(c)
that it is economically viable to effect the said repairs i.e. that the cost of the repairs will not exceed the diminution in value
of the vehicle.
[9]
Cases where these principles are clearly set out are the cases of ERASMUS v. DAVIS 1969 (2) S.A. 1 (A) and PRICE & QUALITY BAKERY (PTY) Ltd v. BOPHELO (Georg’s Bakery) & ANOTHER 1997 BLR 1282. In this last-mentioned case Gyeke-Dako J. states the following at page 1291 E-F:
“the onus is on the plaintiff to prove on the balance of probabilities that the charges for repairing the damage were fair and reasonable. See
SCROOBY v. ENGELBRECHT supra. To establish reasonableness of the charges and the necessity for the repairs it is not sufficient to prove a quotation/account.”
[10]
In the case of SCROOBY v. ENGELBRECHT 1940 T.P.D. 100 the following is stated at page 103:
“(the defendant’s ) liability is to pay the true cost of the repairs and not what the plaintiff has paid or has agreed or is
willing to pay”
[11]
The Price & Quality Bakery case is quoted with approval by Lesetedi J. in the later case of TSAYANG’S EXPRESS v. THE ATTORNEY – GENERAL & OTHERS 2004 (1) BLR 298 and the following is stated at page 310 B –C:
“A party who bases his claim for damages on the cost of repairs must prove that the repairs for which the damages are claimed were
necessary as a result of the collision and that the charges for the repairs were fair and reasonable by calling expert evidence or
evidence from the repairers. Mere production of quotations is not sufficient.”
[12]
Mr. Otukile has referred us to an unreported judgment of Chinhengo J. which was apparently delivered
on 8 May 2007. The reference to the case is MMOLOTSI v. NORTH WEST DISTRICT COUNCIL & ANOTHER (CCF 98/2001). I have not had sight of this judgment but according to Mr. Otukile on facts similar to those in the present case Chinhengo J. dismissed
an application for absolution at the end of the plaintiff’s case. He is alleged to have stated the following in his judgment:
“The onus rests on plaintiff of proving, not only that he has suffered damage, but also the quantum thereof. Where, however, a plaintiff
leads evidence which establishes the reasonable and necessary cost of repairs to his vehicle damaged in a collision, proof of such
cost would, in my judgment, ordinarily be prima facie proof that payment to him of such cost would place him financially in the same
position as he would have been in had the collision not occurred. If on all the evidence adduced at the trial there is nothing to
show that the reasonable and necessary cost of repairs might exceed the diminution in value, the prima facie proof may become proof
by a preponderance of probabilities and a plaintiff has then succeeded in proving his damages…………
The plaintiff being a self actor, said that he was able to pay only P5 500.00 of the repair bill of P36 503.38 and that his motor
vehicle was taken by the repairer to defray the balance. He contended that the quotation which he attached to the writ of summons
proves the damages which he sustained. Now, as correctly put by Mr. Mandandume, the test at the close of the case for the plaintiff,
when an application for absolution from the instance is made, is whether there is evidence on which a reasonable court might find
for the plaintiff. In dismissing the application for absolution I considered that there was such evidence. The fact of the collision
was not in dispute. The fact that damage was sustained by the plaintiff’s vehicle was not in dispute. That alone in my view
is some evidence on which a reasonable court might find for the plaintiff and sufficient too to defeat an application for absolution.
The actual amount of the damages claimed is ultimately a matter in the discretion of the court, to be exercised judicially, upon
the evidence placed before it.
The plaintiff attached a document to the writ of summons which he intended to use as proof of his damages. Though this was improper,
there was no objection by the defendant. The plaintiff should have been in a position to prove his damages more precisely by producing
the invoice from the repairer.”
[13]
With great respect to the learned judge, his statement cannot be supported. A mere quotation setting
out a list of items that require repair and the estimated cost of repairing those items cannot provide prima facie proof that those costs are fair and reasonable or that they were necessary as a result of the accident. The costs may be quite excessive
and the items said to be damaged and to require repairing may have existed prior to the accident. This Court, therefore, finds that
the views expressed by Gyeke-Dako J. and Lesetedi J. in regard to the production of a quotation to establish the quantum of damages
in a case such as the present are correct and that the statement of Chinhengo J. in this regard is incorrect. This Court holds that
the mere production of a quotation in such a case does not meet the requirements necessary for the establishment by a plaintiff of
his quantum of damages.
[14]
In the present case the appellant had to prove that the quotation for repairs to the vehicle concerned
damage to the vehicle directly attributable to the accident, that the repairs were necessary and that the charges therefor were reasonable.
In the court a quo it was held that no evidence had been led to prove the quantum of damages, and absolution from the instance was
ordered.
[15]
On behalf of the appellant it was submitted that because the quotation given by Trans-World Motors was
handed in by consent, and because Keith Diako was not cross-examined on the contents thereof, the quotation provided prima facie evidence that the sum of P27 617.81 was the reasonable and necessary cost of restoring the vehicle to its pre-accident condition.
This submission was in my opinion correctly rejected by Makhwade J. in the light of the authorities referred to above. The mere production
of the quotation did not provide evidence that the repairs quoted for were all rendered necessary by the accident, and that the prices
quoted were fair and reasonable. That being the case, absolution from the instance was correctly ordered.
[16]
Regarding the costs of the hearing in the court a quo, Mr. Otukile has submitted that because several
of the points argued on behalf of the respondent were dismissed Makhwade J. erred in ordering the present appellant to pay the costs.
He submits that the costs should have been apportioned between the parties. The fact of the matter is that the application for absolution
was granted and it was within the discretion of the judge in the court a quo to determine an appropriate costs order. It cannot be
said that he failed to exercise his discretion judicially and this submission on behalf of the appellant cannot succeed. The appeal
is to be dismissed and the usual costs order in such a case is the appropriate order to make.
[17]
In the result the appeal is dismissed, with costs.
DELIVERED IN OPEN COURT AT LOBATSE ON THE ……. DAY OF APRIL 2008.
__________________
N.W ZIETSMAN
JUDGE OF APPEAL
I AGREE
___________________
P.H. TEBBUTT
JUDGE PRESIDENT
I AGREE
___________________
S. TWUM
JUDGE OF APPEAL
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