South Africa: High Courts - Gauteng

(TRANSVAAL PROVINCIAL DIVISION) , I

16/10/2006

Case No: 32759/2004

NOT REPORTABLE

In the matter between:

DINEO CATHERINE BOME

and

CITY OF TSHWANE METROPOLITAN

Defendant 1 Respondent

MUNICIPALITY

JUDGMENT

MABUSE A.J [1]. In this action the plaintiff has issued summons against the

defendant and claimed payment of total amount of R200120. This matter is

defended. I must remark that the commencement of this matter was bedevilled

by several hiccups of which chief among them was the failure by both parties to

12...hold

hold a proper pre-trial conference and to present to court proper pre trial

minutes. As a consequence of this failure and furthermore the unavailability of

an interpreter, this matter could not commence on the first day as scheduled.

The parties were ordered to go and hold such a pre-trial conference and submit

proper pre-trial minutes the following day. This exercise did not yield the

desired results.

2. The plaintiff testified in the matter and called no witnesses. According to her

testimony, on the 7th July 2004 (" the relevant date"), and at the defendant's

Soshanguve offices, she bought pre- paid electricity units with her own

electricity charge card. During her testimony she produced the relevant charge

card and testified further that it was a card that she used to purchase electricity

units on the relevant date. She was given or given back a card and a receipt in

respect of the electricity units that she bought. She did not immediately peruse

the receipt and the charge card as she assumed that everything was in order.

Even after she arrived at her house, she did not immediately recharge her

electricity.

3. Later the same day, she tried unsuccessfully to recharge her electricity. When

this occurred she contacted the defendant's technicians who called at her house

/3 after

after 30 minutes. On their arrival they asked for the recharge receipt she had

received on that day. They too tried but in vein to recharge her electricity. They

went outside to the metre box and checked it. On their return they tried again to

recharge electricity but they failed. They then asked her to show them an old

recharge receipt which she did. After they had compared the two recharge

receipts, they told her that the units that she bought on that day were not for her

metre box. They also showed her differences between the two receipts.

4. She went back to the defendant's offices to inquire about the recharge receipt.

It was also confirmed there that the recharge units she have received on the

relevant date were not for her metre box but for someone else who stayed in

block "KK", Soshanguve. She was advised to sell the units to the person whose

details appeared on the relevant receipt. She tried but did not succeed. The

relevant receipt is number 63274. The name that appears on relevant recharge

receipt is ME MS Tsotetsi and the metre number is 07033208971. It was issued

on Wednesday the 7th July 2004 at 14:14.31. The value of the recharge units

was R100.00.

5. The charge card that she had on 2004 when she purchased the units in Akasia

looked like the one that she had and exhibited to the court during the testimony.

-4...she

She did not suspect, on the relevant date, that when she purchased electricity

units at Soshanguve, they would return a wrong card to her. The only time she

realised that her card was wrong was when she tried to punch in the recharge

numbers. Suffice to mention that the number on a charge card that she produced

in court was 07033208971.

6. Because she was unable to recharge electricity, her power became ultimately

exhausted. To illuminate her house she used candles and to cook she used

paraffin stove. All these inconvenienced her greatly and furthermore gave her

neighbours an impression that she was irresponsible. Her children had to use

candles to do their school work. The paraffin stove presented a nauseous stench

and as a result they had to sit outside or open the windows and the doors in

order to let the stench out. This happened during winter.

7. The officers who sold her the recharge units were not co-operative. She

conceded that even without a charge card or by presenting an old recharge

receipt she could buy electricity units. She did not know ME MS Tsotetsi and

has never been to her house.

8. According to her summons, the plaintiff bought the electricity units at

-5...Soshanguve

Soshanguve on the relevant date by using charge card number 07033208971.

She confirmed her charge card number during both her evidence-in-chief and

under cross examination. She also confirmed that said card belonged to her. She

did not know how she came to be in possession of a charge card that, on the

relevant date, produced a recharge receipt with the particulars of a strange

person. She did not know where she got the charge card that she used on the

relevant date. She did not carefully watch the actions of the person who sold her

the electricity units on the relevant date. She could not with certainty testify that

her charge card was swopped, on that particular day or any other day, with

Tsotetsi's charge card. Furthermore she could not testify whether or not the

person who sold her the units manipulated the vending machine that produced

the receipt in dispute. The defendant closed its case without tendering evidence.

[8] The court was called upon to decide on the question of negligence on

either side. The duty, in our law, is upon the party who alleges to prove

the facts of his case on the balance of probabilities. No duty lies on the

defendant to disprove the facts on which his defence is based. In

addition the party that claims damages must also prove that he suffered

damages as a result of the defendant's negligent's action.

[9] Damages, in our law, are not merely awarded to a party simply

16...because

because there has been a breach of contract. It was the duty of the

appellant not only to allege that she suffered damages as a

consequence of the defendant's negligence but also to prove the

amount of loss or damages she has sustained as a consequence of the

alleged negligence. A party will not be awarded any damages, if she

cannot prove any. It is a principle of our law that where a plaintiff does

not succeed to prove the amount of damages he has sustained, no such

award of damages shall be made by the Court. In Pillay v Krishna and

Another 1946 A. D. 946 at p 951 the Court stated that:

"It consequently becomes necessary at the outset to deal with the

basic rules which govern the incidence of the burden of proof- the

onus probandi - for upon them the decision of this court must

ultimately rest. And it should be noted immediately that this is

matter of substantive law and not a question of evidence: Tregea and

Another v Godart and Another (1939 A. D. 16, at p 32).

Finally I wish to refer to the dictum of Van Winsen A. J. A. in Dominion

Earth Works v M. J. Greef Electrical Contractors 1970 (1) S. A. 228

(A) at p. 235, where he stated that:

-7..."The

"This approach is in accordance with the general rule that he who

claims must prove that he is entitled to what he claims:

[10] The plaintiff was unable to explain to the court where she obtained a

charge card that produced the recharge receipt that was given to her on the

relevant date. She cannot place evidence before court that it is the person who

sold her the electricity units on the relevant date to somehow mixed her card

and Tsotetsi' s charge card. She admitted during her evidence that she did not

pay much attention to what the person who sold her units did in the other side.

[12] It is impossible that her charge card could have produced the particulars

that did not belong to her. It is also impossible that her metre could have

rejected the recharge units that were purchased with the relevant card. In the

premises, it would appear that she had a wrong charge card. In my view the

plaintiff has failed to prove that the defendant's officers gave her a wrong

charge card. Her entire evidence did not satisfy the court that the defendant's or

its officials were negligent in any manner whatsoever.

[13] The defendant conceded that no proper pre-trial conference, as required by

the relevant rule 37 was held. As a consequence the court could not establish

readily what the issues between the parties were. The parties were invited by

the court to furnish reasons why the costs in respect of the holding of pre-trial

/8...conference

conference and the preparation of the pre-trial minutes should not be

disallowed. It is imperative that rules of court be adhered to strictly. As a

consequence of the parties' failure an undue delay was occasioned.

In the end I make the following order:

(a) The plaintiff's action is dismissed with costs.

(b) Costs shall be taxed on the appropriate Magistrate Court Scale.

(c) Costs in respect of the proceedings in terms of Rule 37 are disallowed.

MABUSE AJ

APPEARANCES

Plaintiff s Attorney

S N J LETLHAKA

Defendant's Attorneys

MOFOMME

Defendant's Counsel

ADV. E SElMA

DATE HEARD

2006.10.13

DATE DELIVERED

2006.10.16