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REPUBLIC OF NAMIBIAHIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISIONHELD AT OSHAKATI REASONSCase No: I 178/2016In the matter between:TOBIAS NDILIMEKE KUTUMBENIPLAINTIFFandSF AUTO CCDEFENDANT Neutral citation: Kutumbeni v SF Auto CC (I 178/2016) [2020] NAHCNLD 175 (15 December 2020)Coram:JANUARY JHeard:26 to 27 March 2018, 2 to 3 and 5 October 2018, 12 to 14 February 2020, 17 to 19 February 2020, 7 - 8 June 2020, 11 September 2020, 9 November 2020Delivered:9 December 2020Released: 15 December 2020Practice — Trial — Claim of plaintiff's case — Plaintiff claiming N$108 000 for unjustifiable enrichment of defendant – Not many of the facts in dispute – Principles, test and considerations restated – Claim dismissed with cost.The plaintiff sued defendant for N$108 000 claiming that defendant unjustifiably enriched himself. The plaintiff bought a brand new motor vehicle from the defendant. The motor vehicle started giving problems relatively not long thereafter whilst still on warranty. Eventually the engine of the vehicle seized. The defendant replaced the engine under the warranty. The second engine also gave problems. The defendant took the motor vehicle to its garage and repaired the defect. When the plaintiff enquired and wanted to collect his motor vehicle, the defendant informed him that the defect was caused by a non-genuine part in the vehicle in conflict with the terms of the warranty. Plaintiff was informed that the warranty lapsed and consequently he had to pay for the repair. The plaintiff testified, was cross-examined and thereafter closed his case. The defendant thereafter applied for absolution from the instance. This application was refused. Four witnesses testified for the defendant. Many of the facts in the matter are common cause. ______________________________________________________________________ORDER______________________________________________________________________ The claim is dismissed with costs on an attorney and own client scale.JUDGMENT______________________________________________________________________JANUARY J;Introduction[1]The plaintiff claims suffering damages in the amount of N$108 000 and interest on the aforesaid amount at the rate of 20% per annum from 20th July to the date of final payment. Further and or alternative relief. The defendant is opposing. The action stems from an agreement of sale transaction where the plaintiff bought a brand new Ford Ranger from the defendant in Grootfontein on or about 01st December 2012. The defendant was duly represented by its employee, Mr Ivan Hugo.[2]In the particulars of the plaintiff’s claim it is stated that he, acting in person and the defendant, duly represented by its employee, Iwan Hugo, entered into a written agreement of sale, in terms of which defendant sold to plaintiff a brand new Ford Ranger, 3.2 XLT 4 x 4 6A/T Double Cab 2012 model pick-up with VIN number AFAPXXMJ2PCY68568 on or about the 1st of December 2012.[3]The plaintiff testified during the trial. The defendant presented four witnesses who testified. They are Iwan Hugo, Stanley Pollman, Renier Koorts and Joseph Johannes Ellis.The background and pleadings (particulars of claim)[4] The written agreement consisted of two parts to wit;The tax invoice with number 3812, and;The Ford Motor Company of Southern Africa (Manufacturing) (Pty) Ltd Owner’s Manual including the New Vehicle Warranty[5]The plaintiff bought the motor vehicle for the purchase price of N$457 000 inclusive of Value Added Tax. [6]It was sold with:A 5 year or 120 000 warranty (excluding corrosion) valid for 48 calendar months or 120 00 kilometres whichever occurs first; 1 year or 20 000 kilometre Genuine Ford Accessory Warranty; and;5 year unlimited kilometre Corrosion Warranty.[7] The Ford Motor Company of Southern Africa (Manufacturing) (Pty) Ltd warranted plaintiff that it will during the New Vehicle Warranty period at its option:Repair, replace, exchange or adjust free of charge at a Ford Authorised Dealer and/or Ford approved Body repair Centre any surface paint and/or Ford Part, in the event that such surface paint and/or Ford Part is found to be defective under ordinary use and operation with Southern Africa provided that; the surface paint and or Ford Part had not become defective as a result or consequence of the owners failure to properly maintain, use or operate the vehicle in accordance with recommendations, capacity and operating instructions specified by Ford; to have the vehicle properly, regularly and punctually serviced in accordance with the service schedules specified for the vehicle by Ford; andthe vehicle is under reasonable circumstances delivered to a Ford Authorised Dealer for the carrying out of the required repairs as soon as possible after the need for such repairs become apparent.[8]Further that unless Ford expressly agrees otherwise, the New Vehicle Warranty will not apply to any defect in, or which is attributable to, or from the use of any modification made to the vehicle unless such modification has been made by, or at the direction of the or approved by Ford and; Without limiting the provisions of the New Vehicle Warranty, the New Vehicle Warranty will be rendered invalid and unenforceable under the following circumstances:Unauthorized modification of the vehicle;(b)Any vehicle which has been subjected to abnormal use or service; misuse, negligence, abuse, accidents, any competition or racing event;(c)Any vehicle which has been repaired or altered by any person and/or workshop other than an authorized Dealer or Approved Body Repair Centre;(d)Failure to use Ford Parts, lubricants and fluids.