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IN THE SUPREME COURT OF NAMIBIA
In the matter between: CASE NO. SA 9 / 90
FRANK DETLEF RoHRICH Appellant
and
AXLES & GEARBOXES (PTY) LTD. Respondent
CORAM: BERKER,C.J.; MAHOMED,A.J.A.; DUMBUTSHENA, A.J.A.
Delivered on: 1990/11/12
APPEAL JUDGMENT
DUMBUTSHENA, A.J.A: The appellant in this case was the defendant in the magistrate's court and the respondent was the plaintiff. The respondent sued the appellant in the magistrate's court at Windhoek for payment of the sum of R4 744.00 being the amount still outstanding on an account for goods supplied and services rendered by the respondent to the appellant. The magistrate entered judgment for the respondent. The appellant appealed to the then Supreme Court of South West Africa. The appeal was dismissed with costs. By leave of the court a. quo, the appellant appealed to the Appellate Division of the South African Supreme Court. The appeal was argued before us, the Supreme Court of Namibia, because South West Africa became the independent Republic of Namibia before the Appellate Division heard the appeal.
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The facts of this case appear in detail in the judgment of the magistrate and were fully canvassed in the judgment of Strydom, J. Briefly the facts are as follows:
The appellant instructed the respondent to effect and fit a new axle and a gearbox assembly to his Willy's Jeep. The respondent modified the Jeep and fitted in a Toyota axle and a gearbox assembly. Before this the appellant had fitted on the Jeep a heavy V8 engine. At the suggestion of the respondent the appellant caused to be installed in his Jeep a different steering system and an overdrive. Mr. Eichhoff of the respondent's company test-drove the Jeep to and from Sossusvlei. On his return he fixed an oil leak which he had discovered.
The appellant seemed to be satisfied with the work done. He, however, asked the respondent for a guarantee. It was given to him. The guarantee was for six months. He, in terms of the guarantee, was required to take the Jeep to the respondent in May 1986 and finally during the month of August 1986. He never did.
The respondent wanted the balance of his account paid. It seems from the evidence the appellant was not willing to pay. He was served with a summons on 19 June 1986. After that the appellant took his Jeep to the Automobile Association of South Africa for inspection. It was examined by Mr. Kivit. In his report Mr. Kivit pointed out many unsatisfactory features which required attention in order
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to make the vehicle safe and roadworthy. He concluded his report by pointing out that the leave spring assembly of the vehicle .could not .cope with the additional weight added by the conversion, the unsprung weight and the power to weight ratio. He said the modification of the front leave spring shackle and hanger assemblies were dangerous. He recommended the fitting Of a Toyota leave spring assembly which had to be mounted properly by reinforcing the mounting points on the .chassis and by fitting a .cross-member.
The respondent said that he had told the appellant to do what Mr Kivit had recommended but he refused because he did not want to pay more money. The appellant denied that the appellant advised him to carry out the modifications recommended by Mr Kivit.
Instead of taking his Jeep to the respondent for further modifications the appellant asked Dago Motors for a quotation. The modifications were done by Dago Motors for R2 811.11.
The appellant does not deny that there was a contract between him and the respondent. He does not deny that work was done on his Willy's Jeep by the respondent. He did not query the amount of money he was charged by the respondent. He accepts that his Jeep was modified as alleged by the respondent. He, however, pleaded that there was an express or in the alternative, an implied term that the work would be done professionally and in a workmanlike manner which
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would put the Jeep in a first .class .condition and thus make it safe to drive.
Mr. Roux, for the appellant, did not attack the judgment of the Court ￡ quo. It is .clear from a reading of that judgment that all the essential points of the .case were .considered thoroughly by a .court that applied its mind to all the issues .raised on appeal. Hovever, Mr. Roux contended that the respondent did not .carry out his part of the contract in a professional way. He submitted that the magistrate had erred in not .coming to the conclusion that the manner the springs were assembled by respondent was unprofessional. Mr. Roux argued that the respondent ought to have fitted a Landcruiser suspension to the Willy's Jeep. It was for this reason that the appellant alleged in his plea that:
"... plaintiff committed a breach on the terms of the agreement between Plaintiff and Defendant, alternatively Plaintiff failed to perform fully his obligations under the said contract and failed to complete the work he had undertaken to do by making the vehicle safe for driving, alternatively plaintiff defectively performed the work by creating an unsafe vehicle".
The evidence on the record does not show that the respondent failed to .perform his part of the contract. He
- 5 -was required to fit a Toyota axle and a gearbox assembly. He did. Later it was agreed that the respondent install a steering system and an overdrive. It .can be seen that the respondent .completed his part of the bargain. This evidence does not support Mr Roux's .contentions.
