NOT
REPORTABLE
REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF
NAMIBIA
JUDGMENT
Case
no: I 1227/2008
In
the matter between
MARTRAN
(PTY) LTD
........................................................................................PLAINTIFF
and
GN
OOSTHUIZEN
...........................................................................................DEFENDANT
Neutral
citation: Martran (Pty) Ltd v Oosthuizen (I 1227/2008) [2013] NAHCMD
12 (23 January 2013)
Coram:
Smuts, J
Heard
on: 28-30 May 2012, 17-18 September 2012, 11 October 2012
Delivered
on: 23 January 2013
Flynote: Claims for breach of
agreement to repair tipper trailer. Merits and quantum separated.
Breaches established a balance of probabilities.
ORDER
The plaintiff has accordingly
established that the defendant is liable to it in respect of both
claims. The plaintiff is entitled to its legal costs in doing so.
These costs include the costs of one instructed and one instructing
counsel.
JUDGMENT
SMUTS, J
[1] This action comprises two claims
against the defendant for the sums of N$148 491.00 and N$22 400
respectively. The claims are essentially for damages which arise from
an alleged breach of contract between the parties in terms of which
the defendant was to repair a Henred Fruehaus semi tipper trailer for
the plaintiff.
[2] The trial was heard in two phases.
Evidence was led on 28-30 May 2012 and the matter was postponed for
further evidence on 17-18 September 2012. After the conclusion of
evidence on 18 September 2012, counsel presented argument on 11
October 2012 and judgment was reserved. During counsel’s
submissions there were differences concerning the evidence given in
the trial. I accordingly requested that the evidence be transcribed
after the conclusion of argument. That transcript was however only
completed in early December 2012.
The pleadings
[3] It is alleged in the particulars
of claim that the plaintiff, represented by Mr JJ De Klerk, and the
defendant entered into an agreement in terms of which the defendant
would repair the plaintiff’s tipper trailer (“the
trailer”). It was an oral agreement. Most of the terms were
common cause between the parties. These included that the repair
should be completed within a reasonable time and effected in a
workmanlike and efficient manner to the satisfaction of the plaintiff
and that the plaintiff would pay the ordinary or reasonable costs of
repairs for the work. The parties further agreed that the defendant
and his employees had a duty to exercise care and skill and take all
reasonable steps to ensure that the trailer would be safeguarded from
loss or damage and had a duty to ensure that it would not be damaged
and that no one would be entitled to use the trailer whilst it was
being repaired and that the defendant and all his employees would not
act negligently whilst the trailer was in the custody of the
defendant. These terms are common cause.
[4] The extent of the repairs was an
aspect in dispute between the parties. The plaintiff contended that
the repairs were to remove rust from the load box or replace rusty
panels on the load box, repaint the trailer white and repair or
replace the handle of the load box flap. The defendant however
alleged that his mandate was to rebuild the trailer into a roadworthy
condition for a prospective sale.
[5] It was further common cause on the
pleadings that the defendant removed the trailer from the plaintiff’s
premises in November 2005 in order to effect these repairs. It was
also common cause that the defendant returned the trailer to the
plaintiff during November 2006. What occurred between those dates was
both on the pleadings and in evidence in dispute between the parties.
[6] The plaintiff alleged in the
particulars of claim that the trailer was damaged during April 2006
whilst in the custody and under the care of the defendant and that
the defendant had failed to complete the repairs to the trailer and
make good the resultant damage. The plaintiff further alleged that
the defendant intentionally or negligently used the trailer for
personal gain or allowed others to do so without the knowledge and
consent of the plaintiff. The plaintiff further alleged that the
defendant and his employees failed to exercise care and failed to
take all reasonable steps to ensure that the trailer was safeguarded
from any loss or damage whilst in the defendant’s custody. The
plaintiff further alleged that the trailer was damaged as a
consequence and cancelled and agreement and demanded its return. Its
first claim is for the reasonable costs of the damage sustained by
trailer amounting to N$148, 491- 00.
