IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
LLEWELLYN STEVEN JOHNSON
And
HWR MOTORS tla RC MOTORS
Not reportable
Case no: A 143/2024
APPELLANT
RESPONDENT
Neutral citation: LS Johnson v HWR Motors tla RC Motors (A143/2024) [2025]
ZAFSHC 244 (15 August 2025)
Coram: Reinders ADJP et Chesiwe J
Heard: 14 April 2025
Delivered: 15 August 2025
Summary: Actio empti - latent defects - breach of purchase agreement -damages
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ORDER
1 The appeal succeeds and each party is ordered to pay its own costs of the
appeal.
2 The orders of the magistrate dated 2 February 2024 is set aside in toto and
replaced with the following order:
'Absolution from the instance is granted with costs.'
JUDGMENT
Reinders, J
[1] It is common cause that the respondent (plaintiff in the court a quo) during July
2022 purchased a 1997 Toyota Hilux from the appellant (defendant in the trial court).
Reference to the parties will be as in the trial court. In purchasing the vehicle, the
parties signed the plaintiff's standard purchase agreement and the defendant
delivered the vehicle to the plaintiff. However, the plaintiff averred that the vehicle had
some latent defects making it unfit for the purpose for which it was acquired, namely
the resale thereof. Before reselling it, the plaintiff had to spend an amount of R9 640,68
to have the vehicle repaired.
[2] The matter came before the magistrate in Bloemfontein who, having heard the
evidence, concluded that the defendant was aware of the defects and failed to disclose
same to the plaintiff, thereby to deceive the plaintiff into purchasing the vehicle. It was
concluded that the plaintiff proved the quantum of the defects to be the amount claimed
by the plaintiff wherefore judgment was entered in favour of the plaintiff.
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[3] The defendant, in prosecuting the appeal, applied for condonation for the late
prosecution of the appeal which was opposed by the plaintiff. Such condonation was
granted and need not further be addressed herein.
[4] On behalf of the plaintiff, its owner and shareholder, Mr Crail, testified how it
came about that the purchase agreement was entered into. His employee took the
vehicle for a test drive. However, upon starting the vehicle, he heard what was
described as strange noises. The defendant assured the witness that it was only a
minor problem whereafter the vehicle was loaded onto a trailer and transported from
Welkom to Bloemfontein. The next morning the vehicle would not start and the vehicle
was inspected by the plaintiff's mechanic who found that the diesel pump was a
modification and completely loose, and that water and oil were mixed in the radiator.
These were serious problems, causing them to split the engine to fix the cylinder head
as well as certain other faults as indicated on the job card. He called the defendant in
order to return the vehicle; however, the defendant had already used the money to pay
the original owner. According to the witness, the defendant offered to assist him with
the costs of the repairs from the commission he got from the sale. He originally
believed the defendant when he said the vehicle had a minor problem and was still
prepared to take the vehicle, thinking it would not cost him more than R5000 to fix the
problem. Eventually, he sold the vehicle. In cross-examination it was put to the witness
that there is no proof for the payment of the parts and repairs he avers was undertaken.
[5] The plaintiff called Mr Klue who stated that he had 26 years' experience as a
mechanic. He detailed the work he had performed on the vehicle and was of the view
that the prices of the parts indicated on the job card were the prices at the time.
However, he did not know what was paid for and what not, as he was not responsible
However, he did not know what was paid for and what not, as he was not responsible
for the payment thereof. He testified that the faults he identified would not have been
identifiable by a lay person.
[6] The defendant likewise testified and confirmed the agreement of sale. The
plaintiff's employee who came to test drive and collect the vehicle was informed by the
defendant that the vehicle was old and not everything was perfect. However, he failed
to identify these imperfections. His recollection was that a week later he was called
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and informed that the vehicle needed repairs to which he offered to help, in his words,
'in a small way'. However, he was not prepared to pay R9000.
