SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 4048/2024
In the matter between:
ADRIAAN FRANCOIS MEIRING Applicant
and
RC AUTO 1
st Respondent
(Registration Number: K201[…] )
ANDRE LOURENS BREYTENBACH 2nd Respondent
(Identity Number: 5 […])
SUSANNA CATHARINA BREYTENBACH 3rd Respondent
(Identity Number: 6 […])
CALANDRA TRADING 533 4
th Respondent
(Registration Number: B20[…] )
AIS TRADERS 5th Respondent
(Registration Number: K 202[…] )
Coram: Nemavhidi, AJ
Heard: 24 October 2024
Delivered: 07 February 2025
This judgment was handed down in court and electronically by circulation to the
parties’ representatives by email and released to SAFLII on 07 February 2025. The
date for hand- down is deemed to be 07 February 2025.
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Summary : Defect of a res vendita which impairs the utility or the effectiveness
of the purpose for which it has been sold or for which it is commonly used.
Remedies available to the purchaser.
ORDER
1. The relief sought in the n otice of motion is granted with costs scale A of r ule 6 7.
2. The applicant is entitled to cancel the oral contract of sale and claim restitution
based upon the misrepresentation, alternatively on the failure of F irst Respondent to
disclose the existence of the defects and the fact that the motor vehicle was involved in a motor vehicle collision.
JUDGMENT
Nemavhidi AJ
[1] On 2 November 2023, the United States Department of Labor
compensated the applicant for injuries and permanent disability sustained
because of the abovementioned incident. In order to facilitate his movements, he
required an automatic vehicle so that he did not have to shift gears manually.
[2] On 3 November 2023 he and his father visited various second- hand car
dealerships in Bloemfontein to identify and purchase a suitable vehicle for himself.
They visited the f irst respondent ’s showroom (RC Auto) where a salesperson
called them and informed them that First Respondent had a 3.2 Double Cab Ford
Ranger Wildtrack which he could purchase for the amount of R360 000. He
purchased the vehicle and paid in cash.
[3] Ms Charlene Wiese joined them as they were discussing the motor vehicle
and actively marketed it. She stated that the motor vehicle had a full -service record
and that it was accident -free. She, however , informed them that the tyre sensor
as well as the pre- collision sensor had a problem and that RC Auto would repair
same at his own expense.
[6] The applicant took the vehicle for a test drive with Mr Barry Lourens , a
salesman of the RC Auto . On their return , he informed Ms Wiese that he will
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purchase the vehicle. She then informed him that he would take the vehicle just
before the weekend commenced . On the same day he concluded an oral
agreement with Ms Wiese, who represented RC Auto . Ms Bothma prepared a t ax
invoice and instructed him to transfer the purchase price into a bank account ,
which he did.
[7] On the 16th of November 2023 , the motor vehicle was registered in
Applicant’s name. Soon thereafter he realized that the motor vehicle had various
problems and defects which consisted of the following errors:
i. The right rear passenger door could not easily open and close to
such an extent that he could not use it;
ii. The motor vehicle would swerve to the right side of the road;
iii. The motor vehicle would pull to the left whenever the brakes are
used;
iv. The sensors were defective.
[8] On the 6
th of November 2023, he returned the motor vehicle to the First
Respondent for the repair of the sensors. On the 8th of November 2023, he was
informed that the repair costs were R12 000,00 and that the sensors had been properly fixed. He was not asked to pay for the repair costs. Two days later the
sensors stopped functioning and on 13 November 2023, he returned the vehicle
to the First Respondent for the sensors to be repaired.
[9] On 20 November 2023, he took the vehicle to a Ford dealership (Human
Auto) for a quotation for the repair of sensors and the 60,000 kilometres major
service. On 21 November 2023, he was given a report done by Human Auto to
the effect that:
i. The service history of the vehicle was not up to date.
ii. The motor vehicle was involved in a serious motor vehicle collision.
iii. The sensors were still defective.
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Human Auto quoted an amount of R8 737, 08 for the repair of the Cam sensors
and R31 088,41 for the repairing the pre- collision control. He did not authorize
Human Auto to repair those sensors as first respondent had promised to fix them.
He phoned Ms. Wiese and informed her about the motor vehicle having been
involved in a collision and she denied that the vehicle had been involved in a collision and emphasized that it was accident -free.
[10] On 26 November 2023 he drove the vehicle to the Western Cape and upon
arrival , all four tyres had to be replaced due to wear and tear caused by defective
shock mountings which also had to be replaced. The rear shock mounting was
bent because of the hard bumps after the motor vehicle collided with something.