Ms Vivier-Tur.ck, for the respondent, submitted that on the pleadings no .case was made out that the respondent owed a duty of .care to the appellant to warn him of the inherent risks involved in the modification done by the respondent. This case is distinguished from Bulford v Bob White's Service Station (Pvt.) Ltd., 1973(1) S.A. 188 (R.A.D.) In the instant case the respondent went out of his way to advise the respondent of new installations the respondent thought necessary. It was up to the appellant to sanction, for instance, the installation of a Landcruiser spring. As pointed out above, he refused to have the installation done by the respondent because he did not want to pay more money.
Ms Vivier-Turck further submitted, in her written heads of argument, that a waiver by the appellant of his contractual right to enforce the guarantee in his favour against the respondent could not be exercised in such a manner as to deprive the respondent of an opportunity to remedy the defects complained of. That guarantee restricted respondent's liability for the defects in the work to a period of six months. It was the appellant who insisted on that guarantee and yet he did not return the vehicle to the respondent to rectify the defects now complained of. By not
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going back to the respondent for .corrective repairs, the appellant deprived himself of the opportunity to repair his vehicle for no .charge. When the appellant took the vehicle to Dago Motors for further modifications the guarantee had not yet expired. He .could still have returned the Jeep to the respondent, at least, for the repair of faults arising from modifications done by the respondent. The appellant must have realised that the repairs to the Jeep to be effected by Dago Motors had not been occasioned by the respondent.
It must be assumed that when the appellant sought to set-off the money he paid to Dago Motors against respondent's claim he knew that he could not succeed. That might be the reason that made him not to counterclaim.
The appellant was required to pay the full amount charged by the respondent. He could not expect the respondent who had completed the terms of the contract to claim from him some sort of quantum meruit based on the fact that there were defects in his work. The respondent was entitled to claim the full amount for the work done.
It was open to the appellant to establish his claim for a set-off or counterclaim. See: Basinghall Investments Ltd. v Figure Beauty Clinics Ltd., 1976(3) S.A. 112 (W.L.D.) at 120 G-H. The facts of -this case are distinguished from those of the instant case but the principle is the same.
Mr. Roux submitted that because the respondent relied on an
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agreement which included reciprocal obligations he was only
entitled to be paid the agreed .contract price if he
fulfilled all its obligations in terms of the agreement.
There was no agreed price in the .contract agreed to by the
appellant and the respondent. It was the appellant who
sought to rely on the exceptio non adimpleti .contractus
defence. But the principle of reciprocity envisages that
the .common intention of the parties, in many .contracts, is
the exchange- of performances. In this .case as long as the
appellant had not paid the full price of the repairs done
by the respondent, he .could not avail himself of the
defence. The respondent performed. It was up to the
appellant to fulfil his part of the bargain. He did not.
The appellant cannot, therefore, raise the exceptio non
adimpleti contractus defence. He could not have expected
the respondent to continue repairing his vehicle before he
was fully paid for the work he had done. See:
Anastasopoulos v Gelderblom, 1970(2) S.A. 631 (N.P.D.) at
635H - 636 G.
In Ese Financial Services (Pty) Ltd. v Cramer, 1973 (2) S.A. 805 (C.P.D.), Corbett, J., as he then was, said at 808-809E:
"In a bilateral contract certain obligations may be reciprocal in the sense that the performance of the one may be conditional upon the performance, or tender of performance, of the other. This reciprocity may itself be bilateral in the sense that
8 -
the performance, or tender of performance, of them represent .concurrent conditions; that is, each is .conditional upon the other. A ready example of this would be delivery of the res vendita and payment of the purchase price under a .cash sale. (See:Crispette and Candy Co.Ltd. v Oscar Michaelis, N.O. and Another, 1947(4) S.A. 521 (A.D.) at p.537). Alternatively, the- reciprocity may be one-sided in that the .complete performance of his contractual obligation by one party may be a condition precedent to the performance of his reciprocal obligation by the other party. In other words the obligations, though inter-dependent, fall to be performed consecutively. An example of this would be a locatio-conductio operis whereunder the conductor operis is normally obliged to carry out the work which he is engaged to do before the contract money can be claimed. In such a case the obligation to pay the money is conditional on the preperformance of the obligation to carry out the work, but, of course, the converse does not apply (see, e.q..Kamaludin v Gihwala, 1956 (2) S.A. 323 (C) at p.326; de Wet and Yeats, Kontraktereg, 3rd ed.,p.l39). Reciprocity of obligations does not depend, however, merely upon the time fixed for the performance thereof. Thus, the mere fact
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that the contract specifies that the obligations are due to be performed on the same day does not lead to the inference that the parties intended them to be reciprocal (see Strydom v Van Rensburgf 1949 (3) S.A. 465 (T) at p.467). For reciprocity to exist there must be such a relationship between the obligation to be performed by the one party and that due by the other party as to indicate that one was undertaken in exchange for the performance of the other and, in cases where the obligations are not consecutive, vice versa (see de Wet and
Yeats , Kontraktereg, p.138; Myburgh v
Central Motor Works, 1968(4) S.A. 864 (T) at p.865; Anastasopoulus v Gelderblom, 1970 (2) S.A. 631 (N) at p.636)."
