Yellow Jacket (Pty) Limited v Smit N.O and Another (1550/05) [2007] ZANCHC 45 (29 June 2007)

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[2007] ZANCHC 45
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Yellow Jacket (Pty) Limited v Smit N.O and Another (1550/05) [2007] ZANCHC 45 (29 June 2007)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No.:1550/05
Heard:22-24/05/2007
Delivered:29/06/2007
YELLOW JACKET
(PTY) LIMITED Plaintiff
versus
SANDRA SMIT
N.O. First Defendant
FRANCOIS
JACOBUS DU TOIT N.O. Second Defendant
FRANCOIS
JACOBUS DU TOIT N.O. Third Defendant
FRANCOIS
JACOBUS DU TOIT N.O. Fourth Defendant
JUDGMENT
MOKGOHLOA AJ
The
plaintiff, Yellow Jacket (Pty) Ltd company, instituted action
against the defendants, Sandra Smit N.O. and Francois Jacobus
Du
Toit N.O., for damages suffered by the plaintiff as a result of the
collision between the plaintiff’s vehicle a 2003 model
International Truck Tractor with registration numbers NU 26881 (“the
truck”) and a motor vehicle with registration numbers
FFB 726 NW
(“the bakkie”). The said collision occurred on 11 March 2004
along the N1 high way between Richmond and Hanover,
Northern Cape.
All
four people travelling in the bakkie i.e. Maria Basson , Jasper
Christoffel Gerhardus de Beer, Hermanus Johannes de Beer and
Marieta de Beer were killed. The defendants are sued in their
capacities as executors of the deceaseds’ estate.
At the
commencement of the trial, I was informed by both parties that the
defendants have conceded to the merits of the plaintiff’s
claim as
well as the plaintiff’s costs of towing the vehicle in the amount
of R9 177-00. The only issue which remains to be
adjudicated is the
quantum of the damage suffered and costs. Exhibit ‘A’ which is
the plaintiff’s bundle was referred to
extensively by both parties
during the trial.
The plaintiff’s
claim is for the amount of R806 147-36 alternatively R764 177-00
made out as follows:
Reasonable
costs for the necessary repairs on the truck as per quotation from
Hermans Truck Accident Repairs, item 4 on Exhibit
‘A’, in the
amount of R547 868 -79 plus costs of engine repairs as per
quotation from Cummins Diesel South Africa (Pty) Ltd,
item 5 in
Exhibit ’A’ amounting to R249 106-36.
Alternatively,
the difference between the pre-accident value of the truck and the
post-accident marked value thereof in the amount
of R755 000-00.
The
Plaintiff’s Case:
The
plaintiff called Mr Paul Edward Hamilton, an expert witness to
testify. Hamilton is employed at Hamilton Ramsden & Alley
Loss
Adjusters and has 20 years experience as a mechanic and fitter and 25
years experience as a loss adjustor. He is also a member
of the
Institute of Loss Adjustors.
Hamilton’s
evidence was that these type of trucks are imported new and the
purchase price vary with exchange rates. The price
of the
plaintiff’s truck is R1 014 600-00 Including Vat. He examined the
plaintiff’s truck immediately after the accident.
The truck was
ten months old and had travelled 146 046km. According to him the
trade and retail figures issued by Mead &
McGrouther are used as
a guideline in as much as they are based on a fixed depreciation
against a new price list.
The
policy of insurance was insured on a retail basis and he suggested
to the insurers a figure of R859 000-00. Retail value settlement
is
a commercial arrangement between an insurer and the client and the
industry standard is to settle on the average i.e. mean,
between
trade and retail which is according to Hamilton R803 766-00
including Vat, at the time of loss. Hamilton arrived at this
figure
after using Mead & McGrouther depreciation figures.
According
to Hamilton, the fair and reasonable value of the wreck truck
amounts to R95 000-00 including Vat as per quotation by
Acme
Services item 13 in Exhibit ‘A’. Deducting this figure from the
mean leaves a difference of R708 766-00. In coming to
this
conclusion the value aforesaid has to be balanced against the repair
costs. The truck was under warrant from Tyco International
and
repairs, if possible, would have to be conducted by a company
acceptable to Tyco namely Hermans and Cummins. Hamilton stated
that
the underwriters would have negotiated a discount of 5% beforehand.
