REPUBLIC
OF NAMIBIA

HELD
AT THE HIGH COURT OF NAMIBIA, MAIN DIVISION

CASE NO. I
3004/2010

IN
THE MATTER BETWEEN:

KAREL
JOHANNES MADJIET
….......................................................................................PLAINTIFF

and

JACOB
DANIEL BESTER
…...........................................................................DEFENDANT

QUORUM:
DAMASEB, JP

HEARD
ON: 29 MAY 2012; 16 JULY 2012

DELIVERED ON:
18 JULY 2012

JUDGMENT

DAMASEB, JP:
[1] This is a claim for the balance of a purchase price of a motor
vehicle. It is alleged in the particulars of claim that on 3 July
2006, and at Swakopmund, the plaintiff and the defendant entered into
an oral agreement in terms of which the plaintiff sold a Corsa 160i
Elegance, 2003 model (‘the subject vehicle’) to the
defendant for N$85,000.00. In terms of the oral agreement, it is
further alleged, the purchase price was to be paid off in monthly
installments of N$ 1 500.00, with interest at the ‘legal rate’
and that ownership over the subject vehicle would only pass to
defendant upon l payment of the full purchase price. The agreement to
sell the vehicle to the defendant is admitted, but it is denied that
the purchase price was N$85,000.00; or that there would be interest
on the balance or that ownership would only pass upon payment in full
of the purchase price.

[2] It is common
cause that the defendant had paid a total of N$30 000, 00 to the
plaintiff as at 26 March 2008. The plaintiff’s version is that
that amount is made up as follows:

(a) N$ 5000, 00
paid by the defendant to the plaintiff on 3 July 2006 in respect of
new rims and tyres that were allegedly fitted on the subject vehicle
which the plaintiff wanted to remove when he sold the car, but which
items the defendant asked the plaintiff to retain on the car in
consideration for the amount of N$ 5000.00;

(b) N$25 000, 00
was paid by the defendant towards the purchase price in installments
between 3 July 2006 and 26 March 2008.

[3] The
defendant’s version is that the N$5000, 00 was the agreed
deposit on the purchase price of N$30 000, 00 and the N$25 000, 00
was paid in installments to settle the balance remaining on the
purchase price. According to the defendant, that ended his
obligations under the oral agreement. The plaintiff sues for the
balance of N$66 000,00, which he claims is due and payable, since
reduced to N$ 60 000.

[4] The following
evidence was led by the plaintiff:

1. 
   That he and the
   defendant are and had been close acquaintances, friends and family,
   and had been so for a very long time;

   
   

2. 
   That defendant’s
   brother, one Desmond Bester, had suggested to the plaintiff to sell
   the vehicle to the defendant;

   
   

3. 
   That he , on the
   date he sold the vehicle, owned three cars; including the subject
   vehicle;

   
   

4. 
   That he had
   bought the vehicle on hire purchase with Bank Windhoek and had an
   outstanding balance in favour of Bank Windhoek in the amount of N$
   85 000,00.

   
   

5. 
   That about a
   month before the sale transaction with the defendant, he changed
   bankers, from Bank Windhoek to First national Bank (FNB) and, by
   means of a loan from the latter bank, settled his indebtedness to
   Bank Windhoek in respect of the vehicle, in the amount of N$ 85
   410,00.

   
   

6. 
   That he informed
   the defendant that he wished to sell the vehicle for N$ 85 000, 00
   which was equivalent to what he paid to Bank Windhoek to settle the
   debt on the vehicle; and that the defendant accepted the purchase
   price and there was no dispute over it.

   
   

7. 
   That the
   defendant offered to pay N$ 1 500, 00 per month towards the purchase
   price as this was the same amount that the defendant had to pay on
   his hire purchase to the bank for the car he owned at the time -
   undertaking further to make the necessary arrangements to obtain a
   loan to pay off the balance of the purchase price of N$ 85 000, 00.
   

   
   

8. 
   That the
   defendant initially only paid installments in the amount of N$
   1000,00 per month for the first ten months; and only after he
   threatened to repossess the car, did the defendant change his
   monthly installments to N$1 500,00.

   
   

9. 
   That the
   plaintiff continued to pay insurance in respect of the subject
   vehicle for the period August 2006-January 2007, while waiting for
   the defendant to get his finances in order to pay off the purchase
   price.

   
   

10. 
    That in terms of
    the agreement, the subject vehicle was to remain his property until
    the purchase price was fully paid.

    
    

11. 
    That the
    defendant informed the plaintiff on or about March 2009 at Walvisbay
    that he had sold the subject vehicle to a third party, a car dealer,
    at a price of N$ 55 000,00 and that the latter will pay a certain
    amount of money to the plaintiff towards the agreed purchase price,
    but this never happened.