[7] The defendant denied the breaches
contended for and pleaded that the trailer’s main rear swivel
pin broke and the trailer fell on its side during testing. The
defendant pleaded that he had repaired the damage to the side of the
trailer as well as to the chassis and replaced pins and bushes. The
defendant further contended that it was a term of the agreement that
the defendant would test the trailer. He further pleaded that after
completing the repairs, the parties would attempt to sell the trailer
and deduct the costs of the repair from the purchase price and split
the difference. If no acceptable offer was made for the trailer, the
defendant pleaded that he would be entitled to purchase it from the
plaintiff for N$45 000 including the tyres which had accompanied the
trailer.
[8] The plaintiff’s second claim
was in respect of the removal of eight tyres by the defendant when
the trailer was removed for the purpose of the repairs in November
2005. The plaintiff claimed N$22 400 in respect of the reasonable
replacement cost of those tyres. The defendant admitted that eight
tyres of the plaintiff were utilised for the removal of the trailer
from the plaintiff’s premises. The defendant further pleaded
that the trailer was returned with those eight tyres and denied the
liability in that sum to the plaintiff.
[9] In the course of the pre-trial
proceedings, the parties agreed that the merits of the matter
(liability) be separated from the question of quantum of the claims.
The evidence
[10] The parties narrowed the issues
in dispute in the course of case management. The plaintiff’s
ownership of the trailer and its capacity were admitted. But certain
of the terms of the agreement (outlined above) and what transpired
after the collection of the trailer until its return remained in
issue.
[11] The plaintiff called five
witnesses. Its principal and sole shareholder, Mr JJ De Klerk gave
evidence for the plaintiff together with two of its employees, Ms
Jonker and Kahuika. Two further witnesses gave evidence under
subpoena. They were Mr R. Stramis and Mr C.M.C. Miranda. The
defendant testified and called two other witnesses namely an employee
Mr Mukeshe and an erstwhile business partner of the defendant, Mr
Johan Silver.
[12] In his evidence, Mr De Klerk
testified as to the terms of the agreement as pleaded in the
particulars of claim. He testified that he did not anticipate that
the repairs would take any longer than two months and that the
trailer would then have been returned. He also testified that the
defendant was indebted to the plaintiff pursuant to their ongoing
contractual relationship between the parties with regard to the
repairing of items by the defendant and the supplying of parts and
like by the plaintiff to the defendant. Mr De Klerk testified that
the plaintiff would have given credit to the defendant for the
reasonable cost of repair which would then be set off against the
money owed by the defendant to the plaintiff. He testified that he
had not consented to the removal of the eight tyres, forming the
subject matter of the second claim. These had been removed from buses
belonging to the plaintiff also parked on the plot Bergheim where the
trailer was located prior to its removal.
[13] The plaintiff further testified
that the defendant had stated that the trailer would be removed and
taken to the Okorusu mine where the repairs would be effected on
behalf of the defendant by a person who owed the defendant a favour.
The plaintiff agreed to this arrangement. Mr De Klerk stated that the
trailer would be returned once the repairs were completed. Mr De
Klerk estimated that the cost of repairs would be in region of N$10
000. He denied there was any arrangement or agreement between the
parties to sell the trailer or that the defendant had any option to
buy it at the price contended for in the plea or at all. He also
denied that he had given permission for the use of the trailer.
[14] Mr De Klerk further testified
that on a business trip to the Okorusu Mine in May 2006 he had come
across the trailer in a damaged condition in the workshop of the mine
and was informed by a Mr Ronald Stramis that the latter was attending
to repair the trailer. Mr De Klerk said that the trailer was
seriously damaged at the time with the chassis bent and the hydrolic
hoist was missing from the trailer. He said that the trailer had at
that point been painted white as had been agreed between the parties.
He said that he then proceeded to make a number of enquiries
concerning the use of the trailer and established from a Mr Miranda
senior and Mr Miranda junior, the principals of Windhoek Transport
Services CC that the trailer had been used to transport manganese at
a mine at Otjizondu from February to April 2006. He also established
that this had been done for reward by the defendant.
