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[2009] ZAGPPHC 347
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Daimlerchrysler Services South Africa (Pty) Ltd v Mabogaone (25939/2005) [2009] ZAGPPHC 347 (11 December 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:
11 DCEMBER 2009
CASE
NO: 25939/2005
In
the matter between:
DAIMLERCHRYSLER
SERVICES
SOUTH
AFRICA (PTY)
LTD Plaintiff
And
RAPHAKANE
DAVID
MABOGOANE Defendant
JUDGMENT
LEDWABA,
J
[1]
The plaintiff is claiming from the defendant damages amounting to R
245 018. 49 arising out of a written Finance Lease Agreement
no.
136090 (the contract) consisting of two pages.
[2]
The contract, inter alia, states that the plaintiff should be
entitled to recover from the defendant all costs, expenses and
disbursements incurred resulting from any breach of the contract by
the defendant, including all the legal costs on an attorney
and
client scale (see clause 7.3 on page 4 of exhibit A.
[3]
In the pre-trial minutes the defendant admitted that
3.1
Plaintiff was at all material times the owner of a Mercedes-Benz
[…...] motor vehicle with registration number […......]
engine number 6489 6030000775 and chasis number WDB2200252A319102
(the vehicle),
3.2
he signed the contract.
3.3
the terms of the contract are as set out in the contract.
3.4
The amount of damages suffered by the plaintiff is R245 018, 49.
[4]
Despite the admissions by the defendant in paragraph 4 of his plea
defendant denied that the parties concluded the contract
and
specifically denies that there was any consensus to enter into the
contract with the plaintiff for the financing of the vehicle.
During
the trial the defendant did not amend the plea nor make an
application to amend same.
[5]
The plaintiff called two witnesses viz Mr. H. G. Venter and Ms.
Belinda Ferreira and closed its case The defendant testified
and
closed his case too. Exhibit A. D and C were handed to the court by
agreement.
[6]
In the light of the admission made by the defendant I will, in
scrutinising the evidence, only refer to certain aspects of the
evidence which I consider important for the purpose of this judgment
[7]
Mr. Venter testified that because of the lapse of time he could not
specifically remember the specific occasion when the defendant
signed
the contract. However, he recognised and identified his signatures
and/or initials in the contract and in some of the documents
in
exhibit a He said, acting in his representative capacity, he signed
and initialled the contract as a witness of the plaintiff
to the
defendant’s signature and initials. He also confirmed that the
plaintiffs, lessor’s, representative's electronical
signature
together with the electronic witness's signature on the contract
being valid and an acceptable signature and initial
of the plaintiffs
representative.
[8]
Mr. Venter further confirmed that the signature or initials of the
witness appended on pages 5. 6. 7. 8. 9. 10 and 11 were his
He
explained in detail the procedure and process when a customer applied
for finance to purchase a vehicle. He also said when he
dealt with
his customer he habitually made it a practice to make the lessees or
buyers to sign the contract next to the narration
describing the
vehicle, the extra charges, finance details, and the period and the
instalments of the vehicle as it appeared on
page 3 of exhibit A.
[9]
He categorically stated that when he signed as a witness the person
on whose behalf he/she signed as a witness had to be present,
he
would also make the copy of identity of the person for identification
purposes and would explain to the contents of the documents
signed to
the customer.
[10]
Under cross-examination he denied defendant’s version put to
him that the defendant signed the document in the presence
of the
salesperson Mr. Xayne Toweel whose name appears at the bottom of page
38 of exhibit A
[11]
He further challenged and disputed the defendant's version that when
he, the defendant, signed the agreement he thought he
was signing on
somebody s behalf by stating that if he (the defendant), thought he
signed on somebody's behalf why would the contract
reflect in his
name.
[12]
The defendant testified that he is a businessman who once had a lease
with a Shell Petroleum Company (Shell) and he operated
one of its
filling stations. He said he had a problem with Shell and he
instructed an attorney, Mr Anton Killian, who had offices
to the
garage to assist him and he paid a fee of R 2000 to Mr. Killian.
[13]
During a consultation Mr. Killian informed him that he knew a coal
mining company, viz, Tswelopele Holdings that was looking
for a
credit worthy black partner. If he, the defendant, could join the
said company. Tswelopele Holdings and pay a joining fee
R 53 200 he
would benefit millions of rands and his financial problems would be
solved. The defendant further said he paid the
R 53 200 into Mr.
Killian's trust account and Killian introduced him to one. Mr
Boshoff. He gave Boshoff a copy of his identity
document, his bank
statements for six months and proof of residence Thereafter he
struggled to have a meeting with Mr. Boshoff
until he met him at
Bapsfontein at a mine in Witbank which he was told was operated by
Tswelopele Holdings
[14]
Thereafter Killian later arranged for another meeting at Midrand for
him to sign for vehicles where he met Mr Boshoff and they
went to
Grand Central Motors on a Saturday the 6
!r
March 2004 where they met Mr. Toweel, the salesperson.
[15]
The defendant testified that Mr. Boshoff told him that he should sign
some document on behalf of Tswelepele Holdings which
was buying
vehicles for its director. He said he just signed without reading the
said documents at the sections where Mr. Toweel
indicated. When he
signed he was informed that the transaction was for buying vehicles.