The quotation for repairs by Hermans and Cummins amounted
to R768
500-18 (item 4 and 5 in Exhibit ‘A’). Hamilton deducted an
amount of R8000-00 for each salvage and 5% discount and
the fair and
reasonable repair costs according to him, was R722 075-17.
Having
regard to the amount of R722 075-17 against the value salvage
figures and further regard to the distinct possibility of

undiscovered damage to the engine, Hamilton came to the conclusion
that it is uneconomical to repair the truck.
Hamilton was the
only witness for the plaintiff. Mr Bitter, for the defendants, made
an application for absolution from the instance.
He argued that the
plaintiff has failed to prove the pre-collision and post-collision
market value of the truck. He argued further
that item 14 in
Exhibit ‘A’ which is the quotation from Tyco Trucks refers to
another truck and not the truck in question.
He said the plaintiff
could have adduced the best evidence by calling a witness to confirm
the purchase price of the truck in
question. Mr Bitter further
argued that the amount of R95 000-00 is not a conclusive amount on
the wreck as the plaintiff failed
to get quotations from other
dealers.
I dismissed the
defendant’s application for the absolution from the instance as
there was prima facie evidence against the defendant.
The
defendants did not call any witness and closed their case.
In
order to succeed in his claim, the plaintiff must prove on a balance
of probabilities that he has suffered damages and to what
extent.
(See
Visser P.J. JM Law of
Damages)
.
The plaintiff’s measure of damages for the damage on the vehicle
is the damaged vehicle’s diminution in value. A more common
method of determining the plaintiff’s damages is to prove the
amount it would cost to repair and restore the vehicle to its

pre-collision condition. This method can only be used if the costs
of the repairs do not exceed its diminution in value.
See
RG McKerron The Law of Delict 5
th
ed at page 108.
To
prove the diminution in value it is not sufficient for the plaintiff
merely to adduce evidence of an offer for the vehicle prior
to the
collision and the amount for which he sold it in its damaged state.
The plaintiff should adduce evidence from an expert,
e.g. an
insurance assessor, of the vehicle’s pre-collision and
post-collision market value.
See
Myburgh v Hanekom
1966 (2) SA 157
(GW) 161 F-G
In
Turkstra Ltd v Richards
1926 TPD 276
at 283 Stratford J remarked as
follows:
“When there is a finding for an admission that the damage has
been caused in a monetary amount, the Court must do its best to
assess the amount of such evidence as is available, and you cannot
non-suit a plaintiff because, in the nature of things the damage
cannot be computed in exact figures”
See
also Hersman v Shapiro & Co.
1926 TPD 367
at 379
and
Lazarus
v Rand Steam Laundries 1946 (Pty) Ltd
1952 (3) S.A. 49
(T) at 50 –
51A .
Hamilton’s
testimony showed that the costs of the repair in this matter exceed
the diminution value of the truck and that it would
be uneconomical
to repair it. He stated the pre-collision value of the truck based
on the invoice from Tyco Trucks which relates
to the same model of
the truck. According to Hamilton, the plaintiff bought this same
truck from Tyco Trucks in the same month.
This was not challenged
during cross-examination. He further used Mead & McGrouther
guideline to determine the price of
the truck at the time of the
collision.
See
Erasmus v Davis
1969 (2) SA 1
(1)
at
7B.
In
Enslin
v Meyer
1960 (4) S.A. 520
(T)
the plaintiff in proving the market value of the car after the
accident, adduced evidence of an offer made by one Van Vuuren who
had no expert knowledge of motor value. In the present case, the
plaintiff obtained the quotation from Acme Services for R95 000-00.

Hamilton with his knowledge and experience as a motor mechanic
advised the plaintiff to accept this offer.
In
Hersman v Shapiro & Co. (supra) at 379 -380
the
court expressed
the
following:
“
There are cases
where assessment by the Court is very little more than an estimate;
but even so, if it is certain that pecuniary damage
has been
suffered, the Court is bound to award damages. It is not bound in
the case where evidence is available to the plaintiff
which he has
not produced; in those circumstances the court is justified in
giving, and does not give, absolution from the instance.