[15] Mr De Klerk gave evidence that he
had made a number of attempts to contact the defendant during the
period following February 2006 and was eventually able to arrange a
meeting with him during October 2006 when he demanded the return of
the trailer. It was then returned in early November 2006 to the
plaintiff.
[16] Mr De Klerk inspected the trailer
upon its return and found that the chassis of the trailer was still
bent, the hydrolic hoist was still missing, the air brake booster was
missing and all brake pipes had been cut. He further found that the
trailer was fitted with only four tyres instead of eight and that the
four tyres in question were in a poor state of repair with no tread
remaining on them. The plaintiff subsequently instituted the action.
Mr De Klerk’s evidence was for the large part unshaken during
cross-examination.
[17] Mr Jonker gave evidence
concerning the agreement between the parties. He is an employee of
the plaintiff and testified that he was present during November 2005
at the plaintiff’s workshop when Mr De Klerk and the defendant
reached the agreement for the repairs to the trailer. For the large
part, he confirmed the evidence of Mr De Klerk concerning the extent
of the repairs and the condition of the trailer. He also testified as
to the condition of the trailer upon its return in November 2006. He
said that he inspected it and also found that the chassis was bent
and that the trailer only had four tyres which were unfit for use. He
further testified that the hydrolic hoist was missing and that the
trailer’s airbrake booster was missing and that all brake pipes
were cut.
[18] Mr Kahuika was the plaintiff’s
site foreman at Plot Bergheim where the trailer was stored. His
evidence was confined to the condition of the trailer when it was
initially removed by the defendant and concerning the eight tyres
which were removed at the time from other vehicles of the plaintiff
located at that site.
[19] Mr Stramis gave evidence under
subpoena. He was employed at the Okorusu Mine as a boiler maker
during 2005 and 2006. Mr Johan Silver was his supervisor at the time.
Mr Stramis testified that during about June 2006 he was approached by
Mr Silver to repair the trailer. He said that Mr Silver had informed
him that the trailer had fallen over and was broken and that he
should repair it. He testified that the tailgate and the boom were
broken, an axle was broken and that the chassis was damaged as well
as the hydrolic hoist. He further testified that when he was
instructed to effect these repairs in about June 2006, it was the
first time that he had seen the trailer at the Okorusu Mine. He was
requested to effect these repairs by Mr Silver and did so at the
Okorusu Mine. But Mr Silver had not paid him for these repairs. He
further testified that the trailer was removed over a weekend prior
to the completion of the repairs and that he had not been present
when it was removed. The material components of his testimony were
not placed in issue.
[20] The plaintiff also called Mr C.
M. C Miranda. He also gave evidence under subpoena. He testified that
he is the operational manager of Windhoek Transport Services cc and
also 50% owner of that concern. He gave evidence that there was an
agreement between his concern and Red Pepper Enterprises in which the
defendant was a principal. He had been approached by the defendant in
that capacity relating to work which Windhoek Transport Services CC
was performing for a manganese mine at Otjizondu. The defendant had
approached him and offered to act as a subcontractor for the
transportation of manganese from the mine and stated that he would do
so with a blue henred trailer and would do so in conjunction with Mr
Johan Silver who was the owner of the truck which would pull that
trailer. This was then agreed to.
[21] Mr Miranda further testified
that, pursuant to this agreement which had run from February 2006
until April 2006, various payments have been made by Windhoek
Transport Services CC to Red Pepper Enterprises for services thus
rendered. He testified that the relationship between the parties was
terminated on 28 April 2006 when the blue trailer utilised by Red
Pepper Enterprises was damaged. He was not present when the damage
had occurred but stated that an accident had occurred at the mine
with the trailer falling over whilst it was tipping. The trailer
could then no longer transport manganese and the contractual
relationship between Windhoek Transport CC and Red Pepper Enterprises
was then terminated as a consequence. He also testified that he
approached the defendant before terminating the agreement to enquire
whether there was any other trailer available to take the place of
the damaged trailer. He testified that the defendant had answered in
the negative. Once this was established, the contract was terminated.