    
    

[5] Under
cross-examination, the plaintiff denied that he approached the
defendant to buy the car and stated that it was the defendants’
brother who approached the plaintiff instead. When questioned why the
contract was not reduced to writing, the plaintiff testified that the
defendant came to get the car unexpected and in a hurry such that the
two did not have time to reduce the terms of the contract in writing.
Additionally, the plaintiff testified that he trusted the defendant
and did not see the need to put the contract in writing. Something
that he says he has since regretted.

[6] The following
evidence is either admitted, not denied, or challenged under cross
examination and therefore remains unchallenged:

1. 
   The plaintiff had
   3 vehicles when he entered into the agreement with the defendant;

   
   

2. 
   He owed the
   amount of N$84,410.00 to Bank Windhoek in respect of the subject
   vehicle, which he had repaid in full just before he agreed to sell
   the vehicle to the defendant;

   
   

3. 
   The subject
   vehicle was worth considerably more than the N$30,000.00 which
   defendant says was the agreed purchase price. In fact, the defendant
   had sold it for about N$55,000.00 after having driven the vehicle
   for 6-7 months. (That its value was more at the time the defendant
   took delivery of it therefore goes without saying.)

   
   

[7] The defendant
testified on his own behalf. He was adamant that the agreed purchase
price was N$30,000.00 and that if the plaintiff had told him that it
was N$85,000.00, he would not have been interested. He, in-chief,
testified that the plaintiff approached him and offered to sell the
subject vehicle to him. That he told him at the time that he had a
car in respect of which he was still indebted to the Bank; and that
he would have to sell it first before he could buy the plaintiff’s
vehicle. He testified that the plaintiff told him that he had three
cars and wished to dispose off the subject vehicle but that the
offers he was getting from motor dealers were not acceptable to him.
The defendant also testified that he did inquiries from motor dealers
and established that if he bought the subject vehicle and sold it on,
he would make a profit on it.

[8] Under
cross-examination, the defendant could not provide a plausible
explanation why the plaintiff would sell the vehicle to him at the
rather low price of N$30,000.00, considering that, (i) the plaintiff
had paid 85,410 to Bank Windhoek to liquidate the debt owing on the
vehicle; (ii) the vehicle was in good condition; (iii) there was no
apparent reason why the plaintiff would have wanted to sell it for
such a low price. The defendant not only stated that he knew of no
such reason but also stated that even he would not, given the
circumstances, have done such a thing – accepting that the
transaction relied upon by the defendant does not make much business
sense.

[9] This being a
civil case, the test I must apply is the one correctly referred to by
Mr Grobler for the plaintiff as contained in, for example, Sakusheka
v Minister of
Home Affairs¹
- where
the Court held that where two versions are mutually destructive, the
plaintiff can only succeed if he establishes on a balance of
probabilities that his version is accurate and acceptable and the
defendant’s false and liable to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test
the parties’ allegations against the general probabilities. If
the probabilities favour the plaintiff’s version, he must
succeed.

[10]
Probabilities

It is now common
cause that the subject vehicle was worth considerably more than the
N$30,000.00 which the defendant says was the purchase price. The
defendant even went on to sell the vehicle for a profit. If the
defendant’s version is accepted, the plaintiff made a deal
which would have the result that he sold the subject vehicle to the
defendant at a price which had not relationship to the financial
commitment borne by the plaintiff in respect of it. The
defendant has not as much as suggested what the reason could be for
this most altruistic and generous gesture on plaintiff's part towards
him which, in effect, amounts to a donation. In our law there is a
presumption against donation and the party wishing to rely on it must
allege it in clear terms and prove it by evidence. A donation is
however not pleaded in this case and no evidence proferred for it;
although the conduct attributed to the plaintiff amounts to that.

[11] It remains
plaintiff's undisputed evidence that whilst the subject vehicle
remained under the defendant's possession, the plaintiff continued
(for the period August 2006 – January 2007) to pay for the
insurance on the vehicle. Why would the plaintiffs do that if what
was agreed was not, on defendant's version, that the vehicle would
remain the plaintiff’s property until the purchase price was
fully paid? I must therefore accept the plaintiff's version that it
was agreed between the parties that the subject vehicle was to remain
plaintiff's property until the purchase price was fully paid.

[12] Another
significant piece of evidence that adds to the probabilities
favouring the plaintiff's version is the equally unchallenged
evidence that just before he sold the subject vehicle to the
defendant, the plaintiff, who was then banking with Bank Windhoek,
moved his portfolio to FNB. As part of that transfer, he had to
borrow from his new bank the amount equal to his indebtedness to Bank
Windhoek in respect of the subject vehicle. He did so and paid off
the subject vehicle but continued to remain indebted to FNB for the
money borrowed to pay Bank Windhoek. As I understood his evidence,
the reason he chose to sell the vehicle to the defendant for what he
alleges to be the purchase price of N$85,000.00, was to recover what
he remained indebted for in respect of the subject vehicle, having
since paid it off with an FNB loan. That accords with common sense
and is inconsistent with any suggestion that he wanted to simply get
rid of the car at a loss.

