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[2026] ZAKZDHC 43
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McCarthy (Pty) Ltd t/a Bidvest Audi Centre Wonderboom v Naidoo (D1403-2025) [2026] ZAKZDHC 43 (4 August 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL
DIVISION,
DURBAN
Reportable/Not
Reportable
Case no: D1403-2025
In
the matter between:
McCARTHY
(PTY) LTD t/a
BIDVEST
AUDI CENTRE WONDERBOOM
APPLICANT
and
MAHESHWARI
NAIDOO
RESPONDENT
In
re:
MAHESHWARI
NAIDOO
APPLICANT
and
McCARTHY
(PTY) LTD t/a
BIDVEST
AUDI CENTRE WONDERBOOM FIRST
RESPONDENT
AUDI
SA (PTY) LTD
SECOND RESPONDENT
[And
in the first respondent's application for costs in terms of rule
41(1)
(c)]
Coram:
M E Nkosi J
Heard:
24 July 2026
Delivered:
04 August 2026
ORDER
1.
The application
and the counter-application are dismissed.
2.
Each
party
shall
pay
its
own
costs
of
the
main
application,
this
application, as well as the counter-application.
JUDGMENT
M E Nkosi J
Introduction
[1]
This is an interlocutory application
brought by McCarthy (Pty) Ltd t/a Bidvest Audi Centre Wonderboom ·
(the first respondent
in the main application) in terms of Uniform
rule 41(1)
(c).
It
seeks an order directing Maheshwari Naidoo (the applicant in the main
application) to pay its costs occasioned by her withdrawal
of the
main application, together with the costs
of
this application. The second respondent did not play any role in the
main application.
[2]
For the purposes of this application and
for ease of reference I will refer to McCarthy (Pty) Ltd as the
applicant and to Maheshwari
Naidoo as the respondent. The application
is opposed by the respondent who, in turn, lodged a
counter-application seeking an order
directing the applicant to pay
the costs of the main application, together with the costs of her
counter-application.
Factual background
[3]
The factual background to the matter,
briefly stated, is that the respondent purchased a brand-new vehicle
(an Audi A3) from the
applicant. She took delivery of the vehicle on
1 May 2004. The vehicle operated flawlessly from that date until 1
November 2024
when, following an attempt to install a tracking device
by a third-party technician, it displayed an electrical fault. On 2
November
2024, the vehicle was towed to the Audi Centre, Durban, for
inspection. On 8 November 2024, the applicant transmitted an email to
the respondent advising that the diagnostic finding was that the
vehicle had visible traces of water and water damage.
[4]
The respondent was also provided with
colour photographs depicting the rust on the bolts on the side of the
gearbox of the vehicle.
According
to
the applicant, the rust on the bolts were an indication that the
water level had, at some point, been above the two bolts. This
means
that the lower part of the gearbox was somewhat submerged in water,
or salt water, even if it was for a brief moment. The
respondent was
not satisfied with such finding, and did not accept it.
[5]
On 11 November 2024 the respondent
transmitted an email to the applicant demanding a full refund of the
purchase price of the vehicle
in terms of s 56 of the Consumer
Protection Act 68 of 2008 ('the CPA') on the basis that the vehicle
was defective. On 20 December
2024 Audi Centre, Durban, issued a
conditional repair estimate of R60 341.10 which, supposedly due to
water ingress, was subject
to stripping and further diagnosis. On 3
February 2025 Mr Deon Furber, a qualified mechanic and diagnostic
technician who was employed
by the applicant at the time, conducted
an inspection of the vehicle at the premises of the Audi Centre,
Durban.
[6]
Mr Furber's findings were,
inter
alia,
that the electrical faults in the
vehicle were caused by an ingress of water which resulted in the
protective device, being an 18-amp
fuse designed to break the circuit
when excess water enters the system, operating as intended to prevent
damage to the vehicle.
According to his findings, simply replacing
that fuse restored the vehicle to working order. According to the
applicant's answering
affidavit in the main application, the water
ingress could have occurred when the vehicle was partially submerged
in water by the
respondent.