[22] There were two aspects to his
evidence which were materially put in issue. It was firstly put to
him that there was a second trailer working on the site, also blue in
colour, on behalf of Red Pepper Enterprises. He denied knowledge of
that. It was also put to him that the trailer in question was damaged
in November or December 2005 and not during 2006. Mr Miranda’s
response to this was emphatic. He stated that the damage had occurred
in April 2006 and was the precipitating factor for the cancellation
of the agreement. He further testified that the defendant and Mr
Silver had approached him at the mine in 2006 and not in 2005. He
further stated Red Pepper Enterprises started work only in February
2006 and not in 2005 after this had been expressly put to him. This
also accorded with his evidence on the payments made to Red Pepper
Enterprises.
[23] He further testified as to
payments which had been made by Windhoek Transport Services CC in
February, March and April to Red Pepper Enterprises. These amounted
to some N$25 000. Those payments were not placed in issue at all.
[24] The defendant stated, when asked
about to the agreement with the plaintiff, that he was under the
impression that he would be able to buy the trailer if he and the
plaintiff had not sold it. He did not state that this had been a term
of the agreement between the parties, as it had been contended in his
plea. He later in re-examination stated that there was however an
agreement to that effect. He had also in cross-examination testified
that this had been discussed on a few occasions between himself and
Mr De Klerk on behalf of the plaintiff but did not refer to it having
been a term of the agreement until re-examination. He confirmed that
the trailer was removed in November/December 2005. He stated that the
repairs would be effected at the Okorusu Mine and that his business
associate, Mr Silver, would attend to those repairs.
[25] The defendant’s evidence
was further that the trailer together with the hydrolic hoist would
need to be tested as a tipper. For this reason he had caused the
trailer to be taken to the Purity Manganese mine near the Otjizondu
for testing. He testified that it was during the testing of the
trailer during November/December 2005 that it had fallen and become
damaged. He testified that the evidence of other witnesses to the
contrary was incorrect and was adamant that the damage had occurred
in December 2005.
[26] The defendant confirmed that
there had been an ongoing relationship between the plaintiff and
himself in terms of which he had repaired other equipment for the
plaintiff. He confirmed that the plaintiff, Mr De Klerk had demanded
the return of the trailer and that he had returned it in November
2006. When returning the trailer, he said that he had provided the
plaintiff with invoices for some of the other repair work which he
had previously attended to. This had not however formed the subject
matter of a counter claim as they went far back in time. He did not
however provide an invoice in respect of the repairs to the trailer.
Nor was there any counterclaim by the defendant in respect of any
repairs to the trailer.
[27] The defendant confirmed that the
hydrolic hoist was not returned to the plaintiff when the trailer was
returned. He said that it been taken for repair. He disputed that the
trailer was in the damaged state on return as testified by Mr De
Klerk and Mr Jonker. The defendant also confirmed that he had a
business relationship with Mr Silver and conducted Red Pepper
Enterprises with him until Mr Silver’s appointment as mine
manager at Purity Manganese in the second half of 2006.
[28] The defendant’s employee,
Mr Mukeshe gave evidence concerning the collection of the trailer at
the plaintiff’s premises during 2005. He confirmed that eight
of the plaintiff’s tyres had been utilised in the removal of
the trailer. He also testified that there had been rain water inside
the load box of the trailer – presumably from recent rains -
and that the trailer had sunk somewhat into the ground.
[29] The defendant also called Mr
Silver to give evidence. As had also occurred with other witnesses
who had not been subpoenaed, Mr Silva had deposed to an affidavit
which comprised his evidence-in-chief. The affidavit was finalised
shortly before the continuation of the trial in September and had
been deposed on 11 September 2012. His evidence was given a week
later. He confirmed that he was employed at Okorusu Mine and had
agreed to attend the repairs on the trailer for the defendant. He
also confirmed that he was a business associate with the defendant in
Red Pepper Enterprises and that he had in May 2006 been appointed as
the mine manager at Purity Manganese at Otjizondu and had later been
appointed as mine manager of a different mine nearby known as the
Otjizondu Mine.
[30] Mr Silver’s affidavit being
his evidence in chief however conflicted with his answers in
cross-examination. In his affidavit, he stated that the damage to the
trailer at the Purity Manganese mine had occurred in April 2006.
During cross-examination he stated that this had however happened
during November/December 2005. When asked for an explanation for this
deviation, he stated that he could not recall the specific dates but
had changed his mind on this issue during an adjournment on the
preceding day upon which the defendant had completed his
cross-examination. He stated that he had proceeded to a nearby cafe
during the adjournment in the company of defendant and his other
witness and that it was after that occasion that he had decided to
change his version. Under cross-examination, he stated that this
aspect had not been discussed at the time. Quite how it resulted in a
change to his collection was not explained.
Analysis of evidence
[31] The evidence of Mr De Klerk on
behalf of the plaintiff was for the large part unchallenged and not
disturbed in cross-examination. When he was cross-examined as to the
differences between the parties over the terms of the agreement, his
testimony was in accordance with what had been pleaded and he
consistently denied the defendant’s version to the contrary
concerning an option to purchase the trailer upon completion of the
repairs. His evidence concerning his interaction with Mr Stramis as
well as Mr Miranda was confirmed by both of those independent
witnesses. He also created a favourable impression. His evidence
concerning the agreement as to the repair of the trailer would also
have been consistent with the ongoing relationship between the
parties which was to a large degree confirmed by the defendant,
namely that there had been set off in the past. The agreement was
also confirmed by Mr Jonker whose evidence was also unshaken by
cross-examination.
[32] The defendant’s evidence
was at times at variance with his pleadings concerning the agreement.
During cross-examination he referred to the “option to
purchase” merely as an impression he had been under and not as
a term or condition of contract. He had further stated that the issue
had merely been discussed between himself and the plaintiff’s
Mr De Klerk, although in re-examination he had indicated that the
issue had been agreed upon. I also found that the defendant was an
unsatisfactory witness. His answers were at times evasive.
[33] Furthermore, I found that the
defendant’s evidence on the critical issue as to when the
damage to the trailer had occurred, which he inevitably stated had
been in November/December 2005, was not credible. This evidence of
his was clearly contrary to the evidence of Mr Stramis who had said
that the trailer had been damaged and brought to Okorusu in about
June 2006. This was not contested. The defendant’s evidence
also conflicted with that of Mr Miranda as to the trailer having been
damaged on 28 April 2006. This had been stated with reference to
contemporaneous records of Windhoek Transport Services CC. Both Mr
Stramis and Mr Miranda had no reason to give false testimony on this
aspect. I found them both to be satisfactory witnesses. Furthermore,
the evidence of Mr Stramis was hardly challenged in
cross-examination.
[34] When Mr Miranda was challenged on
this aspect, he had unequivocally confirmed his version and made it
clear that it was consistent with the contemporaneous records of
Windhoek Transport Services CC, including the payments made to the
defendant’s business, Red Pepper Enterprises. These payments –
made between February and April – were not disputed and
together with the termination of the agreement on 28 April 2006 were
all consistent with the use of the trailer over that period and its
damage having occurred on or about 26 April 2006 and not December
2005. Furthermore, Mr Silver had in his affidavit deposed to the
damage having occurred in April 2006, at a time when the operations
were conducted under his supervision. His affidavit was deposed to on
11 September 2012 but after completion of the defendant’s
evidence, his business associate, he inexplicably changed his version
and said that the damage had occurred in November/December 2005. He
only did so under cross-examination. He did not point out the change
at the outset and instead confirmed his affidavit without
qualification when giving his evidence in chief.
[35] The defendant and Mr Silver were
at the critical and relevant time business associates and would
appear to have operated Red Pepper Enterprises in partnership even
though this aspect was surprisingly not canvassed in detail in
cross-examination. But what did emerge was a business relationship
between them and that their interests on the issue would have
co-incided.