Thereafter Mr Boshoff should show him two
Mercedes-Benz vehicles that
he signed for.
[16]
The defendant emphasised that he did not take delivery of the vehicle
and he. never drove it. He further said the plaintiffs
tracer, one Mr
Naude approached him in about end of February/beginning of March 2005
and wanted to repossess the vehicle. He told
him to enquire about the
vehicle from Mr. Killian. I interpose to mention that the defendant
did not give reasons why did he refer
Mr. Naude to Mr. Killian and
not to Tswelepele Holdings office in Menlyn He further said the next
day Mr. Naude visited him again
and showed him the repossessed the
vehicle He was now seeing the vehicle for the second time, the first
time being when he saw
it at Grand Central Motors when he signed the
documents Mr. Naude advised him to report the matter to the SAPS if
he was unduly
influenced or defrauded when he signed the papers of
the vehicle.
[17]
Of importance, the defendant further acknowledged that he did receive
letters from the plaintiff regarding the arrears however,
he took all
the letters to Mr. Killian Since the letters were addressed to him, I
assume that he read the contents thereof and
he should have noticed
that the plaintiff has written to with him in his personal capacity
[18]
Regarding the signatures, the defendant admitted that he signed the
first page of the agreement at six different parts on its
first page,
see exhibit A page 3. However, he denied that he initialled the
second page of the agreement. The defendant further
stated that he
always signed in full and never uses initials He therefore, denied
the initials that Mr Venter said they were made
by him on pages 4. 8
and 11 of exhibit A.
[19]
I interpose again and comment about the defendant's version that he
uses his full signature and not initials. In exhibit B
pages 61 62
and 63 are pages of an Instalment Sale Agreement that the defendant
acknowledged he signed on 23
rd
December 2002 when he purchased a Mercedes E270 CDI Elegance which
was financed by the plaintiff.
[20]
It is clear from the said documents that there are certain parts
which have been initialled, the said initials, especially
when
compared with initials on page 8 of exhibit A, have some resemblance
Furthermore, in exhibit C the defendant's affidavit to
support an
application for the rescission of judgment, the defendant initialled
the pages of the affidavit that he was prepared
by his attorneys The
defendant's allegation that he does not initial is in my view, a
smokescreen trying to hide the truth.
[21]
The defendant in his evidence further said that he is north-sotho
speaking, he can read and write afrikaans and cannot read
english
well and has a problem in writing english However, in court when the
defendant was requested to read certain paragraphs
in the exhibits
which were written in English he read them fluently.
[22]
Importantly, the defendant in his evidence in chief said when he put
his signatures on page 11 of exhibit A the hand written
post box
address was on the document, however, when Mr Venter was
cross-examined it was put to him by the defendant's counsel that
the
hand written address did not exist
[23]
On careful analysis of the defendant’s evidence, it is not
disputed that the defendant knew that he was signing a Finance
Lease
Agreement relating to a vehicle. However, he alleged that he thought
the lessee or purchaser was Tswelopele Holdings.
[24]
Despite the fact that he thought the lessee was Tswelopele Holdings
the defendant after about eight months received letters
from the
plaintiff addressed to him personally regarding the arrears on the
vehicle In my view he should have realised that he
was personally
involved in the contract with the plaintiff. The defendant's conduct
after he signed the contract does not tally
with that of a person who
did not know that he signed the contract to bind himself personally.
[25]
The defendant further said he reported the matter to the police some
few weeks after the vehicle was repossessed Having regard
to the
contents of a letter from the plaintiff to the defendant dated 7
th
March 2005. the vehicle was repossessed in about February-March 2005.
He also said that he made a follow up to the police where
the docket
was open in the same year meaning 2005. However, the docket number is
Benoni cas 197/3/2006 which implies that the docket
was opened in
March 2006.
[26]
If the defendant was put in such a mess by Mr. Boshoffs conduct and
also after paying a deposit of R 53 200, I fail to understand
why
would he delay in laying a criminal charge Crucially, he should have
told the attorney he instructed after receiving summons
to seek an
explanation about Tswelopele Holdings and the joining fees that he
paid from Mr. Killian. The defendant did not give
evidence explaining
what he in the meantime did to claim the joining fees.
[27]
The plaintiff’s witnesses were in my view, reliable, credible
and honest witnesses. On the contrary same cannot be said
about the
defendant. As indicated above he did not give a full and satisfactory
account about his dealings with Mr. Killian and
Mr. Boshoff He also
failed to call Mr. Killian as a witness.
[28]
The defence raised by the defendant in his evidence in court is that
he made a iustus error. For such a defence to succeed
the court is to
apply an objective test.
[29]
Furthermore, the error would have to be reasonable (iustus) and
should be pleaded, see National & Overseas Distributors
Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A)
In my view, the alleged error or mistake by the defendant
is not
reasonable having regard to the evidence in totality and his defence
was not pleaded
[30]
In terms of the contract the defendant agreed to pay costs on an
attorney and client scale. I am also of the view that a special
order
of costs would be appropriate since there was no merit in the
defendant's defence
[31]
I therefore, make the following order:
(i)
The defendant is liable to pay the plaintiff the amount of R 245 018,
49 plus
interest from the 22 June 2005 to date of payment.
(ii)
The defendant is ordered to pay the costs on an attorney and client
scale.
q
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT