Motloung v Honda Auto Bloemfontein and Another (1268/2007) [2007] ZAFSHC 44 (31 May 2007)

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[2007] ZAFSHC 44
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Motloung v Honda Auto Bloemfontein and Another (1268/2007) [2007] ZAFSHC 44 (31 May 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 1268/2007
In
the case between:
SEHAPI EDWIN
MOTLOUNG
Applicant
and
HONDA AUTO
BLOEMFONTEIN
1
st
Respondent
(FERDIE SMITH)
AUTO SHOP
2
nd
Respondent
JUDGMENT:
MILTON, AJ
_____________________________________________________
HEARD ON:
17 MAY 2007
_____________________________________________________
DELIVERED ON:
31 MAY 2007
_____________________________________________________
[1]
INTRODUCTION
1.1 On the 28
th
March 2007 the applicant approached the Court on an urgent basis to
obtain a rule
nisi
wherein the following order was made
against both respondents.
1.1.1 The applicant’s
vehicle with registration number DCT861FS, Fiat Strada, be returned
to applicant with immediate effect.
1.1.2 The
vehicle be returned with the alarm system in good working order.
[2]
APPLICANT’S
CASE
Applicant took his
vehicle to the first respondent on the 6
th
March 2007 to
have the clutch repaired. The applicant is the owner.
A week later on
applicant’s inquiry, the first respondent confirmed that the
clutch was repaired but the vehicle had a problem
in starting –
there seemed a problem with the alarm system.
Applicant went to
investigate and found the bonnet open and a mechanic working on the
vehicle, who told the applicant that he
tried to connect the alarm
but it failed to start.
Applicant then
activated the immobilizer after which the vehicle started. The
mechanic told him that they had been struggling
to start the
vehicle, although it had started previously. He was told him to
pay for the repairs to the clutch which the applicant
did
immediatly.
The manager informed
the applicant that he could take his car but there was a blipping
sound which indicated something was wrong
with the alarm system.
Applicant and the
manager inspected the vehicle and both saw wires hanging loosely.
Applicant refused to
take delivery of the vehicle.
There was nothing wrong
with the vehicle when it was taken to first respondent for the
clutch repair.
The manager asked where
the alarm had been fitted and the applicant informed him at second
respondent. The former then said he
would take the vehicle there.
Two days later the
second respondent informed applicant that the security box had been
tampered with.
The first respondent
denied that his employees had tampered with the alarm.
On the 16
th
March 2002 the first respondent informed applicant that he must pay
for the alarm repairs. Applicant refused since he had not
instructed first respondent to take the vehicle to second
respondent and he had not fiddled with the vehicle’s alarm
system.
The application was
brought on an urgent basis since the applicant needs his vehicle to
practise as an advocate, and he travels
extensively and the vehicle
was now in possession of the second respondent. The applicant does
not know what steps second respondent
will take to recover his
costs.
IN REPLY
Applicant
denies that he was never told earlier that the vehicle cut out on
the test drive – this was only ascertained later.
The alarm system was in
working order since it had recently been installed and was still
under guarantee.
Applicant attaches an
affidavit by Mr. Shuping who confirms that the alarm system was
under guarantee but since the alarm had
been tampered with it was
no longer covered thereby.
[3]
RESPONDENT’S
CASE
3.1 The applicant’s
vehicle was brought into his business and the clutch was repaired.
3.2 The
alarm system of the applicant’s vehicle was giving a problem.
3.3 It is denied that the
first respondent or any of there employees worked on the alarm system
or the wiring. The first respondent
denies further that any wires
were lying loose. After applicant was told that the car would not
start the applicant then activated
the immobilizer and it started.
First respondent is not sure why it would not start again after the
applicant activated the immobilizer.
3.4 First
respondent avers that the vehicle was able to be taken for a test
drive. The immobilizer at that stage did not prevent
the vehicle
being started. However after driving for 10 minutes the vehicle cut
out and the vehicle had to be towed back to the
shop. Thereafter
they could not succeed to start the vehicle again.
