“SPECIAL INTEREST”

CASE NO. (P) 3101/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

KALIPI NGELENGE T/A RUNDU CONSTRUCTION PLAINTIFF

and

ANTON E. VAN SCHALKWYK T/A RUNDU

WELDING & CONSTRUCTION DEFENDANT

CORAM: DAMASEB, JP

Heard: 2 February 2010

Delivered: 5 February 2010

_____________________________________________________________________________________

JUDGMENT

DAMASEB, JP: [1] The plaintiff sues the defendant for the amount of N$30 000 over the defendant’s admitted failure to return a truck belonging to the plaintiff after the expiry of the period over which the defendant hired the truck. The claim is framed in contract as will soon become apparent. Both the plaintiff and the defendant are in the construction business. They reside in Rundu. The plaintiff uses the subject truck for the purpose of transporting building material to building sites. He had employed one Hauanga Kambinda as his driver to transport his building material to the building sites.

[2] It is common cause that on 8 June 2006 the defendant hired a Mercedes Benz truck from the plaintiff at Rundu. The defendant wanted the truck to undertake a business trip from Rundu to a place called Mavinga in Angola where he had a construction business going. It was also agreed that the defendant would pay the plaintiff N$5000 for the trip. That amount was indeed paid up front. The plaintiff’s driver would drive the truck to Mavinga, and the defendant would be responsible for the driver’s food and accommodation whilst in Angola. The driver’s remuneration remained the responsibility of the plaintiff even during the defendant’s trip with the truck to Mavinga.

[3] Following the agreement, the defendant left for Mavinga on 8 June 2006 with the plaintiff’s truck driven by Kambinda and only returned the truck to the plaintiff on 28 July 2006, i.e. 7 weeks after he left Rundu. I am satisfied that the plaintiff and his only other witness (the driver Kambinda) proved on a balance of probabilities that the defendant agreed with the plaintiff to hire the truck only for the period of one week from 8 June 2006 and that the defendant prevented the truck (whilst in Angola) from returning to Rundu with the plaintiff’s driver after the expiry of one week, contrary to the agreement between the parties. The defendant elected not to testify in this matter, and the plaintiff’s evidence as to the existence of the agreement of hire of the truck for one week only, and the failure of the defendant to return the truck as agreed, remain uncontroverted. The defendant therefore retained possession of the truck in Angola for 6 weeks without the plaintiff’s consent and contrary to the agreement between the parties.

[4] On cross-examination the plaintiff was asked by Mr. Vaatz for the defendant to whom the truck belonged. The plaintiff initially said the truck belonged to the “Company Rundu Construction” and later to the “Close Corporation Rundu Construction”. Assuming this to be a concession in the defendant’s favour that the truck did not belong to the plaintiff who sued in his personal capacity, Mr. Vaatz amended the plea of the defendant to deny plaintiff’s ownership of the truck, given the plaintiff’s concession that it belonged to a CC. I granted the amendment. I do not think that the confusion created by the plaintiff’s testimony on the ownership issue assists Mr. Vaatz. I got the very distinct impression that the plaintiff is an unsophisticated man who did not appreciate the significance of the questions posed by Mr. Vaatz on that issue and he clearly did not understand the concepts of a “Company” or “Close Corporation”. The concession could only meaningfully be held against the plaintiff if the defendant had from the start denied that the truck belonged to the plaintiff, enabling the plaintiff to have his legal advisors properly direct his mind thereto and assist him appreciate the difference between him as a person and any corporate entity which might be said to have owned the truck. I am satisfied that the plaintiff established that the truck belonged to him. At all events, his particulars make clear that he was either the owner of the truck or its “bona fide possessor”. The latter would give him every right to sue in the circumstances he did.

[5] Mr. Vaatz for the defendant closed the defense case without calling any witness in support of the defendant’s case and submitted that the plaintiff’s particulars of claim are bad in law for their lack of the averments necessary to properly found a claim for contractual damages. Mr. Vaatz maintained that the plaintiff was required to allege and prove not only the breach of contract but - given that the claim is based on damages arising from the contract breach – to allege that he suffered damages arising from the breach , the nature of those damages and how they were occasioned by the contract breach attributed to the defendant.

The particulars of claim

[6] In relevant part, the particulars of claim allege that:

“The defendant wrongfully and unlawfully breached the terms of the agreement by:

8.1 Failing and neglecting to return the truck to the plaintiff after the lapse of the period agreed upon between the parties, and thereby retaining the truck for an additional period of six (6) weeks;

8.2 alternatively, failing, neglecting and refusing to allow the truck to be returned to the plaintiff after the lapse of the period agreed upon between the parties, and thereby retaining the truck for an additional period of six (6) weeks;

9. As a result of the defendant’s conduct, above mentioned in paragraph 8 hereof, the plaintiff was unable to utilize his truck, in particular for his business purposes, for a period of six (6) weeks;

10. In the premises the defendant is liable towards the plaintiff for the sum of N$ 30 000-00, which amount is calculated on a basic amount of N$ 5 000-00 which is increased for each of the aforesaid six (6) weeks’’. (Emphasis supplied)

[7] As I understand Mr. Vaatz, his attack is two –pronged: First he argues that the plaintiff fails to allege (and in fact failed to prove) what “business” of his suffered damages as a result of the breach and the nature and extent of such damage. He specifically referred to the fact that on cross-examination the plaintiff conceded that he did not normally use the truck for hire to others for consideration and in fact had not contemplated hiring it out to anyone if it were at his disposal; that he did not fail to meet any contractual obligations during that period as result of the absence of the truck, and so on. (I pause to observe that the plaintiff did not allege in the particulars of claim that it was within the contemplation of the parties that if the defendant failed to deliver the truck after a week of renting it, the defendant would be liable to the plaintiff in the amount of N$5000 for every week that the truck was not delivered.)