[7]
On 10 February 2025 the respondent
instituted legal proceedings in the main application claiming a
refund of the full purchase price
and tendering the return of the
vehicle. On 14 February 2025, the vehicle was inspected and
diagnostically tested by Audi Centre
Umhlanga, which issued a repair
estimate stating that the vehicle had water damage. It required
repairs to the fuse box and the
replacement of fuses. It added that
the diagnosis was subject to
further
assessment,
stripping,
diagnosis
and
possible
price
increase.
The
estimated
cost of
the initial
repairs
quoted
by
Audi
Centre
Umhlanga
was
R11 774.23.
[8]
The respondent, through her attorneys,
requested a copy of the Audi Centre Umhlanga assessment report. In
response, the applicant
declined the respondent's request on the
basis that the Regional Area Manager representing the manufacturer at
the time refused
to grant the applicant permission to provide the
respondent with a copy of the relevant report. The respondent, on the
other hand,
was not prepared to accept the applicant's word regarding
the nature and extent of the alleged damage to the vehicle without
seeing
the report compiled by Audi Centre Umhlanga in support
thereof.
[9]
According to the respondent, she was then
advised by her counsel at the time to appoint a certain Mr Yves
Accolla, who is an expert
in the field of motor mechanics, to inspect
the vehicle. She accepted the advice and proceeded to appoint Mr
Accolla. On 7 October
2025, the unsigned report that was supposedly
prepared by Mr Accolla was forwarded to the applicant's attorneys
by
the
respondent's
attorneys.
On 8 October
2025,
which
was the
date of
the hearing of the matter
on
the opposed
motion
roll, the respondent withdrew the main application without tendering
the costs thereof.
The issues
[10]
According
to
the
agreement
between
the
parties,
the
issues
for
determination
by
this court are the following:
(a)
whether Mr Accolla's report is admissible;
(b)
whether the respondent has established
circumstances justifying a departure from the general principle that
a withdrawing party
must pay the costs occasioned by the withdrawal;
(c)
in the event that the general principle
regarding costs is departed from, whether the respondent's
counter-application ought to
be granted; and
(d)
whether certain portions of the
respondent's opposing affidavit are scandalous, vexatious and/or
irrelevant and ought to be struck
out in terms of rule 6(15).
[11]
Regarding the counter-application, it was
indicated by Ms
Maharaj,
who
appeared for the respondent, in response to a question posed to her
by this court that such application was not brought in terms
of rule
41(1). In her submission, which was not challenged by Mr
Prinsloo,
who appeared for the applicant, the
presiding judge in the main application was not inclined to hear
arguments on costs without
affidavits being filed by both parties
setting out the factual basis thereof. It was further submitted by Ms
Maharaj that it was
always the respondent's intention to claim the
costs of the main application against the applicant. Subject to such
clarification,
I am now proceeding to consider the issues referred by
the parties to this court for determination.
Whether Mr
Accolla's report is admissible?
[12]
It is contended by the applicant that Mr
Accolla's report has no probative value. Instead, it constitutes
hearsay evidence because
it is unsigned and is not supported by any
confirmatory evidence deposed to by Mr Accolla. For this reason, the
applicant implores
this court to regard Mr Accolla's report as
inadmissible. In response, it was submitted by Ms Maharaj that the
applicant
cannot
approbate
and
reprobate
regarding
the
admissibility
of
Mr
Accolla's report. She argued that when
the applicant elected to annex a copy of Mr Accolla' s affidavit, in
its unsigned form, to
its founding affidavit, and explicitly relied
upon it by cherry picking from it information to support its version
of events regarding
the costs argument, it formally introduced the
document into evidence.
[13]
By
introducing the document under oath, so argued Ms Maharaj, the
applicant adopted the document and explicitly accepted its relevance
to these proceedings.. The authority she relied on in support of her
argument is
Mooketsi
v MEC for Health and Social Development,
[1]
where the following comment was made by that court:
'The
documents originate from the respondent and were relied on by both
parties, at least for some time. As such, the respondent
could not be
heard to be objecting to the same documents he has placed in
evidence.'
[2]
[14]
Taking into account the facts of this
matter, I am inclined to agree with Ms
Maharaj.