3.5 The vehicle was
inspected and only one loose wire was hanging – but the vehicle was
received with that loose wire.
3.6 Applicant
refused to take possession of his vehicle.
3.7 Their
only instructions were to repair the clutch.
3.8 The vehicle was taken
to second respondent with applicant’s knowledge only to identify
the problem and the first respondent
specific instructions were not
to repair the vehicle since applicant had not instructed him to do
so. If it needed repairing the
second respondent would have to
arrange that personally with applicant.
3.9 First
respondent was never liable to pay any costs to the second
respondent.
3.10 First respondent
admits that he told applicant that he (applicant) must pay the
repairs to the alarm system.
First respondent avers
that second respondent told him that applicant himself had given the
instructions to second respondent to
repair the vehicle. In reply
applicant attaches an affidavit of Mr. Shuping, an employee of second
respondent, however he does not
deal with this crucial aspect.
The vehicle was not in
the first respondent possession when applicant brought the
application.
Applicant demands that
the vehicle’s alarm system must be repaired by first respondent
but that was not their instructions.
[4]
FACTS NOT IN
DISPUTE
4.1 First respondent
received applicant’s vehicle to have the clutch repaired. An
applicant paid for the repairs.
4.2 First
respondent took possession of the vehicle.
4.3 The alarm system
become faulty while on the respondent’s premises.
4.4 First
respondent took the vehicle to second respondent to have the system
accessed at.
4.5 Second respondent
repaired the faulty alarm system.
4.6 Applicant and first
respondent both refuse to pay the repairs.
4.7 At
the time of the interim order was obtained, the vehicle was in the
possession of the second respondent.
4.8 The
interim order was also applicable to the second respondent, who chose
not to oppose the application.
[5]
FACTS IN
DISPUTE
5.1.1 Whether the alarm
system of the applicant’s vehicle was tampered with whilst in
possession of the first respondent.
5.1.2 Who must be held
responsible for payment of the repairs to the alarm system?
5.2 It
is clear from the papers that the respondent denies touching or
tampering with the alarm system and the applicant avers the
alarm
system was in perfect working order before it went in for the clutch
repairs.
5.3 The first respondent
avers that they clearly told the second respondent that they were not
to repair the system – only look
at the problem and they would not
be liable for any costs thereof. First respondent’s case is that
the applicant himself instructed
the second respondent to repair the
alarm. This was introduced by hearsay evidence and not confirmed by
Shuping, who did have an
opportunity in the papers to address this
issue, but failed to do so.
[6]
LEGAL
POSITION
6.1 To obtain a final
order the applicant must prove as set out in
SETHOGELO v
SETLOGETO
1914 AD 221.
6.1.1
A clear right
.
From the applicant’s evidence it is not clear what substantive law
he is relying on to establish his right – he makes no clear
case
out for contractual or delictual basis. Mr. Gilliland on behalf of
the first respondent argued that it was probably based on
depositum
.
I disagree, and am of opinion that applicant attempts to make out a
case of delict.
To succeed he must prove
on his founding affidavit that:
6.1.1.1 his vehicle’s
alarm system prior to the vehicle being handed to the first
respondent was in good working order.
6.1.1.2 the
alarm system was damaged by the first respondent and/or his
employees.
6.1.2
Injury
actually committed or a reasonably apprehended. Applicant has made
out a case that this vehicle was of utmost importance to practise
as
an advocate and lose of income was imminent.
6.1.3 Absence
of similar protection by any other ordinary remedy.
Mr. Gilliland on behalf
of the first respondent argued that applicant’s request namely the
return of a vehicle with the alarm system
in working order is
strange. His contention is that the applicant should rather have
brought a action for damages alternatively
an interim order to obtain
the vehicle pending the institution an action for damages.
I
do not find the applicant’s relief sought strange, if the applicant
can make out a clear case on a delictual basis, I do not
think he
would succeed on contract or
depositum
as he has laid no basis
therefore. Further I do not think the alternative relief suggested
by Mr. Gilliland would be enforceable
against the second respondent
who at the time of the application was in possession of the vehicle
and had a definitive defence –
one of retention.
