IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) PETER MOHLABA. and WINSTON NKOPODI JUDGMENT

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: Case No.: Civil Appeal 3/2003 PETER MOHLABA and WINSTON NKOPODI JUDGMENT HENDRICKS AJ: INTRODUCTION This is an appeal against the judgment from the Magistrate Court, Ga Rankuwa. The Appellant, who was the Plaintiff in the court a quo, appealed against the judgment of absolution from the instance granted by Magistrate T.G. Sono. On the 27 th June 2003, the appeal was heard and it was ordered that the appeal is upheld with costs and that the order of the magistrate is substituted with another order.

2 Reasons were then reserved. Here are the reasons. Ad Condonation The appellant applied to this court that condonation be granted for the late prosecution of the appeal and that his non compliance with the Rules of Court be condoned. After careful perusal of the Founding Affidavit of Hermanus Cornelius Smalberger we are of the view that a proper case has been made out for condonation to be granted for the late prosecution of the appeal and condonation was therefor granted. Ad Merits The Appellant (as Plaintiff) instituted an action for damages in the Magistrate Court, Ga Rankuwa. These damages arose out of a motor vehicle accident that happened between the car of the Plaintiff, driven by his wife, and the car of the Defendant. Appellant (Plaintiff) alleged in paragraph 6 of the Particulars of Claim attached to the summons, that the collision was solely caused as a result of the negligent driving of the Defendant. Defendant in his plea, in response to the allegations contained in paragraph 6 of the Appellant s Particulars of Claim stated: Ad Paragraph 6 The contents of this paragraph are admitted. The defendant also admits that on the day in question he admitted liability and went with the plaintiff s wife (i.e. the driver) to the police station so that he can make a statement that he will repair the car. He further asked the police the permission to hand him the car so that it can be repaired and they refused. The Magistrate in his reasons for judgment stated the following;

3 2. Facts found to be proved 2.1 Plaintiff is Peter Mohlaba an adult male person residing at 1985 Zone 8 Ga Rankuwa. 2.2 The defendant is Winston Nkopodi an adult male person residing at 87 Zone 7 Ga Rankuwa. 2.3 This court has jurisdiction to hear the matter. 2.4 The plaintiff was at all material times owner of Ford Telstar with registration CTK 950 GP which is motor vehicle in question. 2.5 On 31 st January 1998 a collision occurred between plaintiff motor vehicle and a motor vehicle driven by defendant. 2.6 That plaintiff s motor vehicle was damaged. 2.7 The collision was caused by exclusive negligence of the defendant. The above facts are common cause of the pleadings. And also on Page 39 of the record, the following: From the undisputed evidence of the plaintiff as well as the pleadings it is common cause that the Plaintiff s motor vehicle was damaged as a result of delictual conduct of the defendant.

4

5

6 It is therefor common cause between Plaintiff and Defendant that Plaintiff suffered damages to his motor vehicle as a result of Defendant s conduct as correctly found to be proved by the Magistrate. The only issue which had to be decided by the Magistrate was the quantum of damages suffered by the Plaintiff. Plaintiff presented evidence on the quantum by calling Wouter Prinsloo as an expert witness. His evidence in a nutshell is that he assessed the damage on Plaintiff s car and concluded that the fair and reasonable costs of repairs to Plaintiff s motor vehicle including labour, amounts to R The evidence of this witness was not contested or seriously disputed by the legal representative of the Defendant during cross examination. The driver of Plaintiff s motor vehicle on the day of the accident, Diphimotse Mohlaba, (Plaintiff s wife), also testified. She testified that Plaintiff s motor vehicle got damaged as a result of the collision. That was the case for plaintiff. The defendant s legal representative than applied for absolution from the instance and submitted that no evidence was led with regard to: i)the pre collision value of the motor vehicle, and ii)the fact that the motor vehicle was infact repaired. The magistrate granted absolution from the instance. In Couldridge v Eskom and Another 1994 (1) SA 91 at page 95 D E Jansen J. states the following: When absolution from the instance is sought at the end of plaintiff s case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence could or might (not should or ought to) find for the

