Paarlberg Motors (Pty) Ltd t/a Paarlberg Bmw v Henning

JurisdictionSouth Africa
JudgeTraverso J, Maya AJ
Judgment Date31 August 1999
Citation2000 (1) SA 981 (C)
Docket NumberA861/98
Hearing Date13 August 1999
CounselFSG Sievers for the appellant SF Mouton for the respondent
CourtCape Provincial Division

Maya AJ:

This is a civil appeal from the magistrate's court for the district of Ceres. I shall refer to the D appellant as plaintiff and the respondent as defendant.

Plaintiff, a company with limited liability, duly registered and incorporated according to the company laws of the Republic of South Africa, and carrying on business as a motor car dealer of BMW and Land Rover vehicles in Paarl, sued defendant, an adult businesswoman of E Ceres, for damages in the sum of R30 000.

The cause of action appears from the following paragraphs of plaintiff's particulars of claim:

3.

'On or about 25 January 1996 and at Paarl the plaintiff, represented by Mr Theo van den Berg and defendant in person F concluded an oral agreement in terms whereof defendant sold to plaintiff a 1994 Land Rover TDI station wagon with registration No CT 15352 for the sum of R150 000.

4.

. . .

5.

Defendant was aware of the fact that the said motor vehicle had been scrapped and rebuilt but failed and/or neglected to disclose these G material facts to plaintiff, as she was obliged to do, prior to the sale of the vehicle to plaintiff.

6.

Plaintiff was at all material times unaware of the fact that the motor vehicle had been scrapped and rebuilt.

7.

Had defendant disclosed to plaintiff that the vehicle had been H scrapped and rebuilt the plaintiff would not have purchased the said vehicle from the defendant.

8.

The plaintiff had tendered the return of the motor vehicle to defendant claiming repayment of the purchase price but this tender has been rejected by defendant.

9.

In order to mitigate the damages suffered by it plaintiff sold I the motor vehicle for its true market value, namely R120 000.

10.

Plaintiff has accordingly suffered damages in the amount of R30 000.'

From the aforegoing it is clear that the plaintiff's cause of action is based on a fraudulent/negligent misrepresentation. The defendant's defence to J

Maya AJ

the merits of the claim is a denial of the said A misrepresentation and a positive averment that the plaintiff was at all material times aware of the fact that the vehicle had been rebuilt. As regards the quantum, defendant merely denied that plaintiff sold the vehicle for R120 000 (as alleged in the particulars of claim) and puts plaintiff to the proof thereof.

In support of its case, evidence was adduced by plaintiff by calling B Charles Greening who, at the time of the trial, had about ten years' experience with Land Rover vehicles; Theophilus van den Berg, its salesperson; and Derek Jeken, one of its managers. The latter witnesses had been in its employ at all relevant times. Van den Berg testified that in January 1996 defendant had approached plaintiff with a view to C purchasing a new Land Rover Discovery and trading in a 1994 Land Rover Defender County (hereinafter 'the vehicle') which was registered in her name but still owned by Bankfin under an instalment sale agreement. The vehicle had done about 29 600 km and appeared to be in good D condition. After some negotiations between the parties, the purchase price had been fixed at R150 000 and the deal concluded. Pursuant hereto, plaintiff paid the amount of R150 000 to Bankfin, thereby discharging the defendant's indebtedness to Bankfin in respect of the vehicle. The new motor vehicle was subsequently delivered to defendant. It transpired only some days later, when the vehicle's registration E papers were delivered to plaintiff, that the vehicle had once been involved in an accident, scrapped and subsequently built up, a fact which, plaintiff alleges, would definitely have caused it to negotiate a lower purchase price because of the risk involved in dealing with such a vehicle. Jeken's evidence is that, once plaintiff became aware that the vehicle, was built up and its trade value considerably less F than what it had paid defendant, it tendered to return it to the latter and claimed a full refund of the purchase price. The tender was rejected by defendant and to mitigate its loss plaintiff finally sold the vehicle in September 1996, not without some difficulty because of its built-up condition, which plaintiff had to disclose to prospective buyers, for a sum of R125 953,99. The vehicle registered a mileage of G 43 000 km at the time of its sale, having done a further 13 400 km whilst in plaintiff's possession.

Greening considered the sum of R125 953,99 to be a fair value for the vehicle, 'even possibly still on the high side'. He was also of the view that a sum of R5 000 was a fair market value of the spare H wheels which had come with the vehicle.

At the close of plaintiff's case, defendant's counsel applied for absolution from the instance. On granting such application the learned magistrate took the view that plaintiff had failed to adduce evidence on what the value of the vehicle was when it was...

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1 practice notes
  • Abakor Ltd v Crafcor Farming (Pty) Ltd t/a Riversdale Feedlot and Another
    • South Africa
    • Invalid date
    ...I consider that, when the second respondent in his first opposing affidavit gave the undertaking quoted earlier in this judgment, the J 2000 (1) SA p981 Magid applicant ought to have proposed some kind of agreement as to the costs A of the application to the date of the filing of that affid......
1 cases
  • Abakor Ltd v Crafcor Farming (Pty) Ltd t/a Riversdale Feedlot and Another
    • South Africa
    • Invalid date
    ...I consider that, when the second respondent in his first opposing affidavit gave the undertaking quoted earlier in this judgment, the J 2000 (1) SA p981 Magid applicant ought to have proposed some kind of agreement as to the costs A of the application to the date of the filing of that affid......

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