CASE NO.: I 2377/2007

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

TRAILER SPARES AND REPAIRS CC
…...............................................PLAINTIFF

and

NAMIB CONTRACT HAULAGE
….......................................................DEFENDANT

CORUM: MILLER, AJ

Heard on: 01 March 2012

Delivered on: 01 March 2012

JUDGMENT (Ex-Temporae):

MILLER, AJ: [1]
In this matter the Plaintiff by way of action seeks payment from the
defendant, in the amount of six hundred and twenty eight thousand
five hundred Namibian Dollars and sixty five cents (N$628 500.65)
together with interest on that amount, from the date of summons to
the date of payment. The defendant in its pleadings denies that it is
liable to pay that amount to the plaintiff.

[2] The plaintiff’s case arises
from an agreement which was concluded between the parties some time
ago and in terms whereof the plaintiff undertook to effect certain
repairs to the defendant’s fleet of busses and vehicles.

[3] According to Mr Blaauw, who
negotiated the agreement on the part of the plaintiff and it is
supported by the evidence of Mr. van Standen who was the owner of the
plaintiff’s business, certain rates were agreed upon on an
hourly basis and there was provision made in the agreement for
interest, dates for payment, extension for dates of payment and for
standing fees in respect of the vehicles.

[4] The issues to be decided are
entirely issues of facts and are to be found solely in the evidence
tendered on behalf of the plaintiff since the defendant closed its
case without adducing any evidence.

[5] In the main, the attitude adopted
by the defendant appears to be that it itself is uncertain of the
amounts, if any, that is owed to the plaintiff and during the
cross-examination of the plaintiff’s witnesses, little more was
done other than sniping at the factual allegations made by the
plaintiff’s witnesses in order to submit at the end of the day
that the plaintiff had not succeeded in establishing the amount owed
to it on a balance of probabilities.

[6] By and large, the factual
allegations are to be found in the evidence of Mr. van Standen and to
some extent these allegations are, in some respect or another,
supported and corroborated by the other witnesses called.

[7] By way of summary, Mr. van Standen
confirms the existence of the agreement and further alleges that he
had agreed to repair the vehicles of the defendant at an hourly rate
of Two hundred Namibian Dollars (N$200-00) per hour and that in
respect of standing fees, a fee of Fourty-five Namibian Dollars
(N$45-00) per day would be levied. As far as towing and call-out
charges were concerned, he testifies that these were agreed at Twelve
Namibian Dollars and fifty cents (N$12-50) per kilometre for towing
and Four Namibian Dollars fifty cents (N$ 4-50) per hour in respect
of call-outs to attend to vehicles which had broken down along the
road side.

[8] He testifies that in respect of
each particular piece of work, a job card was opened and adjusted
where necessary. A quotation was then prepared and provided to the
defendant and upon the approval of the quotation by the defendant,
the work would proceed. Once the work had been completed, so he
testifies, the job card would be given to somebody in his office who
would then print out an invoice in respect of each particular piece
of work. These invoices were then delivered on a monthly basis to the
defendant, either at its office in Oshakati or they would be posted
to the defendant’s address.

[9] His testimony is further to the
effect that once payment was not forthcoming, he instructed his legal
practitioners, to institute action against the defendant and provided
them with the originals of all the documents upon which the claim was
then based. It appears common cause between the parties that for some
reason or another, the instruction was not immediately attended to by
the plaintiff’s legal practitioners and to add to the
plaintiff’s woes, the supporting documents all became
irretrievably lost.

[10] The plaintiff’s evidence is
further to the effect that upon discovering that the original
documents had been lost, he was able to retrieve copies thereof which
had been stored on a computer at his office. The invoices upon which
he relies in support of his claim were produced and accepted in
evidence.

[11] Mr. Mostert who appears for the
defendant in the cross-examination of, during the course of the
cross-examination of Mr Blaauw, pointed to the fact that there were
in existence amongst the discovered documents, other documents which
do not correspond with the documents the plaintiff seeks to rely
upon. Mr. Blaauw was called upon to explain the discrepancies if he
could and he was able to do so.

[12] In each instance where a
discrepancy was pointed out to him, Mr Blaauw was able to provide an
explanation in the manner which strikes me as satisfactory. As far as
Mr Blaauw is concerned, he appeared to me to be a reliable and honest
witness. His testimony was frank and probable. Added to that is the
fact there is nothing to gainsay his evidence. To that I add the fact
that material parts of his evidence was corroborated by other
witnesses.

[13] It will follow from this synopsis
that practically the only issue in dispute is whether the invoices
produced by Mr. Blaauw and upon which he relies for his claim are
reliable and can be accepted as support of the fact that the work
reflected therein and the standing charges and so forth, had in fact
been done. I have no reason not to accept the evidence of Mr. Blaauw
in all its material respects.

[14] In as much as the defendant
attempted to cast doubt on the veracity and reliability of the
evidence of Mr Blaauw, such efforts to my mind, fail completely.

[15] It follows in the circumstances
that the plaintiff is entitled to judgment in his favour.

[16] I therefore grant judgment in
favour of the plaintiff in the amount of six hundred and twenty eight
thousand five hundred Namibian Dollars and sixty five cents (N$628
500-65) together with interest thereon at the rate of 20% per annum,
such interest to run from the date of summons to date of final
payment.

[17 The defendant is ordered to pay
the plaintiff’s costs. Such costs will include the costs of one
instructing and one instructed counsel.

_____________

MILLER, AJ

ON
BEHALF OF THE PLAINTIFF Mr. van vuuren

Instructed by: Kirsten &
Company

ON BEHALF OF THE DEFENDANT
Mr. Mostert

Instructed by: Krüger, van
Vuuren, & Co.