By
annexing
a
copy
of
Mr
Accolla's
report
to
its
founding
affidavit
the
applicant
has
effectively
put
it
up
as
part
of
the
evidence
for
consideration by this court. The applicant cannot expect this court
to be selective in its consideration of the document by
referring
only to those parts thereof that support its case. For the sake of
fairness, this court is bound to consider the document
in its
entirety. For this reason, my view is that the answer to the question
posed in the heading to this section must be in the
affirmative,
which means that Mr Accolla's report is admissible as evidence.
[15]
In the light of the decision to accept Mr
Accolla's report as admissible, it follows that the contents thereof
are obviously of
relevance. In essence, the view expressed by Mr
Accolla in his report is that the electrical fault in the vehicle was
caused by
condensation exposure to sea water under the chassis of the
vehicle components. He opined that this could have occurred while the
vehicle was shipped from Germany to South Africa, or while it was
parked close to the harbour waiting to be loaded onto the ship.
He
added that the fact that the respondent also lives close to the beach
could be another possible cause of the vehicle's undercarriage
being
exposed to the sea salt condensation contamination.
Whether the respondent
has established circumstances justifying a departure from the general
principle that a withdrawing party
must pay the costs occasioned by
the withdrawal?
[16]
In
addressing
this
issue,
I
think
it
will
be
appropriate
to
adopt
as
a
starting
point
the provisions
of
rule 41(1),
which
read as follows:
'Withdrawal,
settlement,
discontinuance,
postponement
and
abandonment
(1)(a)
A
person
instituting
any
proceedings
may
at any
time
before the matter has been set down and
thereafter by consent of the parties or leave of the court withdraw
such proceedings, in
any of which events he shall deliver a notice of
withdrawal and may embody in such notice a consent to pay costs; and
the taxing
master shall tax such costs on the request of the other
party.
(b)
A consent to pay costs referred to in
paragraph
(a),
shall have the effect of an order of
court for such costs:
(c)
If no such consent to pay costs is
embodied in the notice of withdrawal, the other party may apply to
court on notice for an order
for costs.'
[17]
Insofar
as the costs occasioned by the withdrawal are concerned, the general
principle is that the party withdrawing the proceedings
is regarded
as an unsuccessful litigant and, as such, is liable to pay the other
party's costs of the proceedings. However, this
does not take away
the court's discretion to deprive the successful party of its
entitlement to costs if, based on its consideration
of all the facts
of the matter, it believes that it would be unfair or unjust to order
the unsuccessful
party
to pay the costs of the proceedings.
[3]
[18]
The
circumstances justifying a departure from the general principle may
vary, and need not necessarily be 'exceptional' or 'special'.
The
court must consider all the facts and exercise its discretion
judicially in such a manner that it is fair to both sides.
[4]
For instance, a litigant who acted reasonably in launching the
proceedings may be driven to withdraw such proceedings in order
to
save costs because of developments occurring after the proceedings
have already been launched but before the hearing of the
matter.
[5]
[19]
Coming to the facts of the present case,
the crucial question is whether the respondent acted reasonably in
launching the main
application and, if so,
whether the respondent's claim was time-barred under s 56(2) of the
CPA; While the second segment of this
question is not included in the
list of issues agreed
between
the
parties
for
determination
by this court,
I
am
mindful
of the
fact
that
it
is
one
of
the
issues
raised
by
the
applicant
in
its
founding
affidavit. I will accordingly address it on that basis.
[20]
At the outset, it must be borne
in
mind that the vehicle was relatively new at the time when the
electrical fault was discovered in its operation system. The vehicle
was exactly six months old at the time. According to the respondent's
evidence, which is not disputed by the
applicant, its mileage at the time was 3
302 kilometres. It was towed to the applicant's premises for
attention. On 20 December
2024 Audi Centre, Durban, issued a
conditional repair estimate of R60 341.10 to repair the alleged
damage to the vehicle.
[21]
The respondent's contention is that the
applicant declined to provide her with a copy of the assessment
report compiled by Audi
Centre Umhlanga, detailing the extent of the
damage, together with an explanation as to how such damage was
caused. Consequently,
she perceived the applicant to be evasive in
its conduct towards her and proceeded to institute legal proceedings
against the applicant
claiming a refund of the full purchase price of
the vehicle.
[22]
The applicant, on the other hand, is
blaming the respondent for declining its repeated proposals to obtain
an independent assessment
of the vehicle. Be that as it may, the fact
of the matter is that it is not clear from the evidence as to when
the water ingress
had occurred to the undercarriage of the vehicle.