But where
the best evidence available has been produced, though it is not
entirely of a conclusive character and does not permit
of a
mathematical calculation of damages suffered, still, if it is the
best evidence available, the Court must use it and arrive
at a
conclusion based upon it”.
I am of the view
that all relevant evidence relating to the issue of damages suffered
by the plaintiff have been placed before me.
I am satisfied that the
plaintiff has discharged its onus on a balance of probabilities.
Mr Bitter argued
that if I find that the plaintiff has succeeded in proving its case
on quantum, then judgment should be granted
against the second
defendant only. He submitted that the defendants have conceded in
their plea that Jasper De Beer was the driver
of the bakkie at the
time of the accident. The plaintiff’s claim arose out of the
negligent driving of a motor vehicle and logic
dictates that a
vehicle can be driven by one person at a time. At this stage, there
is no liability that can be imputed against
the other three
defendants.
The above having
been stated I find as follows:
That the
accident occurred as a result of the sole negligence of the second
defendant ( Jasper Christoffel Gerhardus De Beer)
as represented by
Francois Jacobus Du Toit;
That
the plaintiff has discharged its onus on quantum on a balance of
probabilities;
That the
pre-collision marked value of the truck is R803 766-00; and its
post-collision market value is R95 000-00;
That the
difference between the pre-collision and post –collision market
value is R708 766-00
That the second
defendant is liable to the plaintiff in the amount of R708 766-00
plus towing costs of R9 177-00.
There is no
reason why costs should not follow the result.
I therefore make
the following order.
ORDER
Second
defendant is ordered to pay to the plaintiff an amount of R717
943-00 plus costs.
Second
defendant is ordered to pay to the plaintiff interest on the amount
R717 943-00 at the rate of 14% per annum a tempore morae.
____________________
F.E.
MOKGOHLOA
ACTING
JUDGE
NORTHERN CAPE
DIVISION
On
behalf of the Plaintiff :Adv P. Fischer
Instructed
by :Engelsman Magabane Inc.
On
behalf of the Defendant :Adv J. Bitter
Instructed
by :Fletcher’s Attorney
Reportable:
Yes / No
Circulate
to Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No:
Heard:
Delivered:
ORANJE
KOöPERASIE BEPERK APPLICANT
versus
GIDEON
GABRIEL NIEUWOUDT RESPONDENT
JUDGMENT
MOKGOHLOA AJ
The applicant
brought an application before the respondent on 11 August 2006
wherein he sought an order in the following terms:
“
1.
Die betaling van ‘n bedrag van R120 000.00 tesame met rente daarop
bereken soos volg:
Vanaf
1 April 2005 tot 14 April 2006 teen ‘n koers van 15% per jaar.
Vanaf
15 April 2006 tot datum van betaling teen ‘n koers van 14,5%
per jaar.
2. Betaling van die
bedrag van R1 528.76.
3.
Betaling van die bedrag van R1 453 .14.
4.
Betaling van die bedrag van R1 477.80.
5. Betaling van die bedrag
van R116 929.26 plus rente bereken teen 14,5%
per
jaar vanaf 16 April 2006 tot datum van betaling.
”
The applicant
stated in his affidavit that there was a dispute between hi and the
respondent and that the matter was then referred
for arbitration.
On 27 April 2005 the parties attendant an arbitration and a
settlement was reached per agreement between the
parties and the
following was made an order of the Arbitration:
“
2.
DIE LID sal die bedrag van R500 000.00 (Vyfhonderd Duisend Rand)
aan die Koöperasie betaal
en wes as volg:
2.1 Vyftig Duisend Rand (R50
000.00) betaalbaar voor of op 6 Mei 2005.
2.2
Vyftig Duisend Rand (R50 000.00) betaalbaar voor of op 30 Junie 2005.
2.3
Vyftig Duisend Rand (R50 000.00) betaalbaar voor of op 30 Augustus
2005.
2.4
Eenhonderd En Twintig Duisend Rand (R120 000.00) betaalbaar voor of
op
31 Januarie 2006.
2.5
Eenhonderd En Tien Duisend Rand (R110 000.00) betaalbaar voor of op
28
Februarie 2006.
2.6
Eenhonderd En Twintig Duisend Rand (R120 000.00) betaalbaar voor of
op 31 Maart 2006.