Naturally, he had to perform a wheel alignment test, to ensure the correct functionality of the vehicle. Human Auto’s report was to the effect that the tyres
were still in an acceptable condition and that he could still use them, however , it
just took a trip from Bloemfontein to Vredenburg for the tyres to wear off. Due to
this damage, he phoned Ms. Wiese, who maintained that the motor vehicle had
never previously been involved in an accident.
[11] The applicant engaged his brother to scan the registration disk of the
vehicle to obtain its historical information. He discovered that the vehicle had been
involved in an accident at some point . Second Respondent purchased it from an
entity called Gobid (Pty) Ltd which sells accident -damaged vehicles and salvage d
cars. When confronted with this information, Ms. Wiese changed her stance and
conceeded that the vehicle was involved in a collision. He took the vehicle to
DECRA and requested that they conduct a technical inspection which resulted in a report to the effect that the vehicle had been involved in a collision and had many
defects which were not disclosed to him.
The Respondents’ Version
[12] The Applicant inspected various vehicles on the first respondent’s floor, and
he was particularly interested in a Ford Ranger Double Cab bakkie. He noticed a
vehicle parked outside the front of the F irst Respondent’s premises. It was not on
the First Respondent’s floor for sale and Ms. Wiese was called to assist , who
informed Applicant that the vehicle was not part of the F irst Respondent’s dealer’s
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stock. That vehicle did not have any ‘ for sale’ signage displayed on the windscreen
of the vehicle.
[13] Ms. Wiese informed A pplicant that she was of intention to purchase that
vehicle from the second respondent who was the owner thereof. Ms. Wiese
informed the applicant of the sensor defects on the vehicle, that it was a respray
and that this w as a result of the vehicle being involved in a collision. She informed
Applicant that the vehicle was repaired and successfully underwent the necessary
roadworthy tests.
[14] Upon advice by Ms Wiese , he took the vehicle for a test drive and made a
subsequent offer to purchase. Ms. Wiese phoned Second Respondent in the
presence of the A pplicant who accepted the offer on condition that Applicant
would be responsible for the transfer of the vehicle and the costs occasioned
thereby.
[15] Ms Wiese , First Respondent’s administrative assistant assisted Applicant
with the necessary invoicing. The invoice presented to the Applicant clearly
showed that the seller was A L Breytenbach ( Second Respondent). The Applicant
made payment of the purchase price, took delivery of the vehicle as well as the
necessary documents to transfer the vehicle into his name. He signed an
acknowledgement confirm ing that he inspected the vehicle and found it in good
condition and that all defects had been pointed out. The registr ation certificate
presented to the applicant recorded the second respondent as being the
registered owner of the vehicle.
The applicable l aw
[16] The so-called Plascon -Evans rule
1 makes it clear that an applicant who is
seek ing final relief on motion must , in the event of a conflict , accept the version
set up by his opponent when that version is not of such a nature as to raise real,
genuine or a bona fide dispute of , or if the version is so far -fetched or untenable
that the court is justified on rejecting the same on papers alone. A real, genuine
1 Plascon -Evans (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA 366
(A).
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and bona fide dispute of fact can only exist where the court is satisfied that the
party, who purports to raise a dispute, has in a serious and unambiguous manner
address ed the fact to be disputed. The respondent commits himself to the
contents, he will only in exceptional circumstances be permitted to disavow the
same.
[17] In Soffiantini v Mould2 the court added that the court must take a ‘ robust,
common- sense approach to a dispute’ otherwise the ‘effective functioning of the
Court can be circumvented by the most simple and blatant stratagem while the
court should not hesitate to decide an issue because it may be difficult to do so’.
If a common -sense robust approach is applied, then it becomes evident that the
respondents have not raised a valid bona fide dispute of fact while their version is
so farfetched and untenable for the following reasons:
i. Ms Wi ese would have advised the applicant to contact the second
respondent upon being confronted with the problems and defects present in the vehicle. This never happened in the WhatsApp messages and voice
notes .
ii. The allegation that the first respondent was not the owner only
surfaced much later justifying an inference that the version amounts to an
afterthought.
iii. The f irst respondent accepted liability to repair the sensors at a cost
of R12 000,00, the second respondent was the owner of the vehicle he would have carried the repair cost.
iv. Applicant researched the history of the vehicle and discovered that
it was damaged and purchased from Gobid, which sells salvaged and
accident -damaged vehicles. Dekra's report also contradicted the denials
by the respondents to the effect that the vehicle was not accident -free at
the time of the sale.
v. The vehicle was parked on the pavement in front of the first
respondent ’s showroom and the employee had the keys thereof. He was
able to open the vehicle for the applicant and enabled applicant to take the vehicle for a test drive. The i nescapable conclusion is that the first
2 Soffiantini v Mould 1956 (4) SA 150 ED at 154G -H.
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respondent was in possession of the motor vehicle. Possession of
moveable property raises a rebuttable presumption of ownership which was
never rebutted in casu .3
[18] Registration of a motor vehicle in a person’s name is not sufficient to
establish ownership of that motor vehicle. There is no requirement that a change
of ownership must be registered for transfer to take place while the possession of the registration papers is prima face proof of ownership.