Not even the experts engaged by both parties were in a position to
shed some
light in that regard, save for mere speculation that the
water ingress could have occurred during the time when the vehicle
was
imported from Germany
to
South Africa
or,
as suggested
by
the applicant
in
its answering affidavit to the main application, when it was
partially submerged in water by the respondent contrary to the user's
manual.
[23]
According to the applicant, it was finally
agreed between the parties that Audi Centre Umhlanga be approached to
provide an independent
assessment of the vehicle. On 14 February
2025, the vehicle was inspected and diagnostically tested by Audi
Centre Umhlanga, which
provided a significantly lesser quote of R11
774.23 to repair the water damage to the vehicle. However, when the
relevant assessment
report was received from Audi Centre Umhlanga the
applicant had, once again, declined the respondent's request to be
provided with
a copy thereof. The reason, according to the applicant,
was because the Regional Area Manager representing the manufacturer
had
refused the applicant permission to do so.
[24]
Therefore, taking into account the
inexplicable refusal of the applicant to provide the respondent with
copies of the two assessment
reports, together with the huge
discrepancy between the two quotations obtained from Audi Centre,
Durban, and Audi Centre Umhlanga,
respectively, my view is that the
respondent acted reasonably in launching the main application. If
anything, it was the lack of
transparency on the part of the
applicant which put her in a position where she was uncertain as to
whether the vehicle had latent
defects at the time when she took
delivery thereof.
[25]
This brings me to the question as to
whether the respondent's claim was time-barred under s 56(2) of the
CPA. In
my view,
it was not. This is for the simple reason that it is not clear from
the evidence as to when the water ingress to
the
undercarriage
of
the
vehicle
had
actually
occurred.
The
experts themselves are not certain of that
fact, which leaves alive the possibility that it could have occurred
when the vehicle
was shipped from Germany to South Africa as opined
by Mr Accolla.
[26]
The uncertainty surrounding the occurrence
of water ingress to the undercarriage of the vehicle is compounded by
the conclusion
made by Mr Furber in the applicant's answering
affidavit in the main application, which reads as follows:
'With
the evaporation of the water/dampness, and the replacement of the l
8amp fuse which restored the operation of the power steering,
the
alleged defectiveness no longer prevails. It thus follows that the
vehicle is not defective either as alleged or at all, but
was damaged
during the use thereof, necessitating repairs.’
[6]
[27]
With due respect to Mr Furber, his
conclusion is rather confusing. On the one hand he suggests that the
vehicle was damaged during
the use thereof by the respondent,
necessitating repairs. On the other hand he states that all it took
to restore the vehicle to
its normal operation was to wait long
enough for the water/dampness to evaporate and, thereafter, to simply
replace the 18amp fuse.
If the latter statement is correct, then the
only logical conclusion
is
that it was not necessary to affect any repairs to the vehicle. This
raises the question why the vehicle was diagnosed as 'damaged'
in the
first place, when the simple solution that restored it to normal
operation did not require any repairs.
[28]
Therefore, if all it took to restore the
vehicle to its normal operation
was to
allow
enough
time
for
the
water/dampness
to
evaporate
and,
thereafter, replace the 18amp fuse, the
question is why the respondent was not advised about such option,
particularly, as it is
obviously much cheaper than the cost of
repairs quoted by Audi Centre, Durban, and Audi Centre Umhlanga,
respectively. To be fair
to the respondent, it was incumbent upon the
applicant to advise her about the former option. Failure to do so, in
my view, justifies
a departure by this court from the general
principle that a withdrawing party must pay the costs occasioned by
the withdrawal.
As a customer of the applicant, it is not
unreasonable for the respondent to expect the applicant to advise her
about all her options
to restore the vehicle to its normal operation.
Whether
the respondent's counter-application ought
to
be granted
[29]
To put this issue in a proper perspective,
the respondent alleges that it is the conduct of the applicant which
caused her to approach
this court for relief in the main application.