[13] It is most
improbable that the plaintiff would have sold the car to the
defendant for N$30,000.00 when, on defendant’s own version, the
dealers were prepared to offer for the vehicle in excess of the
N$30,000.00. As the defendant testified, that is the reason he agreed
to buy the vehicle. What are the probabilities that the defendant
could determine from dealers that the car was worth more than 30,000
and the plaintiff could not? The proposition only needs to be put to
be rejected.

[14] In his plea,
the defendant had admitted that it was agreed that he was to pay an
installment of N$1,500.00 per month towards the purchase price. In
his evidence in chief, however, he testified that the agreed
installment was N$800.00 but that he, of his own accord, increased
that amount to N$1 500.00. There is therefore a conflict between his
own plea and the evidence which he has not explained, either
satisfactorily or at all.

[15] On a
conspectus of the evidence I come to the conclusion that the
probabilities do not favour the defendant’s version of events
and point more to that of the plaintiff being true, i.e. that the
agreed purchase price was N$85,000.00.

[16] N$5000
paid upon delivery

Mr Grobler
conceded, correctly in my view, that the plaintiff had failed to
challenge the defendant in cross-examination that the N$5000.00 paid
on 3 July 2006 when delivery of the vehicle was taken, was not in
reduction of the purchase price but for the tires and rims which the
defendant had allegedly agreed to pay for separately from the
purchase price. In the circumstances, I accept the defendant’s
version that the N$5000.00 paid on 3 July 2006 was a deposit on the
purchase price, in preference to the plaintiff’s version that
it was not.

[17] The claim
for interest

The particulars of
claim include an averment (at para 4.2) that it was an express term
of the agreement that the defendant would pay interest on the
outstanding balance at the ‘legal rate’. The defendant
denied that such interest was agreed. The plaintiff bears the onus
in respect of that
aspect of the claim too. He, in his evidence in-chief, made no
mention of what in his understanding was interest on the ‘legal
rate’. The defendant was also not in any meaningful and serious
way challenged with the allegation and confronted with the version
that interest at the ‘legal rate’ was agreed; or that he
knew what it meant. I am satisfied, for all of the above reasons,
that the plaintiff failed to discharge the onus
that it was agreed
that the balance of the outstanding purchase price would attract
interest at ‘the legal rate’. The claim in respect of
interest at ‘the legal rate’ should therefore fail; the
plaintiff having failed to prove mora
ex re.

[18] Interest
a tempore morae

Prayer 2 to the
particulars of claim asks for ‘interest on the amount of
N$66,000.00 a tempore
morae from
1 September 2008 to date of payment.’ On a liquidated claim,
interest begins to run on the amount of defendant’s liability
from the date of mora.
It was incumbent on the plaintiff to allege and prove when the
interest claimed began to run. A tempore
morae means
‘from the moment the debtor is in default’.²
It is trite that a
debtor is in mora
once
a proper demand has been made for payment; and in that case interest
runs from the date of demand.³

[19] The plaintiff
has failed to prove when exactly he made demand for payment once the
amount became due and payable. Although he had issued summons on 6
March 2009 in the Magistrate’s Court, the same was withdrawn
and was only again issued in the High Court in September 2010. I am
unable to find any evidence on the record why the defendant could not
have assumed that the summons having been withdrawn, no further steps
were being contemplated against him. He could therefore not have been
in mora
on account of that
summons. Interest a tempore
morae can
therefore only run from the date of service of the summons issued out
of this Court in September 2010.⁴
The return of
service shows that
summons
was served on the defendant 27 September 2010.

Conclusion

[20] The plaintiff
now seeks judgment for the sum of N$ 66 000. However, he succeeded to
prove only N$55,000.00, as the balance still due on the purchase
price of N$85,000.00 – if one deducts the amount of
N$N$5,000.00 paid as deposit on 3 July 2006. Mr Grobler correctly
conceded as much. Judgment will therefore be entered in that amount,
including interest a tempore morae calculated from the 27^th
September 2010. Costs must follow the event.

[21] Accordingly,
I make the following order:

1. 
   There shall be
   judgment for the plaintiff against the defendant in the amount of
   N$55,000.00; with

   
   

2. 
   Interest a
   tempore morae calculated from 27 September 2010 to date of
   payment.

   
   

3. 
   Costs of suit.

   
   

_________________

DAMASEB,
JP

ON
BEHALF OF THE PLAINTIFF: Mr Z Grobler

Of:
Grobler & Co

ON
BEHALF OF THE DEFNDANT: Mr D Bugan

Instructed
By: PD Theron & Associates