[7] It is trite that a court of appeal will not lightly interfere with a trial court's findings
of fact and credibility unless it is apparent from the record that the trial court had
materially misdirected itself or erred to the extent that its findings were vitiated and fell
to be set aside.1 In Makate v Vodacom (Pty) LtcP the Constitutional Court with
reference to R v Dh/umayo and Another held as follows regarding the role of a court
on appeal in respect of interference:
'But even in the appeal, the deference afforded to a trial court's credibility findings must not
be overstated. If it emerges from the record that the trial court misdirected itself on the facts
or that it came to a wrong conclusion, the appellate court is duty-bound to overrule factual
findings of the trial court so as to do justice to the case. In Bernert this Court affirmed:
"What must be stressed here, is the point that has been repeatedly made. The principle that
an appellate court will not ordinarily interfere with a factual finding by a trial court is not an
inflexible rule. It is a recognition of the advantages that the trial court enjoys, which the
appellate court does not. These advantages flow from observing and hearing witnesses as
opposed to reading the cold printed word. The main advantage being the opportunity to
observe the demeanour of the witnesses. But this rule of practice should not be used to tie the
hands of the appellate courts. It should be used to assist, and not to hamper, an appellate
court to do justice to the case before it. Thus, where there is a misdirection on the facts by the
trial court, the appellate court is entitled to disregard the findings on facts and come to its own
conclusion on the facts as they appear on the record. Similarly, where the appellate court is
conclusion on the facts as they appear on the record. Similarly, where the appellate court is
convinced that the conclusion reached by the trial court is clearly wrong, it will reverse it."'3
[8] It is so that a latent defect can result in a claim for damages. It would be
necessary to prove the existence of the contract, the breach and the damages itself.
In our courts, a defect has been defined 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 has been sold or for which it is commonly used'4 and the defect
1 R v Dhlumayo & Another 1948 (2) SA 677 (A) at_ 705-706.
2 Makate v Vodacom (Pty) Ltd [2016) ZACC 13; 2016 (4) SA 121 (CC).
3 Ibid para 40.
4 Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 684. See also
Odendaa/ v Ferraris [2008) ZASCA 85; 2009 (4) SA 313 (A).
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would be latent if 'it was not visible or discoverable upon an inspection of the res
vendita'.5
[9] I am not convinced that the evidence proves a latent defect in the vehicle of
which the absence was warranted. On the contrary, it is the plaintiff's evidence that
the defendant informed him of minor problems on the vehicle and that he assumed it
could be necessary to repair same. However, he estimated such repairs would amount
to RS000. The fact that it ultimately amounted to more than R9000 to repair same
constitutes, at best, a mistake in his guess work of how much it would cost. It does not
take away from the fact that the defendant did inform him of minor problems the vehicle
may have. The evidence of the expert was to the effect that a lay person would not
have been able to ascertain or identify what was wrong with the vehicle. There is no
evidence that the defendant knew of any particular fault in the vehicle. To me it seems
that the plaintiff, who is in the business of buying and selling vehicles, purchased the
vehicle at a time when the vehicle was test driven and the plaintiff was aware that
money was still to be spent on the vehicle before it could be resold. It seems that if
such an amount was below RS000, there would not have been any complaint. The
spares included items like an oil filter, air filter, oil and welch plugs. I am of the view
that the plaintiff failed to prove any latent defects on the vehicle. But even if I am ·wrong,
I am not satisfied that the adduced evidence proved the necessity of the purchase of
all the items in plaintiff's list as part and parcel of the latent defects, nor does it prove
the purchase payment and reasonableness of the prices. I would have expected the
plaintiff to possess and discover all the invoices and proof of payments of the various
items. The onus to so prove was on the plaintiff.
[1 O] For the reasons stated, I am respectfully of the view that the learned magistrate
[1 O] For the reasons stated, I am respectfully of the view that the learned magistrate
erred. The appeal in my view should therefore succeed and be replaced with the order
we consider to be the correct order, which the court a quo ought to have ordered. In
the introductory paragraph of the able heads of argument filed by counsel for the
respondent, reference was made to Normandien Farms (Pty) Ltd v South African
Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and
5 Ibid.
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Others6 where the trite principle that judicial resources ought to be utilized efficiently
and should not be squandered, was confirmed by the apex court. The respondent
complained that the appellant ought not have imposed on this Court for a mere amount
of R9640.68. In our view, blame cannot be laid solely at the feet of the appellant. The
respondent chose to defend the relief claimed by the appellant - for the same mere
amount of just over nine thousand rand. We hold the view, therefore, that each party
should be ordered to pay its own costs of this appeal.
[11] Accordingly, I make the following order:
1 The appeal succeeds and each party is ordered to pay its own costs of the
appeal.
2 The orders of the magistrate dated 2 February 2024 is set aside in toto and
replaced with the following order.
'Absolution from the instance is granted with costs.'
e~ REINDERS
I concur
6 Normandien Farms (Pty)Ltd v South African Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Limited and Others (2020) ZACC 5; 2020 (4) SA 409 (CC)
Appearances:
On behalf of the appellant
Instructed by:
On behalf of the respondent:
Instructed by:
JJ Grundling
Du Tait Lambrechts Inc
Bloemfontein
J. Donnelly-Bornman
Neumann Van Rooyen
c/o Phatshoane Henney Inc
Bloemfontein
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