Nyandeni v Natal Motor Industries Ltd

• Jurisdiction: South Africa
• Judge: Fannin J
• Judgment Date: 01 February 1974
• Citation: 1974 (2) SA 274 (D)
• Court: Durban and Coast Local Division

Fannin, J.:

On 23rd November, 1971, at Durban, the plaintiff E and the defendant entered into a hire-purchase agreement in respect of a used Mercedes Benz Bus in terms of which the total purchase price, including interest, was the sum of R4 950,06 (R450,06 being interest), of which R1 500 was paid in cash by way of a deposit, the balance being payable by instalments. At the time of the sale the plaintiff received a certificate of F fitness issued in Durban some 12 days before delivery of the bus, in which the total capacity of the bus was stated to be 57 seated passengers and 17 standing passengers, a total of 74 passengers. After receiving delivery the plaintiff took the bus to the provincial authorities in Dannhauser, in which district he intended to operate the bus, to obtain a fresh certificate of fitness enabling him to take transfer of the bus. The G authorities concerned found certain defects in the bus and also informed the plaintiff that the maximum permitted seating capacity was only 35 plus 14 standing passengers.

In his statement of claim the plaintiff pleaded that:

"6.

During the course of the oral negotiations between defendant duly represented by the said Saunders and/or Bailey, and the plaintiff, the defendant represented to the plaintiff:

(a)

H that the said bus had a seating capacity of 57 passengers and standing capacity for 17 passengers, making a total of 74 passengers in all;

7.

The said representations:

(a)

were made with the intention of inducing the plaintiff to enter into the said agreement;

(b)

were made by the defendant with the intention that the plaintiff should rely upon the truth thereof;

(c)

were believed by the plaintiff and he was induced thereby to conclude the said agreement;

(d)

were material to the said agreement in that the plaintiff would not have concluded it but for the said representations.

Fannin J

8.

The said representations were false.

9.

On or about 27th November, 1971, it was mutually agreed between the plaintiff and the defendant that the said agreement be then and there cancelled."

In the alternative, the plaintiff pleaded that by reason of allegations in paras. 6, 7 and 8 above the plaintiff was A entitled to cancel the agreement and that he did so on 7th February, 1972. The plaintiff also alleged that he returned the bus to the defendant, but the defendant failed to repay the deposit of R1 500 referred to above. He accordingly claimed repayment of the R1 500, with costs.

The foregoing represents the state of the plaintiff's claim as B at the date of trial, the plaintiff having originally claimed, in the further alternative, that by reason of certain defects in the bus he was entitled to cancel the contract. The further alternative claim was, however, dropped by an amendment made in June, 1972. After asking for and obtaining further particulars, which included an allegation that the agreement of cancellation C was made with a certain Mr. Ferroz, the manager of the Newcastle branch of the defendant company, the defendant, while admitting that the representation as to the seating capacity of this bus had in fact been made, pleaded that it had been made in good faith and that it was true in every respect. After denying the alleged cancellation by mutual consent, the plea proceeds as follows:

"10.

D The defendant admits that:

(a)

the plaintiff purported to cancel the said agreement and, by letter dated 7th February, 1972, communicated to the defendant his purported election to do so;

(b)

the plaintiff left and abandoned the said bus at the defendant's premises in Newcastle on or about 27th November, 1971;

(c)

the defendant has not repaid the said amount E of R1 500 or any part thereof to the plaintiff.

11.

Save as aforesaid the defendant denies the allegations in paras. 11, 12 and 17 of the particulars of claim.

12.

By reason of the fact that the plaintiff has made an unfounded and reckless allegation of fraud against the defendant it is proper that any costs awarded to the defendant be taxed on the scale as between attorney and client."

During the trial, at the close of his case, the plaintiff F amended the further particulars by substituting, for the name Ferroz as the person who had agreed on the defendant's behalf to the cancellation of the sale, the name of one Fisher. Furthermore, at the commencement of the second day of the trial, plaintiff's counsel informed me that the plaintiff no G longer relied upon the cause of...