[9]Plaintiff claims and testified to the effect that he at all times complied with his obligations in terms of abovementioned agreement and in terms thereof.The evidence (plaintiff’s case)[10] Plaintiff testified that he first experienced problems that the vehicle did not want to ignite or start at about 15 000 km. Secondly he heard a tapping/knocking sound in the engine. Thirdly the engine seized.[11]It is common cause that the engine of the abovementioned motor vehicle seized when the odometer reading was at about 19 000 kilometres. The vehicle was still under warranty and it was binding on the defendant. The vehicle was repaired and they replaced the engine under their obligation of the warranty.[12] After the replacement of the engine the vehicle was still under warranty when the plaintiff again experienced problems with the new engine. He noticed smoke coming from the engine compartment whilst driving about 20 km from Tsumeb on his way to Windhoek. The plaintiff stopped and when he opened the bonnet there was oil all over the engine. He again contacted the defendant’s employee Mr Ivan Hugo. The vehicle was eventually collected and taken to the defendant’s garage.[13] The motor vehicle was repaired but to the plaintiff’s surprise the defendant claimed that plaintiff should pay N$108 000. The defendant claimed that a pipe on the engine was replaced with a foreign pipe which was not a genuine Ford part. The plaintiff does not know about the foreign replaced pipe. He claims that at all times he had prescribed services done by either the defendant or at an approved Ford Service Centre which is Northern Auto Repairs. At some stage Northern Auto repairs had to replace a burst pipe. The evidence indicates that that pipe was a genuine Ford part. It is a pipe other than the foreign pipe which is in contention.[14] The plaintiff denied that a pipe was replaced by him or on his instruction. The defendant alleges that the plaintiff ordered a specific part for the said Ford motor vehicle. When the plaintiff was informed that the part was not in stock apparently the plaintiff could not wait for it and drove off.[15] From the cross-examination of the plaintiff it appears that the defendant claims that the foreign non genuine pipe must have been replaced by the plaintiff or on his instruction. It seems that the cause of the engine problems are ascribed to the foreign pipe. Defendant claims that the non-genuine part caused the warranty to lapse. That is the reason why defendant claimed payment for the last repair of the motor vehicle. It is in dispute who or on whose instruction the foreign pipe ended up in the motor vehicle.[16]During cross-examination it was established that plaintiff had to pay N$103 666 to have his motor vehicle released. He was given a discount of N$5 183.35 and eventually paid N$98 483.50. He claimed N$108 000. [17]The plaintiff was extensively cross-examined. In cross-examination it appeared that many of the facts are common cause i.e. the agreement of sale; payment amount; warranty obligations; the seizure of engines and repairs done under the warranty etc. This application for absolution of the instance followed after the plaintiff closed his case. In my view one cannot in the circumstances conclude that there is no iota of evidence for a reasonable court not to decide in favour of the plaintiff.Defendant’s case[18]Iwan Hugo testified that he is the owner of S F Auto Grootfontein, a Ford franchise meaning the Defendant is the franchisee of Ford Motor Company of Southern Africa, Silverton Pretoria South Africa. He has been the owner of this franchise since July 2003. He read his witness statement into the record and the contents thereof will not be repeated herein. The witness, under oath, confirmed the correctness of the content of his witness statement.[19] He explained the difference between a warranty and a service plan as a “Warranty is something that Ford Motor Company in South African gives the client on all mechanical defects on motor vehicles in the period of four years or hundred and twenty thousand kilometres. The service plan is a complementary service plan included in the purchase price of the vehicle and the client can service his vehicle free of charge every fifteen thousand kilometres until the ninety thousand kilometres lapsed.[20]He testified that the verbal agreement reached telephonically between the Plaintiff and the Defendant to load the vehicle next to the road, collect and repair the Plaintiff’s vehicle constitutes the oral authorization. The signature of the tax invoice is the acknowledgment thereof with the Plaintiff’s signature on the tax invoice.[21]He confirmed that an invalid warranty will not affect the service plan and that the service plan stays intact for a period of five years or ninety thousand kilometres. He confirmed that the Defendant was fully reimbursed for labour on the first engine as per warranty claim. Ford Motor Company paid him for the replacement of the Plaintiff’s first engine. He confirmed that the vehicle was still under warranty until the non-genuine Ford part was discovered. The warranty as a result lapsed.[22]He testified that he showed the none-genuine Ford pipe to the Plaintiff on 20 July 2015 when the Plaintiff came to collect his vehicle. He further Whatsapped the photos of the pipe to the Plaintiff. He testified that the Plaintiff was informed that the engine ceased because of this none genuine Ford pipe. The witness described the non-genuine Ford pipe that was found in the Plaintiff’s vehicle.