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[2008] ZAWCHC 258
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Barlowold Motors (Pty) Ltd v Sainsbury Exotic Cars CC (2979/2008) [2008] ZAWCHC 258 (1 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
2979/2008
DATE:
1
SEPTEMBER 2008
In
the matter between:
BARLOWOLD
MOTOR
(PTY)
LTD
PLAINTIFF
and
SAINSBURY
EXOTIC CARS CC
DEFENDANT
JUDGMENT
TRAVERSO.DJP
This
is an application for summary judgment.
The
particulars of claim contain,
Inter
alia,
the
following Allegations:
"3.
On or about 20 June 2007 and at Audi Centre, N1, plaintiff,
represented by a duly authorised official and the defendant,
represented by Saliem Hanware, concluded a written agreement of sale
by the defendant and purchased by the plaintiff of a 2006
RS4 4.2
Quattro Audi motor vehicle with registration number
VTT133GP
(hereinafter
referred to as the motor vehicte), a copy of the written agreement
is annexed hereto...
4.
The
material and expressed, alternatively implied, terms of the
agreement included the following:-
4.1 The
purchase price payable by the plaintiff to the
defendant
for
the motor vehicle was the sum of R554 000,00 (including Value Added
Tax).
4.2 Delivery
of the vehicle would take place on 20 June 23007.
4.3 The
defendant warranted that it was entitled to pass transfer of
ownership of the motor vehicle to the plaintiff and provided
plaintiff with the warranty against eviction.
5. Plaintiff
complied with its obligations in terms of the written agreement,
paid the purchase price in full and took delivery
of the motor
vehicle.
6. On
or about 25 October 2007 the plaintiff sold the motor vehicle to a
third party, being the Louis Group (SA) Limited.
In terms of
the sale to the third party, a warranty against eviction was
similarly implied in such a sale agreement.
7.
On
or about 7 February 2008, the third party, the Louis Group, was
evicted by the South African Police Services who seized and
removed
the motor vehicle.
7.1. The
entitlement of the South African Police Services to seize the motor
vehicle was unassailable as the motor vehicle was
in fact a stolen
vehicle.
7.2. In
the circumstances, the plaintiff was obliged to effect repayment of
the purchase price to the third party, the Louis
Group.
7.3. The
defendant has accordingly breached the warranty against eviction
and in the premises plaintiff is entitled to cancel
the sale
agreement, which the plaintiff has done, alternatively hereby does.
8.
On
or about 8 February and at the offices of plaintiff at Audi Centre,
N1, the defendant, represented by Saliem Hanware, verbally
undertook to plaintiff, represented by Craig Kriel, that the
defendant would effect payment of the full refund for the motor
vehicle, such refund to be paid by close of business on Monday, 11
February 2008.
9.
Despite the aforesaid undertaking, and despite demand, the
defendant has failed and refused to effect repayment of the purchase
price and the sum of R554 000,00 remains due and owing and payable
in full."
In
support of the summary judgment application David Kriel, who is the
dealer principal of the plaintiff deposed to an affidavit
in which
he confirmed that the facts which make out the subject matter of the
allegations contained in the particulars of claim
are within his
personal knowledge and belief and are true and correct. He further
stated that he can swear positively that the
defendant is indebted
to the plaintiff as alleged and that he can verify the cause of
action set out in the summons.
The
defendant filed a lengthy affidavit in opposition to the summary
judgment application. It is very difficult to establish from
this
affidavit exactly what the defence is upon which the defendant is
relying.
Mr
Atkins, who appeared for the defendant, relied mainly on the
allegation made by the defendant that Mr Kriel does not have
personal knowledge of the facts upon which the cause of action was
based and that therefore the affidavit falls short of what
is
required of an affidavit in support of a summary judgment
application.
I
have difficulty with this submission. The sale between the parties
is not in dispute. H is not in dispute that the police seized
the
vehicle. On the defendant's own say-so all subsequent meetings took
place between him and Mr Kriel representing the plaintiff.
Where Mr
Kriel was not personally involved as the principal dealer, he would
have been able to objectively establish the facts.
H is trite that
where the plaintiff is a company and the deponent is authorised by
the company to swear to the affidavit, the
Court will not hold the
affidavit to be defective as long as the deponent is someone who
would ordinarily be presumed to have
personal knowledge of the
matter. I have little doubt that Mr Kriel, as the principal dealer
and the person with whom the defendant
negotiated upon becoming
aware that the vehicle had been stolen, is a person who will have
such personal knowledge. It is quite
clear from the opposing
affidavit that Mr Kriel was very involved in this matter and there
is no basis upon which it can be held
that the affidavit in support
of summary judgment is in any way defective.