Die uitstaande balans van
die kapitaal vermeld in paragraaf 2 sal rente dra
teen die dan heersende
prima koers van die Absa Bank Bpk. Soos van tyd
tot tyd deur gemelde bank vasgestel plus vier persent.
Die rente sal bereken word
op die kapitaal vermeld in paragraaf 2 en sal
enkelvoudig saamgestel
en bereken word.
Die rente, bereken vanaf
27 April 2005, sal maandeliks betaal word deur
die lid met die eerste
betaling 6 Mei 2005 en maandeliks darna voor of
op
die 7de dag van elke maand.
Sou die lid nalaat om enige
betaling voor of op die toepaslike betaaldatum te
maak, dan in daardie geva
sal die volgende procedure geld:
Die Koöperasie sal die
lid 7 dae kennis van die versuim gee per telefaks by
faksnommer 054 – 451 0036.
Dit sal geag word dat die
lid die kennisgewing in die voorafgaande paragraaf
ontvang het binne 3 dae
nadat die kennisgewing so gefaks is.
Indien die lid nalaat om
die betaling dan verskuldig binne 7 dae te maak,
dan in daardie geval sal
die hele uitstaande bedrag plus rented an verskuldig
wees om hierdie toekenning ‘n bevel van die Hof te maak en sodanige
eksekusie
stappe teen die lid te neem as waarop hulle voortspruitend
daaruit
geregtig is.
5.1 Die lid sal 60 persent
van die ooreengekome of getakseerde koste van
die
Koöperasie betaal en wel binne 30 dae na sodanige ooreenkoms of
allokasie
van die rekening, welke koste en uitgawes van die arbitrasie en
arbiter.
5.2
Indien die partye nie op die omvang van die koste kan ooreenkom nie,
sal
die kosterekening getakseer word deur die takseermeester van die
Hooggeregshof, Kimberley.
5.3
Koste, soos tussen party en party, sal op die skaal en teen die
tariewe
van
die Hooggeregshof betaalbaar wees.
The applicant
states that the respondent failed to make payment of an amount of an
amount of R120 000.00 which amount was due to
be paid on 31 March
2006 and that this amount is now due and payable. He further claims
interest from 1 March 2006 to 31 May 2006
and taxed costs.
The applicant’s
notice of motion was served on the respondent on 25 May 2006. The
respondent served his notice to oppose on 19
June 2006. On 28 June
2006 the applicant served his notice to amend the notice of motion
by adding new paragraphs ie.
“
6.
Koste van aansoek
7.
Verder en/of alternatiewe regshulp
”
On 11 July 2006
the applicant set the matter down for trial. The respondent served a
notice in terms of Rule 30(2)(b) of the Uniform
Rules and asked for
an order setting aside the applicant’s notice of set down as an
irregular step as the applicant failed to afford
the respondent
enough time to file his opposing affidavit to the applicant’s
application.
Rule 28 of the
Uniform Rules of Court provides the procedure to be followed when
amending a plea or document. In particular Rule
28 provides:
“
(2)
The notice referred to in subrule (1) shall state that unless written
objection
to the proposed amendment is
delivered within 10 days of delivery of the
notice,
the amendment will be effected…
(3) ……………
(4) …………..
(5) If no objection is delivered as contemplated in subrule (4),
every party
who received notice of the
proposed amendment shall be deemed to
have
consented to the amendment and the party who gave notce of
the
proposed amendment may, within 10 days after the expiration of
the
period mentioned in subrule (2), effect amendment as contemplated
in
subrule (7).
…………………………
Unless the court otherwise
directs, a party who is entitled to amend
shall effect the amendment
by delivering each relevant page in its
amended
form.
”
6.
Advocate
Schreuder on behalf of the applicant argued that it was not necessary
for the applicant to deliver an Amended Notice of Motion
as Rule
28(7) provides that only amended pages need to be delivered. He
further argued that Rule 28(5) gives the applicant a discretion
to
deliver an amended page as it refers to “
may
”
(“
kan
”).
This cannot be true. Rule 28(7) states that a party
shall
effect the amendment by delivering each relevant page in its amended
form (my underlining).
.
______________
MOKGOHLOA
ACTING
JUDGE
On behalf of the Applicant :
Instructed
by :
On
behalf of the Respondent :
Instructed
by :