Four Wheel Drive Accessory Distribution CC v Rattan NO

• Jurisdiction: South Africa
• Judge: D Pillay J
• Judgment Date: 04 July 2017
• Citation: 2018 (3) SA 204 (KZD)
• Docket Number: 6916/13
• Hearing Date: 04 July 2017
• Counsel: C Smart for the plaintiff. K McIntosh for the defendant.
• Court: KwaZulu-Natal Local Division, Durban

D Pillay J:

[1] 'Poor legal writing might result in an injustice for a client: a judge might misunderstand what a lawyer is seeking; an adversary might seize on an ambiguity. To avoid these problems, strive for perfection.' [1] F

To this exhortation must be added the observation of the Constitutional Court:

'The movement towards the infusion of justice and equity or fairness into certain legal relationships is also taken further in the National Credit Act 34 of 2005 . . . and in the Consumer Protection Act 68 of G 2008 (see in part G the reference to the right to fair, just and reasonable terms and conditions and s 48).' [2]

And all writers, including lawyers must know:

'We write ethically when as a matter of principle, we would trade places H with our intended readers and experience what they do as they read our writing. None of us wants to hack through gratuitously unclear writing, so it seems self-evidently unethical to impose that kind of writing on others.' [3]

D Pillay J

What A if the legal writing is not easy to see, let alone to read and understand? At the heart of this action is the quality and quantity of the form and content of a written agreement on the basis of which the plaintiff claims payment of an amount of R559 817,45 as the cost of repairing a motor vehicle, a Land Rover Discovery, that was damaged whilst it was in the possession of the late Ivin Chutergun Rattan. Leshni Rattan B is Mr Rattan's executrix representing his estate. It was common cause that the deceased did not cause the damages to the Discovery.

[2] In terms of a written agreement dated 26 November 2012, Land Rover Experience Rentals CC (LRER CC) leased a Land Rover Freelander C to the deceased whilst the deceased's own vehicle was undergoing repairs at Land Rover Umhlanga. On 28 November 2012 LRER CC replaced the Freelander with the Discovery in terms of another similar standard agreement annexed to the particulars of claim as B2.

[3] The terms and conditions agreed could not be gleaned clearly from B2 because the quality of its form was not easy to read. Instead they D emerged during the testimony of Mrs Brown and Mr Murton, the witnesses for the plaintiff. The evidence for the plaintiff was that in terms of B2 the deceased had the use of the Discovery for as long as his own vehicle was undergoing repairs. The Discovery had to be returned in the same condition as when he had received it. Clarity about the insurance E of the vehicle whilst it was in the deceased's possession emerged when Mr Murton testified that the Discovery would be insured for the first 72 hours; thereafter the deceased would have had to make arrangements for his own damage insurance (ODI) or be personally responsible for the vehicle, its rental and other charges. During the initial 72-hour period the deceased was liable only for the excess of R20 000. [4] Counsel F conceded that the conditions pertaining to the 72-hour period were not written into B2.

[4] For its part Land Rover Umhlanga, which was not party to B2, had 72 hours in which to fix the deceased's vehicle. Mrs Brown gave conflicting evidence about whether it was able to do so and whether it G had to secure an extension of one day from Europe-Assist who facilitated the hire of courtesy vehicles on behalf of the plaintiff. Exhibit 1A, a car- hire request dated 26 November 2012 on the letterhead of Lazarus Car Hire, bearing the name of the deceased but listing Europe-Assist as its client, has a handwritten note that an extension was granted. The crucial question was whether the plaintiff informed the deceased that he should H return the vehicle before the expiry of 72 hours. There was no evidence of this.

[5] On 30 November 2012 the deceased was shot and killed whilst driving the Discovery, which was damaged as a result. Naturally the deceased was unable to return the vehicle. It was recovered from the I South African Police Service on 3 December 2012.

[6] The defendant challenges the locus standi of the plaintiff, firstly on the grounds of its identity, and secondly its interest in the claim. It had

D Pillay J

no witnesses to call and closed its case without leading any evidence. A I deal with locus standi before considering the enforceability of B2 under the common law and the Consumer Protection Act 68 of 2008 (CPA).

Locus standi

[7] As for the plaintiff's identity, B2 is an agreement between LRER CC B and the deceased. Surprisingly the plaintiff was cited as follows:

'Four Wheel Drive Accessory Distributors CC a close corporation, which has been duly incorporated and registered in accordance with the provisions of the Close Corporations Act 1984 trading under the style of Lazarus Car Hire and formerly trading under the style Land Rover Experience Rentals having its place of business at Church Street Extension Pretoria West, 0001.' C

Mrs Brown testified that there 'isn't a Land Rover Experience Rentals CC' and that 'Experience Care Hire' is a name of another firm that the plaintiff uses.