7 plaintiff (Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A). See also: Long Oak LTD v Edworks (Pty) Ltd 1994 (3) SA 370 (SECLD). In Rosherville Vehicle Services v Bloemfontein Plaaslike Oorgangsraad 1998 (2) SA 289 (O) on page 293 D, Olivier WNR said the following: Die doel van n absolusie aansoek is duidelik. Wanneer die eiser al sy getuiens aan die hof voorgelê het, en dit blyk dat daardie getuienis nie die potensiaal het om n bevinding in sy guns te bewerkstelling nie, sou dit onsinnig wees om die proses te laat voortgaan. Waarom moet die verweerder hom verset teen n saak wat hom nie bedreig nie? Die maatstaf wat vir die aansoek gebruik word, moet dus daarop gerig wees om te bepaal of die eiser se getuienis die potensiaal vir n bevinding in sy guns het. Aldus Schmidt Bewysreg (1989) op 83. Die maatstaf is dus n rapsie laer as die van n prima facie saak: die getuienis hoef nie n antwoord te verg ( call for an answer ) nie. Nogtans moet dit egter die moontlikheid van n bevinding vir die eiser inhou: n redelike hof moet daarop ten gunste van die eiser kan bevind, aldus Schmidt (supra of 84). See also: Build A Brick BK en Ander v Eskom 1996 (1) SA 115 (O). The Magistrate in his Reasons for Judgment on page 40 of the record stated the following: The question now facing the court is to determine the fairness or reasonableness of

8

9

10 the repair costs and accordingly reasonableness and fairness of a amount of damages to be awarded to the Plaintiff. The court asks itself the following question: 1. Will the amount of R restore the plaintiff s motor vehicle to its pre damaged value. The court cannot answer this question if there is no evidence proving the predamaged value of the plaintiff s vehicle. 2.Is the amount R fair and reasonable in the circumstances of the case. In answering this question, the court must be in the position to compare the repair costs with the pre and post collision value of plaintiff s vehicle. If the repair expenses were to exceed the pre collision value of the motor vehicle, the repair costs will not be said to be economically viable and such costs will be unfair and unreasonable. The court is not in a position to answer all this questions if there is no evidence regarding the pre collision as well as the post collision value of the plaintiff s motor vehicle. The Magistrate misdirected himself in not finding that Plaintiff succeed in proving that the reasonable costs to repair his motor vehicle, to a precollision state is R as testified to by the expert witness, Mr Prinsloo. It was not for that court to decide as to whether the amount is fair and reasonable in the absence of any dispute by the Defendant. No other amount that is more reasonable and fair was suggested or proved by the Defendant. In the absence of evidence to the contrary, the Magistrate was bound to accept the undisputed evidence of Mr Prinsloo in determining as to whether a court can reasonably find for the Plaintiff, and he should have found that such a case was made out by the Plaintiff.

11 Where a plaintiff in an action for damages to a motor vehicle adduces evidence which establishes the reasonable and necessary costs of repairs to his vehicle, proof of such costs would, ordinarily be prima facie proof that payment to him of such costs would place him financially in the same position as he would have been in had the collision not occurred. If there is no evidence to show that the reasonable and necessary costs of repairs might exceed the diminution in value, the prima facie proof becomes proof on a preponderance of probabilities and a Plaintiff has then succeeded in proving his damages. The Plaintiff, therefore, need merely adduce evidence of the reasonable costs of repair. He does not have to prove that the diminution of the value of the vehicle is not less. The onus is on the Defendant to prove that the Plaintiff has overestimated his damages. In view of the above, I am of the view that the undisputed evidence of Prinsloo is prima facie proof of the quantum of the Appellant s damages and that, in the absence of any evidence by the Respondent that the reasonable and necessary cost of repairs exceeds the diminution in value of the Appellant s vehicle, the aforesaid prima facie proof can become proof on a preponderance of probabilities. The Magistrate was wrong in granting absolution from the instance. In view of the above mentioned, the appeal is upheld with costs. The order of the court a quo is substituted with the following order: 1)The application for absolution from the instance is dismissed with costs. 2)The matter is to be proceeded with before the same Magistrate or in his

12 absence, the matter should be heard de novo before another Magistrate. R.D. HENDRICKS ACTING JUDGE OF THE HIGH COURT I agree, and it is so ordered. H.N. HENDLER JUDGE OF THE HIGH COURT DATED: 03 JULY 2003