[19] It is possible that Second Respondent purchased the motor vehicle,
registered it in his name and sold same to F irst Respondent who, in turn sold it to
the Applicant before changing the registration details. Nothing in law prevents a
person from selling property belonging to a third party. If it is accepted that Second
Respondent was the owner of the vehicle, nothing in law prevented F irst
Respondent from selling the motor vehicle. Since Applicant was not aware that
First Respondent was not the owner of the vehicle, he is entitled to proceed
against First Respondent and reclaim payment from him.
[20] There was no contact between the A pplicant and S econd Respondent as
all communication was limited to the F irst Respondent’s employees. First
Respondent must have represented the S econd Respondent who, according to
the Applicant’s evidence, must have been an undisclosed principal, where the
principal is not disclosed, the intermediary and the third person create a vincula
iuris between them through the contract concluded i n their names .
4 The agent
who acts for an undisclosed principal may be sued instead of the principal .5
[21] It is trite that a party induced to conclude a contract may rely on the
misrepresentation to void a contract by cancelling the same and claiming
restitution. Applicant must prove a representation made by the Respondents or
their agent which was material, which was false and intended to induce the
claimant to enter the contract.
3 See in this regard Sheriff Bloemfontein West v Carospan (Pty) Ltd t/a Nashua Bloemfontein and
Another [2024] ZAFSHC 2 paras 21 to 30.
4 Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Kooperasie Bpk 1972 (1) SA 761 A.
5 Botha v Giyose t/a Paragon Fisheries [2007] ZASCA 73 para 8
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[22] The purchaser may also reclaim the purchase price in terms of the actio
redhibitor ia if the following elements are proved:
The res vendita contained a defect which substantially impaired the
object ’s utility for which it is commonly used. The defect existed at the time
of the sale.
i. The defect was latent, in other words not visible or discoverable
upon inspection.
ii. The purchaser would not have purchased the object had he known
thereof.
iv. The purchaser is willing and able to effect restitution.
[23] The First Respondent made a representation that Respondents sold a
motor vehicle to him which contained various defects , and which was previously
involved in a collision.
[24] The Applicant appended a quotation dated 20 November 2023, issued by
Human Ford, containing a recording of repair work to be performed on the vehicle
and a comprehensive report prepared by DECRA , dated 8 January 2024,
containing a recording of the various defects and problems present in the vehicle.
DECRA and Human Auto are two independent expert witnesses whose observation and opinions were never rebutt ed by Respondents with the aid of
contradictory expert reports and or opinions .
[25] The applicant is not an expert who could examine, discover and identify
defects listed by experts in the field. His real opportunity to inspect the vehicle was
during an extended drive to the Western Cape. It must be noted that the applicant
was desirous to purchase an accident and defect -free motor vehicle but the first
respondent sold something completely different from t hat. In Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co. Ltd
6 it was held that:
6 Holmdene Brickworks (Pty) ltd v Roberts Construction Co 1977 (3) SA 670 (A).
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‘Broadly speaking in this context a defect may be described as an abnormal quality
or attribute which destroys or substantially impairs the utility or effectiveness of
the res vendita, for the purpose for which it was sold or for which it is commonly
used . . . Such a defect is latent when it is one which is not visible or discoverable
upon an inspection of the res vendita.’7
[26] Respondents allege that the res vendita was purchased on a voetstoots
basis, however , the acknowledgement of delivery does not contain such a
recording. It is also trite that a purchaser could avoid the consequences of a
voetstoots sale if the seller kne w of the latent defect and did not disclose it and in
fact deliberately concealed it with the intention to defraud the purchaser.
[27] It has been established that the motor vehicle contained serious latent
defects and was in a motor vehicle collision. There can be no bona fide dispute
as far as these issues are concerned.
Order
[28] In the result, the following order is made:
1. The relief sought in the n otice of m otion is granted with costs scale A of
Rule 67.
2. The applicant is entitled to cancel the oral contract of sale and claim
restitution based upon the misrepresentation, alternatively on the failure of F irst
Respondent to disclose the existence of the defects and the fact that the motor
vehicle was involved in a motor vehicle collision.
Nemavhidi AJ
Appearances:
For Applicant: Adv JC Coetzer
Instructed by: Honey Attorneys
Bloemfontein
7 Ibid at 683H -684A.
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For Respondents .: Adv GC Steenkamp
Instructed by: Bezuidenhout Inc
Bloemfontein