[36] On the other hand, the evidence
of the independent witnesses of Mr Stramis and Mr Miranda to the
contrary is in my view to be accepted. Their evidence would also be
consistent with the plaintiff having difficulty in getting hold of
the defendant and with the latter not apprising the plaintiff
concerning the damage. (This aspect was also surprisingly not pursued
in cross-examination, despite the term of the agreement that the
defendant would take reasonable care to ensure damage to the trailer
would not occur whilst under his custody.) It was left to the
plaintiff’s Mr De Klerk to establish this by chance.
[37] The defendant did not deny that
Red Pepper Enterprises was engaged as a subcontractor for Windhoek
Transporting Services CC and that he had received payments for the
transportation of manganese at the Purity Manganese mine. He did not
even deny that the trailer had been used at that mine but said that
this had occurred in the course of testing in November/December 2005.
He also did not challenge the terms of his conversations with Mr
Miranda.
[38] I reject the defendant’s
evidence where it conflicts with that of Mr Miranda and the other
plaintiff’s witnesses. Mr Miranda’s evidence was in most
respects was not challenged and was consistent with the payment
records which in turn were expressly not challenged of Windhoek
Transport Services CC. Mr Stramis’ evidence that he saw the
damaged trailer for the first time in about June 2006 was entirely
unchallenged. This in the context of his evidence as having been
employed at the Okorusu Mine in both 2005 and 2006.
[39] I further take into account that
the evidence of Mr Miranda as to the cancellation of the agreement
with Red Pepper Enterprises and the basis for that cancellation was
also largely unchallenged.
[40] Mr Silver said that the trailer
was used for what he termed a few loads. He was vague and evasive as
to the extent of that use. He was also vague and evasive when asked
if the trailer’s loads were weighed on the weigh bridge (for
the purpose of determining payment for transportation of the ore). He
was also an unsatisfactory witness. He deviated from his version on
the crucial question as to when the damage had occurred after he
realised it was at variance with that of his business associate, the
defendant. On all the evidence and probabilities, I find that both Mr
Silver and the defendant were untruthful on this aspect for the self
serving reason to deny that the trailer had been used for gain when
it was supposed to be repaired. This would have been in breach of the
agreement with the plaintiff. It would thus follow that this breach
was in my view established on a balance of probabilities.
[41] But it is in any event clear to
me that another breach of the agreement was also established on a
balance of probabilities. I accept that the trailer was returned in
damaged state – with a bent chassis and its air brake booster
missing, brake pipes cut and the hydrolic hoist missing. As I have
already said, I reject the defendant’s evidence where it is at
variance with the plaintiff’s witnesses. It is common cause
that the parties agreed that the defendant had a duty to exercise
care and skill with the repairs and take all reasonable steps to
ensure the trailer was safe guarded from damage. It was returned in a
damaged state without its hydrolic hoist. The defendant failed to
provide an account for the damage and the missing hoist which
excluded a breach of this term of the agreement. The plaintiff had in
my view the duty to do so once such damage was established. In
failing to do so, it would follow that the plaintiff has established
a breach of this term as well on a balance of probabilities.
[42] The plaintiff also established
that the eight tyres were removed from other vehicles without the
plaintiff’s consent and that the trailer was returned with only
four tyres which were unfit for use. It would follow that the second
claim is also established.
[43] As agreed between the parties,
the question of quantum is to stand over.
[44] The plaintiff has accordingly
established that the defendant is liable to it in respect of both
claims. The plaintiff is entitled to its legal costs in doing so.
These costs include the costs of one instructed and one instructing
counsel.
______________
DF SMUTS
Judge
APPEARANCE
PLAINTIFF:
C. J. Van Zyl
Instructed
by Delport Attorneys
DEFENDANT:
A.J.B. Small
Instructed
by Dr Weder, Kauta & Hoveka Inc.
Martran (Pty) Ltd v Oosthuizen (I 1227/2008) [2013] NAHCMD 12 (23 January 2013);