[8] The underlying premise on which the particulars of breach and damage are drafted in the present case – i.e. that just because a contract was breached damages must be presumed to have flowed- is erroneous. As was observed by Corbett JA in Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687D-688A:

“To ensure that undue hardship is not imposed on the defaulting party … the defaulting party’s liability is limited in terms of broad principles of causation and remoteness, to (a) those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach, and (b) those damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable unless, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from its breach (Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) at 550).)

…

The damages described in limb (a) … are often labeled “general” or “intrinsic” damages, while those described in limb (b) … are called “special” or “extrinsic” damages.”

[9] The plaintiff testified on cross-examination that his agreement with the defendant involved the use of the truck for only one week and that it was not intended that the defendant would undertake any further trips with the truck after the first one. His evidence that he had not intended to hire out the truck after it had returned and that he had not lost out on income –generating opportunities because of the truck’s late delivery, negates the existence of any extrinsic damages. The closest the plaintiff came to making the case for such damages was when he testified that because the truck was late he had to use other (much smaller) vehicles to transport building material to building sites. He also testified that he at other times hired other vehicles to take building material to building sites. None of these special damages had been either alleged or proved. Mr. Vaatz’s first argument therefore has merit.

[10] Mr. Kamanja’s rearguard argument was that the present claim is analogous to the situation where a lessee of a building “holds over” after the expiry of a lease of rented premises and would be held liable to the lessor pro rata the length of such unauthorized holding over. He argued that it cannot lie in the mouth of the person holding over to argue that the lessor had not suffered damage from the holding over.

[11] It must be correct that a lessor would be entitled to damages against a lessee who fails to return the thing let at the expiry of the contracted period. It does not follow though, as suggested by Mr. Kamanja that, without more, the amount of damages would be the same as the original agreed rental. I agree with the following observation in Amler’s Precedents of Pleadings, 6^th edn. P220:

“The plaintiff must allege and prove the market rental value of the premises for the period of the unlawful occupation and must show, at least prima facie, that the premises were, in fact, lettable. Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd 1985 (1) SA 248 (W).”

On the score of holding over too, I am afraid the plaintiff’s claim fails. Neither his pleadings nor his evidence meet the requirements for holding over.

[12] True, the effect of holding over may lead to the conclusion of a new agreement between the parties on some or all of the terms of the old agreement. This, as Amler’s supra notes, is called “tacit relocation of the agreement” comparable to the “tacit relocation of a lease”. A tacit relocation of an agreement is said to arise where the parties after the termination of the initial agreement conduct themselves in a manner that gives rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before. A tacit relocation of an agreement is a new agreement and not the continuation of the old one: Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC and Others 2002 (1) SA 822 at 825D-E. An essential prerequisite of a relocation of a lease is that it must be unequivocally inferred from the conduct of the parties that a renewed or new lease had come into effect. The conduct of the parties (especially of the plaintiff) in the present case points in the opposite direction: The plaintiff testified that he demanded the truck back from the plaintiff on many occasions and did not intend to continue renting the truck to him.

“The mere fact that a lessee remains in occupation of the leased premises after the expiration of the term of the lease does not, of course, mean that there is a tacit renewal of the lease. Similarly, the belief, or impression, of one of the parties to the lease that there has been a tacit relocation is not sufficient to bring a new lease into existence. There must be compliance with the requirements for an implied or tacit agreement’’: Nedcor Bank Ltd v Withinsawproperties (Pty) Ltd 2002 (6) SA 236 at 248J/ 249A. (Emphasis supplied)

[13] The plaintiff alleges no such tacit agreement between the parties. In fact his evidence left me with the impression that beyond the expiry of the one week, he had no further agreement with the defendant. Regrettably, the plaintiff pleads no case of tacit relocation of the initial agreement, and his evidence before me does not meet the requirements for a tacit relocation of contract. The plaintiff’s particulars of claim and his evidence therefore also fail the test for the tacit relocation of the original agreement of lease of the truck to the defendant.

[14] It must be clear from all that I have said that the particulars of claim in this case were very poorly drafted. If a modicum of skill was applied in their preparation, the plaintiff stood a very good chance of success. That raises the question why the defendant’s legal practitioners did not except early on to the particulars as they clearly stood no chance of success in the form they proceeded to trial. It is trite that a party must raise at the earliest opportunity possible any objection that might lead to the early finalization of the matter and not, as was done here, wait until the last minute to raise such an issue. Such conduct can result in a party being denied costs. See in this regard: Channel Life Namibia Ltd v Finance in Education (Pty) Ltd 2004 NR 125at 132A-J/133A-F.

[15] In the exercise of my discretion, I am satisfied that the defendant’s failure to have excepted to the clearly excipiable particulars of claim at an early stage, is deserving of censure by denying the defendant costs although successful in resisting the plaintiff’s case.

[16] Accordingly I make the following order:

1. The plaintiff’s claim against the defendant is dismissed.

2. There is no order made as to costs against the plaintiff.

____________________

DAMASEB, JP

ON BEHALF OF THE PLAINTIFF: Mr. AEJ Kamanja

Instructed By: SISA NAMANDJE & CO

ON BEHALF OF THE DEFENDANT: Mr. A Vaatz

Instructed By: ANDREAS VAATZ & PARTNERS