In particular, she alleges that the applicant had initially
misrepresented the status
of the vehicle alleging that it had water
damage, and that such damage was caused by .her. It was only in the
applicant's supplementary
affidavit filed on 12 August 2025, two and
a half months after delivery of the respondent's heads of argument,
that the applicant
changed its stance and alleged that the vehicle
was not damaged. It was in the light of the applicant's shifting
stance that the
respondent decided to appoint an independent expert
to assess the vehicle,
[30]
The above explanation is somewhat different
from what the
respondent stated in her
answering affidavit to this application, where she stated that:
'My
counsel at the time had offered me an opportunity to appoint Mr Yves
Accolla to inspect the vehicle, which I accepted'.
In
any event, she contended that it was
on
the
strength
of
the
independent
expert's
report,
presumably
Mr
Accolla, that she elected to withdraw the main application. Regarding
the issue of costs, she contends that her counsel, just
like the
applicant's counsel, wanted to argue the costs of the application,
but the presiding judge was not inclined to hear the
arguments on
costs.
[31]
As indicated elsewhere in this judgment,
the general principle is that the party withdrawing the legal
proceedings is liable, as
an unsuccessful litigant, to pay the costs
occasioned by the withdrawal. It may do so by embodying in its
withdrawal notice a consent
to pay costs. If no consent to pay costs
is embodied in the notice of withdrawal, then the other party,
meaning the non-withdrawing
party, may apply to court on notice for
an order of costs. According to my interpretation of rule 41, it does
not make any•
provision for the withdrawing party to, not only
withhold its consent to pay costs, but also claim such costs from the
non-withdrawing
party.
[32]
If the court decides to exercise its
discretion to depart from the general principle that the withdrawing
party must pay the costs
of the proceedings, it can deprive the
non-withdrawing party of its entitlement to such costs. There is
nothing in rule 41which
suggests that the court may, in addition to
depriving the non-withdrawing party of its entitlement to costs, also
order the non-withdrawing
party to pay the costs of the proceedings.
This is irrespective of the circumstances which may have caused the
withdrawing party
to withdraw the proceedings.
[33]
Even if I
am
wrong in the view I express in the preceding paragraph, I do not
believe that there is any basis for this court to exercise its
discretion to award
the
costs
of
the
main
application
to
the
respondent.
This
is
because according to the evidence of the
applicant, which was not challenged by the respondent, the proposal
to appoint an independent
expert to assess the vehicle was made by
the applicant to the respondent on, at least, three separate
occasions. However, except
for the appointment of Audi Centre
Umhlanga, whose independence was disputed by the respondent, the
aforesaid proposals by the
applicant were rejected by the respondent
outright.
[34]
According to the applicant, the first
proposal to appoint an independent expert to assess the vehicle was
made by the applicant
to the respondent on 3 February 2025. The
respondent is said to have agreed to such proposal, which resulted in
the appointment
of Audi Centre Umhlanga. To be fair to the
respondent, her disgruntlement with the independence of Audi Centre
Umhlanga is understandable
and, in my view, justified, because of the
applicant's refusal to furnish her with a copy of the assessment
report compiled by
Audi Centre Umhlanga.
[35]
However, there is no reasonable explanation
provided by the respondent for her refusal to agree to the subsequent
proposals by the
applicant on 26 February 2025 and 29 May 2025,
respectively, to appoint an independent assessor to assess the
vehicle. Instead,
the respondent waited until 2 October 2025 to
appoint Mr Accolla, supposedly, after she was advised by her counsel
to do so. Bearing
in mind that she was represented by both an
attorney and counsel throughout the proceedings, the question is what
prevented her
counsel and/or attorney from advising her to that
effect all along.
[36]
It is common cause that the respondent was
in possession of the assessment report compiled by Mr Accolla on 4
October 2025, with
the matter being set down for hearing on the
opposed motion roll on 8 October 2025. It is also common cause that
the attorneys
for both parties were contacted by the registrar of the
presiding judge on 6 October 2025 enquiring whether the hearing of
the
matter was proceeding on 8 October 2025. According to the
applicant's attorneys, the respondent's attorneys responded in the
affirmative.
[37]
The confirmation by the respondent's
attorneys that the hearing of the matter was proceeding on 8 October
2025 was notwithstanding
the fact that their client was already in
receipt of Mr Acccolla's assessment report which, according to her,
primarily informed
her decision to withdraw the main application.
