Namupala v Shilomboleni
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Small AJ |
| Judgment Date | 29 October 2021 |
| Court | Northern Local Division, Oshakati |
| Docket Number | HC-NLD-CIV-ACT-CON-2019/00011 |
Small AJ:
Introduction:
The dispute before this court is as a result of a damaged motor vehicle that belonged to the plaintiff. The first defendant succumbed to his injuries as a result of the crash and this claim is in essence levelled against the second defendant who allegedly caused the first defendant to borrow the vehicle to be used for her benefit.
The parties:
The plaintiff is Ms Anna Tuyoleni Namupala, a major female, resident of Ongandjera Village, Okahao. The first defendant is Mr Nashilundu Mika Ndapopiwa Shilomboleni, a major male cited in his official capacity as Estate Representative in the Estate of the Late The deceased. The first defendant no longer forms part of these proceedings. The second defendant is Ms Julia Negumbo, a major female teacher resident of Ongandjera Village.
The plaintiff is represented by Mr J Greyling and the Second Defendant, Mrs Negumbo acts in person.
Background:
On or about 23 March 2017, and at or near Okahao, Plaintiff, the late Shikalepo Matheus Tobias (herein "the deceased") and second defendant on the other side, allegedly entered into a verbal agreement in that plaintiff will lend her vehicle to second defendant for the purpose of tracing her livestock at a particular cattle, the vehicle would be operated by the deceased, at the behest of and for the benefit of second defendant; 6.3 for purposes and duration of this agreement, both second defendant and the late
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The deceased would assume the safe custody and risk of the vehicle and return the vehicle in the same condition as it was presented to them. The plaintiff is the lawful owner, alternatively bona fide possessor, of a Toyota Hilux motor vehicle with registration number N 41414 SH ("the vehicle").
The vehicle was not returned in the same condition as it was overturned while being operated by the deceased. At the funeral of the deceased and at the residence of the said deceased, plaintiff and second defendant allegedly entered into a verbal settlement agreement, which agreement allegedly stated that the second defendant will pay an amount of N$ 80 000 to plaintiff in respect of the damages sustained to plaintiff's vehicle. Second defendant shall pay the entire amount on or before the end of June 2017, Upon receipt of payment of the entire amount from second defendant, plaintiff will have no further claims against second defendant. The second defendant breached the settlement agreement in that she failed and/or neglected to pay to plaintiff the amount of N$ 80,000.
During September 2018 and at or near Omfitu village at the senior headman's residence, a meeting was scheduled between plaintiff, second defendant, various members of the community and various headmen for the area. during the said meeting, a verbal settlement agreement was reached between plaintiff and defendant, the terms of which novated the agreement entered into between the parties during April 2017 to the letter. The second defendant confirmed the terms of the agreement as concluded during April 2017. Once more the second defendant breached the agreement.
In her plea, the second defendant denies that the deceased informed her that he would request the use of the motor vehicle of the Plaintiff nor was the Second Defendant part of any verbal agreement between the Plaintiff and the First Defendant in terms of which the Plaintiff granted the use of her motor vehicle.
Furthermore that second defendant states that a meeting was held between the Plaintiff and the deceased's family as a whole in terms of which the late Shikalepo Matheus Tobias's family agreed to pay an amount of N$80 000 to the Plaintiff in respect
2021 JDR 2920 p5
Small AJ
of the damages to the plaintiffs motor vehicle provided that the Plaintiff shall hand over the damaged vehicle to the family of the late Shikalepo. The late Shikalepo's family at a later stage refused to pay any money to the Plaintiff because they lost a family member in the motor vehicle accident.
Issues to be resolved:
Amongst the relevant questions raised by the parties in the proposed pre-trial order dated 23 April 2020, which was made an order of court on 19 May 2020, this court is called upon to determine the following:
'Issues of fact to be resolved during the trial
1. Whether on the 23 March 2017, Plaintiff entered into a verbal agreement with the late Shikalepo Matheus Tobias and Second Defendant, in the following express and/or implied alternatively tacit terms:
1.1 Plaintiff will lend her motor vehicle to Second Defendant for the purpose of tracing her livestock at particular cattle post;
1.2 The vehicle would be operated by the Late Shikalepo Matheus Tobias, at the behest of and for the benefit of Second Defendant;
1.3 For the purpose and duration of this agreement, both Second Defendant and the Late Shikalepo Matheus Tobias would assume the safe custody and risk of the vehicle and retum the vehicle in the same condition as it was presented to them;
1.4 The vehicle must be returned by the 24th of March 2017, and for reimbursement of Plaintiff for the use of the vehicle by Second Defendant and the Late Shikalepo Matheus Tobias (late Tobias), the vehicle should be returned to Plaintiff with a full tank of fuel.
2. Whether Second Defendant and the late Tobias, breached the above agreement in that:
2.1 Second Defendant and the late Tobias failed to return the vehicle to Plaintiff in the same condition as it was presented.
3. Whether during April 2017, at the funeral of the late Tobias, Second Defendant admitted to Plaintiff requesting the late Tobias to submit a request on her behalf, for the vehicle of Plaintiff to recover her cattle.
4. Whether during April 2017, at the funeral of the late Tobias, Plaintiff and Second Defendant entered into a verbal settlement agreement to wit:
2021 JDR 2920 p6
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4.1 Second Defendant will pay an amount of N$80 000.00 to Plaintiff in respect of the damages sustained to Plaintiffs motor vehicle;
4.2 Second Defendant shall pay the entire amount on or before the end of June 2017;
4.3 Upon receipt of the entire amount from Second Defendant, Plaintiff will have no further claim against Second Defendant. Or according to First and Second Defendant's version
4.4 That Plaintiff shall deliver the damaged vehicle to Second Defendant's family before payment;
5. Whether Plaintiff and/or Second Defendant complied with the terms of the settlement agreement.
6. Whether in September 2018, a meeting was held chaired by Ms. Julia lipinge, the headman of the Oshiteyi Village, or Chief David Ligonda at lngapanda Ongandjera Village.
7. Whether during the said meeting in September 2018, Second Defendant admitted to nonpayment of Plaintiff in the amount of N$80 000,00 and the reasons thereof, and admitted to requesting the late Tobias to make a request on her behalf for the vehicle of Plaintiff for the recovery of Second Defendant's cattle'.
8. Whether during the meeting in september 2018, Plaintiff and second Defendant agreed to the following: 8.1 Second Defendant would pay the amount of N$ 80 000.00 to Plaintiff;
8.2 Second Defendant would pay the amount within 2'3 months; 8.3 Once Second Defendant paid the amount, Plaintiff will have no further claims against the Second Defendant;Or according to First and Second...
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