Delta Motor Corporation (Pty) Ltd v Van der Merwe

• Jurisdiction: South Africa
• Judge: Mpati DP, Brand JA, Conradie JA, Cloete JA and Jones AJA
• Judgment Date: 31 May 2004
• Citation: 2004 (6) SA 185 (SCA)
• Docket Number: 183/2003
• Hearing Date: 03 May 2004
• Counsel: W R C Prinsloo SC (with him E C Labuschagne) for the appellant. H J Fabricius SC (with him I Vermaak-Hay) for the respondent.
• Court: Supreme Court of Appeal

Jones AJA:

[1] The appellant, Delta Corporation (Pty) Ltd (Delta) is a manufacturer of motor vehicles. Its range includes Isuzu KB 280 four-wheel drive double-cab light delivery vehicles, or 'bakkies', as they are commonly called. The respondent is the owner of an Isuzu H KB 280 4 x 4 double cab bakkie which he purchased new from a Delta dealer. He maintains that his vehicle developed a bent chassis as the result of a manufacturer's defect. His negotiations to have the vehicle replaced or repaired at Delta's expense have proved futile. This is because Delta considers that the condition of the vehicle is I the result of overloading, bad driving and owner abuse. The respondent is not prepared to accept this. When his efforts to change Delta's mind were unsuccessful he resorted to sending electronic mail via the internet, attaching photographs of the vehicle and explaining to the recipients his version of what had happened to his bakkie and his dissatisfaction with the way Delta had handled his J

Jones AJA

complaints. He also took to displaying his vehicle, which has an A obviously bent chassis, in public places with the words 'Swakste 4 x 4 x Ver; Grondpad Knak Onderstel' emblazoned on it in large print. Delta regards this as a smear campaign against it and its product. It complains that the e-mails and the display of the vehicle with the slogan on it amount to the publication of defamatory statements about B it. The respondent says that he is merely exercising his right of freedom of expression.

[2] Things came to a head on 13 June 2002 when Delta discovered that the respondent intended displaying his bakkie, complete with the slogans on the back and side windows of the canopy, C outside an exhibition of four-wheel drive vehicles to be held at Kyalami, Gauteng, that weekend. The exhibition was expected to attract thousands of four-by-four enthusiasts. The result was motion proceedings brought by Delta in the Pretoria High Court as a matter of urgency on the late afternoon of Friday, 14 June 2002. The Court D (Van der Westhuizen J) granted a rule nisi operating as a temporary interdict, the effect of which, in summary, was to restrain the respondent from displaying a notice with the words 'Swakste 4 x 4 x Ver; Grondpad Knak Onderstel' on his Isuzu 4 x 4 bakkie in any place to which the public has access, or from publishing directly or indirectly, whether by electronic mail or otherwise, false or defamatory statements about its products, or from displaying any notice, banner or statement which contains false or defamatory E statements about its products. The order was widely framed. One of its provisions precluded the respondent from making any statement alleging that Delta's products were defective or substandard, which would prevent him from expressing an honest opinion, even to his wife, F family and close friends.

[3] On the extended return date the Court (R D Claassen AJ) dismissed with costs an application for a final interdict in the same terms. Delta now appeals against that dismissal, with leave from this Court.

[4] A sketch of the background facts is necessary. The G respondent is a four-by-four enthusiast. This was his fourth Isuzu 4 x 4 bakkie. It was manufactured on 23 January 2000, purchased from a Delta dealer on 4 April 2000, and put to use without incident for the next 12 months. When I say dealer, I should perhaps make it clear that Delta dealers sell Delta products, but they are not H Delta agents and they do not bring the purchasers into a contractual relationship with the manufacturer. A purchaser's remedies for breach of contract are against the dealer and not the manufacturer. The respondent has not invoked his contractual remedies.

[5] On the version of the respondent, the respondent I took his wife and three small children on a camping holiday to Namibia via Botswana and the Caprivi in April 2001. He used the bakkie and towed a trailer. On 5 January 2001, on his arrival at Kunene River Lodge about 50 kilometres from Ruacana, Namibia, he discovered that the chassis of his Isuzu had bent. This was clearly visible, the bakkie portion of the vehicle J

Jones AJA

having pulled away from the cab leaving a gaping aperture. According to the respondent this must have occurred while A the bakkie was being driven along the final 30-kilometre stretch of the gravel road to Kunene River Lodge because there was nothing wrong with the bakkie before he commenced that part of the trip. This version was disputed by Delta.

[6] It is common cause that on the respondent's return to B Pretoria he told Delta's representatives what had happened. They inspected the vehicle on two occasions, once in Pretoria and once at the factory in Port Elizabeth. Delta ascertained from these examinations that the chassis of the bakkie had indeed bent, although it concluded that the cause was not a manufacturer's defect but the result of an abnormal impact to the chassis probably caused by driver C abuse at a time when it was overloaded. In the mean time, the respondent had arranged for an...