As
I have stated before as regards the merits, it is difficult to make
out exactly what the defence is. It appears to be that
there is some
dispute as to whether the agreement is oral or written, but with due
respect that is just a red herring.
The
written portion of the agreement upon which the defendant states the
agreement was concluded, reflects terms which are identical
to an
annexure which is annexed to the particulars of claim. About this
aspect there can therefore not be any dispute.
Mr
Atkins conceded during argument that the parties were
ad
idem
that
the agreement in question was an agreement of purchase and a sale.
He conceded that there is no dispute between the parties
about the
description of the merx soid or the price agreed upon.
It
is further common cause that the vehicle was delivered to the
plaintiff and that all the parties performed their obligations
in
terms of this agreement.
The
high water mark of the defendant's case in this regard is that he
states that he did not expressly give a warranty against
eviction.
This does not assist him. In this regard see
Plit
v
Imperial
Bank Limited
,
2007(1) SA 315 at 319B to E:-
"The
imptied warranty against eviction was succinctly stated by
Botha,
J A
in
Alphen
Trust (Eiendoms^ Bpk v Van der Watt
.
1975(3) SA 734 (A) at 743H to 744A to be the following:-
"Dit
is duidelik dat vir 'n geldige koopkontrak volgens ons reg geen
vereiste is dat die verkoper van die koopsaak eienaar
daarvan rnoet
wees nie. Ofskoon dit die doel van die koopkontrak is dat die koper
eienaar van die verkoopte saak moet word, is
die verkoper egter nie
verplig om die koper eienaar daarvan te maak nie. Hy moet die koper
slegs in besit stel en horn teen unwinding
vrywaar. Dit beteken dat
die verkoper daarvoor instaan dat niemand met 'n beter reg daartoe
die koper wettiglik van die verkoopte
saak sal ontneem nie
p
en dat hy, die verkoper, die koper in sy besit van die saak sal
beskerm."
The
warranty is imposed ex
lege
and
has nothing to do with the consensus or absence thereof between the
parties to the contract (
Van
der Westhuizen v Arend
,
2002(6) SA 453 (SCA)..,, per
Marais.
J
A)
."
The
parties may agree that the warranty shall be excluded. What must be
decided in this case was whether on an interpretation
of these
contracts, they did so.
In
the affidavit filed in opposition to the summary judgment
application there is nothing to show that the warranty had been
excluded. The high water mark of the defendant's case in this regard
is that, and I quote:-
"Certainly
neither Heinway nor I gave any undertaking to the plaintiff
warrantying against the plaintiff's being evicted
from ownership or
possession of the Audi."
This
does not establish a defence in law and in the circumstances it is
without any merit.
The
only other question on the merits upon which Mr Atkins relied during
argument is the question of the counter-claim.
The
counter-claim is based on the following: when the
defendant found out that the vehicle was stolen, Mr Heinway
immediately contacted Mr Kriel and agreed that the defendant would
refund the plaintiff's purchase consideration as soon as he
received
it from Mr Kajee of Main Reef, who was the person from whom the
defendant purchased the vehicle.
Subsequent
thereto, Mr Kriel circulated an internal memorandum to people within
the plaintiff organisation to state that they
must be careful when
they were dealing with the defendant and indicated that he might be
part of a syndicate. The defendant now
contends that he was
thereafter blacklisted from acquiring or selling motor vehicles from
the plaintiff, and as a result thereof
he lost income.
It
can, of course, never found a cause of action that anybody in
business decides no longer to do business with somebody else
if
there is no contractual obligation to do so. But Mr Atkins put my
mind to rest and argued that this was in fact not a claim
for
damages as a result of breach of contract, but it was in fact a
delictual claim based on defamation. However, Mr Kriel, who
was the
person who circulated the e-mail, is not a party to these
proceedings. He is the one that made the alleged defamatory
allegations, if at all they are defamatory, which I do not believe
they are.
As
regards the plaintiff, the statements were made within the confines
of the plaintiff company. It was never suggested, nor could
it be,
that it was published to a third party outside of the confines of
the plaintiff company. That being so, there can never
be any
suggestion of defamation, and on this ground too there can in law be
no defence. I appreciate that summary judgment is
a stringent
remedy, but in my view the defendant in this matter has not set out
a
bona
fide
defence
to the plaintiff's claim which is sustainable in law on any of the
grounds and in the circumstances I make the following
order:-
(a) The
defendant is
ordered
to make payment in the sum of R554 000,00.
(b) It
is to pay interest on the aforesaid amount at the prescribed rate
a
tempore rnorae
and
costs.
TRAVERSO,
DJP