6.2 A final order can
only be granted if no dispute on the facts material. A dispute
arises when a party denies material allegations.
6.3 It is then accepted
that final interdicts should only be granted in motion proceedings if
the facts stated by the respondent’s
together with the admitted
facts in the application affidavit justify such an order.
See
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
AD on 634, the following was said:
¡°
In
certain instances the denial by respondent of a fact alleged by the
applicant may not be such as to raise a real, genuine or
bona
fide
dispute of fact.”
and in
SOFFIANTINI
v MOULD
1965 (4) SA 150
(ED CD) on 154 G – H:
¡°
It
is necessary to make a robust common sense approach to a dispute on
motion as otherwise the effective functioning of the court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded an delayed by an over fastidious
approach to a
dispute raised in affidavits.”
6.4 I raised my concern
during court that there appears to be a dispute of facts. The dispute
goes to the root of the applicant’s
cause of action (though
somewhat vague). To succeed with a final order where there is a
dispute as to the facts, it should only
be granted if the facts are
stated by the respondent’s together with facts admitted by the
applicant’s affidavit.
See
STELLENBOSCH FARMERS WINERY (PTY) LTD v STELLENVALE WINERY
(PTY) LTD
1957 (4) SA 234
(C).
The
first respondent denies having tampered with the alarm system in any
way. This is in direct conflict to the case that applicant
attempts
to make out and it is clear that their versions differ radically.
There is also a large
vacuum in the events that followed after the applicant paid for the
clutch repairs and left the first respondent’s
premises. Neither
party address these aspects. Applicant lays no basis in his
application why second respondent is cited, or
what transpired that
second respondent eventually repaired the alarm system and what the
amount of the repairs was. First respondent’s
documents does not
deal with this either.
6.6 Second respondent
chose not to oppose the matter seemingly to avoid costs but has lost
his retention by intervention of the rule
nisi
order. I would
have thought that applicant might have attached a confirmation
affidavit specifically dealing with the instructions
that was
received by them and more particularly by whom. Applicant does, in
reply attach an affidavit by Mr. Shuping an employee
of the second
respondent, but sadly does not address the above or even expound
exactly what was found to be wrong with the security
box and what was
done to cause it.
This
would all have been helpful facts to assist the court to decide if
the first respondent denial is real and
bona fide
or just a
blatent denial to cause a factual dispute and prevent a final order
being obtained.
6.7 Where
a court cannot award a final order as a result of a real dispute of
facts, the court has a discretion to refer the matter
for oral
evidence.
I cannot find on the
respondent’s papers that the allegations or denials are so far
fetched that they are untenable and can therefore
reject the
respondent’s version. Both parties versions should probably be
tested under cross-examination.
However, the reality is
that the applicant is now
de facto
in possession of the
vehicle, the first respondent has been paid for the repairs
regarding the clutch, and the second respondent
has lost retention
by legal intervention. The latter chose not to enter into
appearance and is therefore not contesting the
outcome of the final
order. The second respondent is the only party that would seemly
suffer damages which he can recover by
means of issuing summons.
In the light of the above, I do not deem it practical to refer the
matter for oral evidence since
the material is not worth the coat.
6.9 The court has a
discretion to refuse a final order if there is factual and legal
justification therefor. See
CANDID ELECTRONICS v MECHANISE
BUYING SYNDICATE
1992 (2) SA 459
CPP.
There
is however a factual justification in this matter, since there is a
dispute, which dispute the applicant was aware of from
the moment the
requested his vehicle, the dispute being clearly, who caused the
damage to the alarm system and who would be liable
for payment
thereof. To refer the matter at this stage for oral evidence would
be a further waste of costs.
6.10 In
the light of the above the order is as follows:
6.10.1 The rule
nisi
is discharged with costs.
_____________
D. MILTON, AJ
On
behalf of the Applicant: Adv. B. S. Mene
Instructed by:
Du Toit Bomela
BLOEMFONTEIN
On
behalf of the 1
st
Respondent: Adv. J. G. Gilliland
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
/em