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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: A3065/01

DATE:2002-03-07

In the matter between

BONANZA INTERIORS (EDMS) BPK..........................................................................Appellant

and

MURAU VEHICLE SALE (EDMS) BPK................................................................... Respondent

JUDGMENT

WILLIS, J: This is an appeal against the dismissal with costs of an action for damages instituted in the Vereeniging Magistrate's Court. The claim is for damages as a result of a sale of a motor vehicle in breach of the implied warranty against latent defects.

The plaintiff in the court a quo also claims that the defendant was unable to deliver the vehicle duly registered in South Africa. This had the consequence that the vehicle could not lawfully be used in South Africa for the purpose for which it had been sold.

The appellant, who was the plaintiff in the court a quo, has a shop fitting business in Johannesburg. It sent two directors, Mr Costa and Mr Robeiro, to inspect an 8 ton Mercedes Benz truck at "Vereeniging Delta", the business of the defendant. The defendant was a dealer in new and second-hand cars and trucks. Mr Costa and Mr Robeiro went to the defendant on or about 22/23 February 1999. The defendant offered to sell the plaintiff the truck for the sum of R37 500. The truck was described as the 1517 Mercedes truck with a turbo engine. Mr Costa and Mr Robeiro inspected the truck although they had no mechanical expertise and were told by Mr Des Turner, the defendant's sales manager, that "the engine had just been done up".

They returned to Johannesburg without buying the truck and reported to Mr Peter Hahn, plaintiff's financial director, who telephoned Mr Des Turner, the sales manager of the defendant and agreed to pay R37 000 in cash for the truck. Mr Robeiro then took a cheque drawn by the plaintiff for the sum of R37 000 to the defendant. An invoice was issued. The truck was delivered to Mr Robeiro on 24 February 1999, subject to the agreement that the truck could be re-delivered to it for registration for use in the Republic of South Africa as the truck had been registered in the Kingdom of Lesotho and could not lawfully be used in South Africa until the registration had been changed.

The truck was re-delivered by plaintiff to defendant for registration to be completed in March 1999. The defendant had it driven to Lesotho where the necessary clearances were obtained and it was driven and towed back to Vereeniging. In May 1999 the vehicle had to return to Lesotho again to clear further aspects relating to its de-registration in Lesotho and re-registration in South Africa. On the way back from Lesotho it broke down with a problem with its differential, referred to in the evidence as "the diff" and was towed to a Mr Baum in Vanderbijlpark where the differential housing was dismantled and the diff removed. The truck was examined at the defendant's premises on 20 January 2001 by the plaintiff's expert, Mr Manual Duarte, a truck mechanic.

The plaintiff repudiated the sale on 28 June 1999 by letter to defendant dated 28 June 1999. Summons was issued on 28 June 1999 out of the Vereeniging Magistrate's Court claiming return of the purchase price, damages and interest based on various causes of action. It was alleged that the latent defects included defective brakes, steering, problems with the turbo engine and later the differential. The vehicle was not as at 28 June 1999 registered in South Africa.

On 2 March 2001 the attorneys acting for the parties agreed that the truck might be re-sold by the defendant who re-sold it for R16 000.

There is no dispute in the pleadings and in the evidence that the vehicle in question did indeed suffer from latent defects and that its registration was not altered from that in Lesotho to one in South Africa. The evidence establishes these facts on a balance of probabilities. In my view the defects were of such a nature as to render the vehicle unfit for the purpose for which it had been purchased, namely the transport of heavy goods.

Mr van den Berg, who appears for the respondent in this matter, accepts that the law is as set out in Kroonstad Westelike Boere Ko-op Vereniging Bpk v Botha and Another 1964 (3) SA 561 (A) which case was followed quite recently in the case of Langeberg Voedsei Bpk v Sarculum Boerdery Bpk 1996 (21 SA 565 ISCA), namely that a dealer in goods who professes to have a special knowledge in the goods which he sells, is liable for damages arising from the latent defects and bears the onus of proving that such liability was expressly or by necessary implication excluded. Mr van den Berg submitted that although he accepted that his client professed to have special knowledge in the dealership of Opel vehicles, its expertise did not extend to Mercedes Benz vehicles.

It is interesting that in the case of Kroonstad Westelike Boere Ko-op Boere Vereniging v Botha reference is made over and over again to a merchant who sells articles of which he professes to have special knowledge. (See at 567A-H, 568A-G and 569B-H)

Holmes JA refers to Pothier's well-known work on Sale where Pothier refers by way of example to a cooper who deals in casks of wine. In the Langeberg Voedsel v Sarculum case, Hefer JA delivering the judgment of the court, refers with approval to the Kroonstad Westeh'ke Boere Ko-op Vereniging Bpk v Botha case and says at 563F: "Die reel is neergele dat 'liability for consequential damage caused by latent defects attaches to a merchant seller who was unaware of the defect where he publicly professes to have attributes of skill and knowledge in relation to the kind of goods sold".

Nowhere is there any reference in these two cases to there being a distinction between articles and brand names or models. In my view it is therefore clear that the defendant in the court a quo bore the onus of alleging and proving the exclusion of the implied warranty against latent defects.

The defendant relied upon an alleged written agreement (which it claims became lost or stolen) in terms of which the liability for latent defects was excluded. Messrs Robeiro and Costa who gave evidence for the plaintiff convincingly denied that there was no written agreement. The evidence of Messrs Turner and Alberts, who gave evidence for the defendant that the written agreement became lost or was stolen, is unconvincing. In my view the defendant has therefore failed to discharge the onus.

It is clear that the defendant was a dealer in motor vehicles and therefore the defendant attracts the liability for consequential damages consequent upon the latent defect.

In the appeal the plaintiff is claiming simply repayment of the purchase price of R37 000 together with interest thereon from the date of the request of further particulars dated 19 July 1999 together with costs, including the qualifying fees of the expert witness, Manual Duarte.

During the course of argument Mr Diskin, appearing for the appellant, submitted that the appellant should in addition succeed in obtaining judgment for R5 500,00 which was spent on repairs to the vehicle by the plaintiff. This amount has not been claimed at any stage and it is far too late in the day now to consider this claim.

Nevertheless, I am satisfied that the plaintiff should succeed in obtaining repayment of the purchase price of R37 000 together with interest from 19 July 1999 and costs.

I propose that the following order be made:

1. The appeal is upheld with costs.

2. The order of the court a quo is set aside and the following is substituted therefor:

"(a) The defendant is to pay the plaintiff the sum of R37 000.

(b) The defendant is to pay the plaintiff interest on the aforesaid sum of R37 000 at the rate of 15,5 per annum from 19 July 1999 to date of payment.

(c) The defendant is to pay the plaintiff's costs of suit including the qualifying fees of the expert, Mr Manual Duarte. JQFFE, J: I agree, it is so ordered.

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