duty tyres and rims that
are suitable for use on mechanical horses
and trailers. The plaintiff’s manager testified that forty of
the used tyres had
relatively low wear at the time when they were
seized. The tread on ten was worn between 10 – 20 percent ,
and on thirty
between 30 – 40 percent. Mr. Kok estimated the
values of similar new tyres as at 8 July 2004 to have been R2 180.00
for
a Kumho tyre, R2 000.00 for a Firestone tyre, R2 200.00 for a
Michelin tyre, and R2, 000.00 for a Goodyear tyre. The defendant
did
not dispute these values.
[7] Mr. Kok said that it was almost
impossible to arrive at a
market
value
for the tyres that
could still be used for between 80 – 90 percent and between 60
– 70 percent of their lifespan.
He said that used tyres are
purchased and sold for the purpose of using them in the manufacturing
process of what is commonly
known as re-treaded tyres. The used
tyres are the ‘casings’ that are re-treaded. Only a few
millimeters of tread
is required on a used tyre to be suitable for
this purpose. The market value of a used tyre accordingly has no
relation to the
percentage wear of its tread. Mr. Kok estimated the
values of similar used tyres that were suitable for use as casings in
the
order of between R650.00 – R700.00 during the year 2004,
and the cost of re-treading between R650.00 – R700.00 per tyre.
Such values are, in my view, accordingly not suitable for comparison
in the assessment of the values of the plaintiff’s
used tyres.
[8] I can do no better than cite from
the judgment of Innes, J.A. in
Pietermaritzburg
Corporation v. South African Breweries, Ltd.
1911
AD 501
, at p 516, wherein he said this:
‘
It may not be always possible
to fix the market value by reference to concrete examples. There may
be cases where, owing to the
nature of the property, or to the
absence of transactions suitable for comparison, the valuator’s
difficulties are much increased.
His duty then would be to take into
consideration every circumstance likely to influence the mind of a
purchaser, the present
cost of erecting the property, the uses to
which it is capable of being put, its business facilities as
affording an opportunity
for profit, its situation and surroundings,
and so on. There being no concrete illustration ready to hand of the
operation of
all these considerations upon the mind of an actual
buyer, he would have to employ his skill and experience in deciding
what a
purchaser, if one were to appear, would be likely to give.
And in that way he would to the best of his ability be fixing the
exchange
value of the property.’
[9] The measure of a plaintiff’s
damages in a case such as the present one is the value of the
property to a plaintiff
.
The
value to a plaintiff
may differ from or coincide with the
market
value
depending on the
circumstances of the particular case. See:
Mlombo
v Fourie
1964 (3) SA 350
(T), at p 358;
Philip
Robinson Motors (Pty) Ltd v N.M. Dada (Pty) Ltd
1975
(2) SA 420
(AD), at p 428G. I proceed to an assessment of the
market value of the tyres and rims in accordance with the principles
enunciated
in the above passage of Innes, J.A.
[10] Mr. Fernandes was unable to
furnish the make of the ten tyres that had tread wear of between 10 –
20 percent. Their make
accordingly could have been Kumho, Firestone,
Michelin or Goodyear. The lowest estimated new value of these tyres
is R2 000.00,
and it will, in my view, accordingly be fair to take
that lowest value as the deemed value of similar make new tyres. The
average
tread wear of the ten tyres was 15 percent. This means that
on average 85 percent of the use to which similar new tyres are
capable of being put remained available. A fair basis for
determining the value seems to me to be to deduct an amount
equivalent
to the average percentage wear from the market value of a
similar new tyre. The difference between a particular make new and
the
same make used tyre, in the absence of any damage to it, seems to
be the tread wear. A new tyre has no tread wear and therefore
100
percent remaining tread. The value of 85 percent remaining tread
should therefore logically be calculated with reference
to the value
of 100 percent remaining tread. This calculation yields a sum of
R17 000.00 for the ten tyres. A 10 percent contingency
deduction
from this amount will, in my view, abate the possibility of an
overvaluing. The sum is then R15 380.00. A similar calculation
for
the thirty tyres that had a tread wear of between 30 – 40
percent yields a sum of R35 100.00.
[11] The assessment of the market
values of the remaining two new Kumho and two new Firestone tyres as
well as the used rims creates
no problem. Mr. Kok’s valuation
of the market values as at 8 July 2004 of a similar new Kumho tyre in
the sum of R2 180.00,
of a similar new Firestone tyre in the sum of
R2 000.00, and of a similar used rim in the sum of R350.00, were not
challenged nor
contradicted. On this basis the value of the four new
tyres and forty used rims is R22, 360.00. No contingency deduction
is required.
[12] In the circumstances of this
matter and the method followed in determining the values I do not
think that the exchange or market
values differ from the values to
the plaintiff. On the above basis the value of the forty four tyres
and forty rims is R72 760.00,
which the plaintiff is entitled to
payment.
[13] This brings me to the
determination of the scale on which costs should be awarded. The
plaintiff’s claim for damages
falls comfortably within the
jurisdiction of the Magistrates’ Court. The
prima
facie
view which I have
conveyed to counsel was accordingly that the plaintiff ought to have
proceeded in the Magistrates’ Court
and that the scale for
costs applicable in that forum should apply. The submissions made by
Adv. Shepstone, who appeared for the
plaintiff, did not persuade me
otherwise, but the preparation of this judgment did. There are
unusual problems in this matter.
See:
Keyter
v De Wet
1967 (1) SA 25
(O), at p 27;
Bhika v
Minister of Justice
1965
(4) SA 399
(W), at p 402. Counsel did not address me on this issue.
It is accordingly open to the defendant or his counsel to apply
within
a reasonable time to be heard on the issue of the scale of the
costs award. See:
Estate
Garlick v C.I.R.,
1934 A.D.
499
and especially at pp. 503 and 505;
Hart
v Broadacres Investments Ltd
1978 (2) SA 47
(NPD), at pp 49H – 50B.
[14] There will therefore be judgment
for the plaintiff against the defendant for payment of:
a. the sum of R72 760.00;
b. interest on the said sum at the
rate of 15.5 percent per annum from 26 November 2004, being the date
when demand was made, until
the date of payment; and
c. the costs of suit incurred after
the court order of 27 February 2008.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
19
October 2009
For
the plaintiff
: Adv.
Shepstone
Brian
Horwitz Attorney
C/o
AD Hertzberg Attorneys
3
rd
Floor East, 158 Jan Smuts
9
Walters Avenue
Rosebank
For
the defendant
: Adv.
Joubert
The
State Attorney
10
th
Floor, North State Building
95
Market Street
Johannesburg