Therefore, taking into account the conduct of the respondent set out
in the preceding
paragraphs, I am not inclined to grant her
counter-application, nor the costs of the main application.
Whether certain portions
of the respondent's opposing affidavit are scandalous, vexatious
and/or irrelevant and ought to be struck
out in terms of rule 6(15)?
[38]
For what it is worth, I do not believe that
it is necessary or desirable for the opposing parties in any
litigation to resort to
the use of colourful and/or offensive
language in their pleadings. Such conduct does not enhance the
strength of a party's case.
Instead, it may be a source of irritation
to the presiding judge. In the present case, the respondent used a
variety of colourful
terms and phrases to describe the alleged
conduct of the applicant towards her. Some of the said terms and
phra.ses are bordering
on being outright offensive and/or
disrespectful.
[39]
While I understand the respondent's
apparent frustration with the manner in which her complaint was dealt
with by the applicant,
I must emphasize that her use of the terms and
phrases which form the subject of the applicant's complaint was
unwarranted and,
more importantly, did not serve to advance the
strength of her case in any way. The complaint raised by the
applicant against her
strong language is understandable and, in my
view, fully justified.
[40]
The terms and phrases complained of
include,
inter alia,
the
following: 'continuously twisted, manipulated and back-paddled its
narrative throughout the proceedings'; 'chooses to manipulate
the
true facts'; displayed clandestine behaviour regarding
the matter';
'lies';
'This
deliberate
lie
further
illustrates
the
first
respondent's
lack of credibility in its ongoing pattern of dishonesty throughout
these proceedings'; 'The first respondent elected
to lie, mislead and
not comply with the applicant and this Honourable Court, and; 'the
report had also and more importantly
brought all the lies and misrepresentations
by the first respondent to my attention.'
[41]
I accordingly find that all the terms and
phrases that are listed in the preceding paragraph, together with.
all the other similar
terms and phrases used in the respondent's
opposing affidavit but not listed herein, ought to be struck out in
terms of rule 6(15)
for being scandalous, vexatious and/or irrelevant
for the purposes of this application.
Order
[42]
In the result, I make the following order:
1.
The
interlocutory
application
and
the
counter-application
are dismissed.
2.
Each party shall pay its own costs of the
main application, this application, as well as the
counter-application.
ME
NKOSI
JUDGE
Appearances
For
the applicant:
Ms
D Deodath
Instructed
by:
K
Maharaj Incorporated, Umhlanga.
(For
the applicant in the main application)
Tel:
031 305
4925
E-mail:
[email protected]
;
[email protected]
;
[email protected]
Ref:
RM/mg/N300
For
the first respondent:
Mr
Prinsloo
Instructed
by:
Prinsloo
- Van Der
Linde Attorneys,
Pretoria.
(For
the first respondent
in the main application)
C/O:
Senekal
Incorporated, Umhlanga.
Tel:
031
880 5074
E-mail:
[email protected]
Ref:
Caitlin
Lee Kell/MAT468
For
the second respondent:
No
appearances
Instructed
by:
Chris
Baker and Associates, Gqeberha
(For
the second respondent in the main application)
Ref:
C
Baker/lo/G7082
E-mail:
[email protected]
C/O:
Woodhead
Bigby Incorporated, Durban.
E-mail:
[email protected]
Date
of hearing:
24
July 2026
Date
of judgment:
04
August 2026
[1]
Mooketsi
v MECfor
Health
and Social
Development
[2023]
ZANWHC
105.
[2]
Ibid
para 18.
[3]
DE
van Loggerenberg
Erasmus
Superior Court Practice
(RS
29, 2026) at D1
Rule
41-4;
Germishuys
v Douglas Besproeiingsraad
1973
(3) SA 299
(NC);
Wildlife
and
Environmental
Society
of
South Africa v MEC for Economic Affairs, Environment and Tourism,
Eastern Cape, and Others
2005
(6) SA 123
(E)
(Wildlife)
at
129E-130B and 131B.
[4]
See
Wildlife
at
130C, where the court quotes
Holmes
JA
in
Ward
v Sulzer
1973
(3) SA 701
(A) at 706G.
[5]
Wildlife
(supra) at 132J-133A
[6]
Applicant's
answering affidavit in the main application
deposed
to by Marietjie van Tonder, para 41.