[8] The plaintiff led its evidence and the matter was adjourned for about D five months. On resumption it applied to rectify B2 by deleting the abbreviation 'CC' in LRER CC. Its explanation was that the plaintiff formerly traded under the name of 'Land Rover Experience Rentals' but B2 did not correctly record the description of its trading name. Apparently, the 'incorrect description of the plaintiff was occasioned by an error common to the parties' [sic]. For these reasons the plaintiff sought E the deletion of the extension 'CC' in B2.

[9] That this was a mutual mistake is an allegation the deceased is no longer available to confirm or refute. In the circumstances the court has to be especially careful in assessing the amendment, which was effected F without opposition. It cannot be correct that it was an 'error common to the parties' because the likelihood of the deceased taking notice of the identity of the other party to B2 when he signed it is remote, considering the quality of the form of B2 and the hurried circumstances in which he signed it. Not even Mr Murton noticed that LRER CC was a close corporation. Both issues are expatiated below. G

[10] What the plaintiff failed to explain is how the 'CC' came to be in B2 in the first place when that was not its trading name. Did such a close corporation ever exist? As B2 is a standard term agreement that was used on both the occasions that the deceased received courtesy vehicles, the plaintiff's explanation remains wanting, if not suspect. H

[11] Despite the defendant challenging the status of the plaintiff in its plea and throughout the cross-examination of its witnesses, the plaintiff failed to produce any documents to prove its incorporation and its relationships with Lazarus Car Hire and LRER with or without the 'CC'. I Its explanation that it was not obliged to produce the documents because its oral evidence could not be refuted is unacceptable. Faced with the defendant's persistent and vigorous challenge to the plaintiff's standing, the court could not reasonably accept the say-so of the plaintiff, especially when manifestly it did not conclude B2, which founded its action. J

D Pillay J

[12] A As for the plaintiff's interest in the claim, the evidence is all the more convoluted. The causa of the action between LRER CC and the deceased was recorded in B2 as an agreement to 'rent' the Discovery. The plaintiff pleaded that it was the lessee of the Discovery. But it referred to the Discovery as —

'[the B plaintiffs vehicle] in terms of an agreement of lease with the owner of the plaintiff's vehicle'.

Furthermore —

'(i)n terms of the agreement of lease between the plaintiff and the owner of the plaintiff's vehicle, the plaintiff bore the risk of loss of damage to C the plaintiff's vehicle'.

In both these extracts the plaintiff was referring to its lease agreement with the owner of the Discovery. Who was its owner?

[13] This emerged only during cross-examination when Mrs Brown testified that Land Rover South Africa (LRSA) owned the Discovery. D Allegedly, the arrangement between the plaintiff and LRSA was that LRSA would in terms of an oral arrangement lease its vehicles to the plaintiff; it would then rehire them from the plaintiff. LRSA paid rent to the plaintiff for the rehire of its own vehicle. In direct response to the question: 'What gives you the right to sue on this case if the vehicle belongs to LRSA?' E Mrs Brown replied: 'We in effect lease the vehicle from them'. If this response were true then it implied that LRSA hired its own vehicle and re-leased it to the plaintiff so that the plaintiff, not LRSA, could 'lease' the Discovery to the deceased. But the deceased paid no rental for the Discovery.

[14] F According to Mr Murton the plaintiff was in the business of renting vehicles throughout the country. He was the assistant manager for its Durban operations. To the best of his knowledge the clients paid no rental for the vehicles. He was unable to confirm whether LRSA leased and re-leased vehicles from the plaintiff. He was unsure about whether G LRSA paid rent for the vehicles.

[15] As for the relationship with LRSA, Europe-Assist and other companies involved with the plaintiff, he deferred to Mrs Brown who dealt with them. According to Mr Murton the plaintiff is a 'mobile operation' that does not have physical premises. [5] The transaction with the deceased H took place at a vacant desk at Land Rover Umhlanga.

[16] Unsurprisingly the defendant had no knowledge of these averments, not least because they are not self-evident from B2. Nor did the plaintiff's particulars disclose who the owner of the Discovery was. Describing the Discovery as 'the plaintiff's vehicle' when the plaintiff was not the owner was at best confusing, if not an attempt to conceal the I identity of the owner of the Discovery.

[17]...