See also Christie: The Law of Contract in
South Africa, pp 416 - 418;
B.K. Tooling (Edms) Bpk v Scope Precision
Engineering (Edms) Bpk., 1979(1) S.A.
391(A). (The English Headnote.)
Although it was the appellant who was at fault, he raised the exceptio non adimpleti contractus defence in which the reciprocity of obligations is essential. It may be the appellant did not appreciate that his failure to pay the balance of the contract price disentitled him from raising the exceptio, let alone setting-off the money he had paid
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to a third party that had repaired a vehicle that was still under guarantee.
See: National Screen Print v The Campbell-Scott Company , 1979(4) S.A. 393 (C.P.D.) at 397 C-E.
When he received the report from Mr Kivit he did not take the vehicle to the respondent. He asked Dago Motors to effect the new modifications to the Jeep. Mr Damaschke of Dago Motors installed the front part of a Landcruiser with springs together with shackles which he fastened together with the springs. Dago Motors charged him R2 811.11. He paid. It was this money he tried to set-off yet there was no relationship between the work done by the respondent and that done by Dago Motors.
Mr Roux attacked the magistrate's decision to make the appellant, who was then the defendant, adduce evidence first. He said the onus was thus placed on the appellant and this according to Mr Roux prejudiced the appellant. It is known that the acceptance by a party of the onus to begin does not imply an acceptance of the onus of proof.
See: Mobil Oil Southern Africa (Pty) Ltd. v Mechin, 1965 (2) S.A. 706 (A).
Munsamy (also known as Naidu) v Gengemma , 1954 (4) S.A. 468 (N.P.D.)
The defendant may have .the evidential burden to begin to
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adduce evidence on account of the assertions he makes in his pleadings. See: Kriegler v Minitzer and Another, 1949(4) S.A. 821 (A.D.) The burden of proof will not shift from the plaintiff to the defendant just because the defendant adduced evidence before the plaintiff. The onus of proof will remain with the plaintiff.
In Mobil Oil Southern Africa (Pty.) Ltd. v Mechin, 1965(2) S.A. 706 (A.D.) Potgieter, A.J.A., as he then was, summarised at 711 E-F the principles governing the determination of the party which should adduce evidence first. He said:
"The general principle governing the determination of the incidence of onus is semper necessitas probandi incumbit illi qui agit, i.e. he who seeks a remedy must prove the grounds therefor. There is, however, also another rule, namely, e_i incumbit probatio qui dicit non qui negat, i.e. the party who alleges, or as it is sometimes stated, the party who makes the positive allegation, must prove. Together with these two rules must be read the following principle, namely: agere etiam is videtur, qui exceptione utitur nam reus in exceptione actor est, i.e. where the person against whom the claim is made is not content with a mere denial of that claim but sets up a special defence, then he is regarded, quoad
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that defence, as being the claimant; for his defence to be upheld he must satisfy the Court that he is entitled to succeed on it."
Although in this .case the appellant was .compelled by the magistrate to give evidence first, it seems to me no prejudice resulted from his giving evidence first. In the end the magistrate placed the onus, of proof on the plaintiff where it rightly belonged. Mr Roux did not succeed in showing us that the course adopted by the magistrate had resulted in substantial prejudice or any prejudice to the appellant. In my view unless compelling a defendant to give evidence first results in prejudice to the defendant, it is not wise to take the point on appeal.
In my view there was no merit in this appeal. Accordingly the appeal is dismissed with costs.
DUMBUTSHENA, A.J.A
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I concur:
BERKER, C.J.
I concur:
MAHOMED, A.J.A
Advocate for the Respondent: S.Vivier-Turck Instructed by: Muller & Brand, Windhoek.
Advocate for the Appellant: P. Roux Instructed by: A. Vaatz & Company.
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