[23] He compared it to a genuine Ford pipe in court that should have been in the Plaintiff’s vehicle. The non-genuine Ford part was fitted with hose clamps whereas with the genuine part it is a factory fitted release clamp. The root [angle] of the non-genuine Ford part is wrong and would have been forced into position on the engine. The non-genuine Ford part has yellow overspray on it which is over sprayed by a panel beater. That is an indication that it was over sprayed when a panel beater painted the vehicle. The number, *LCXWTPEPDKO11204 inscribed on the non-genuine Ford pipe is unknown.[24] This evidence was confirmed by Renier Koorts and Joseph Johannes Ellis, both qualified mechanics. The foreign pipe was thicker and was cut skew on the bend whereas a genuine Ford pipe is cut straight.[25]The defendant’s witnesses explained with a very good example what happened to the Plaintiff’s vehicle as a result of the non-genuine Ford pipe. The engine is like a pressure cooker. If the rubber band does not fit perfectly and the steam continues to escape, the motor vehicle loses water inside the cooler and the engine will overheat. The steam gradually escaped until there was no water as a coolant left in the cooler.[26]Hugo testified that, to his knowledge, a vehicle will only be able to drive 500 – 1000km with such a non-genuine Ford pipe before the engine will start to give problems. This was confirmed by Renier Koorts, a qualified Ford Mechanic. Koorts further testified that the Plaintiff would not have been able to drive the 5047km difference between the 45 000km service and the odometer reading wen the second engine was replaced.[27]Hugo further testified that if there was no foreign part found in the Plaintiff’s motor vehicle the Defendant would have honoured the warranty and replaced the second engine free of charge. Ford Motor Company would have made payment of the costs to the Defendant. He explained the audit process and the sanctions that can be imposed, including losing the dealership, if the Defendant was found to submit a fraudulent warranty claim and confirmed that it is not worth his business and reputation to risk a fraudulent warranty claim because of the non-genuine Ford pipe found in the Plaintiff’s vehicle. This was confirmed by Renier Koorts.[28]Stanley Pollman testified that he is a salesman employed by the Defendant and has been employed there for approximately fifteen years. He read his witness statement into the record with amendments thereto and the contents thereof will not be repeated herein. He testified that the Plaintiff telephonically contacted him and asked whether the car is still with them and upon the witness confirming that the car is still with the Defendant, the Plaintiff told him to “just fix my fucken car, I need my car fixed”. He relayed this message to Mr Iwan Hugo. This was confirmed by Iwan Hugo during his testimony. The witness understood this message to mean that the Plaintiff’s car should be fixed as he wanted his car.[29]Renier Koorts testified that he is a mechanic / workshop foreman employed by the Defendant and has been employed there for approximately sixteen years. He is a qualified mechanic and holds a Level 3 master technician qualification from Ford. He read his witness statement into the record and the contents thereof will not be repeated herein. The pipe replaced by Northern Auto Repairs on 10 March 2014 with part number AB397890CE is an oil cooler or water hose that takes water to the gearbox oil cooler. The part number has been superseded to a new part number AB397890CG, because as Ford Motor Company develops newer pipes they adjust the number. The Ford pipe with number AB397890EB is not the same pipe as was replaced by Northern Auto Repairs. [30]The witness testified that when the Plaintiff’s vehicle arrived at the Defendant’s premises he inspected it and suspected a water pipe that wore down and told the warranty department to get the VIN number. He told them process the claim and that he will come and show them the water pipe for the warranty. After he took out the pipe, he saw it was a non-Ford part, he told the warranty department to stop the claim.[31]He confirmed that he found the non-genuine Ford pipe on the Plaintiff’s engine. He confirmed that the Defendant definitely did the 60 000km service of the Plaintiff’s vehicle.[32]Joseph Johannes Ellis testified that he is a qualified diesel mechanic employed by Northern Auto Repairs in Oshakati and has been employed there for approximately nine years. He read his witness statement into the record with amendments thereto and the contents thereof will not be repeated herein.[33]The 45 000km service was done at Northern Auto Repairs on 8 July 2014. No pipes were replaced then. After the 45 000km service later in 2014 at a date unknown to the witness, the complainant came to Northern Auto Repairs and wanted the replacement of a pipe. The pipe was not in stock. The part number of the pipe to be replaced was AB397890EB. When the plaintiff was informed that the pipe had to be ordered from Windhoek, he replied that he cannot wait and drove off. He never returned to have the pipe replaced. Northern Auto did not put the foreign pipe in the plaintiff’s motor vehicle.[34]Northern Auto did most of the services on the plaintiff’s vehicle. The timeline of events is common cause. Ellis confirmed it also as correct it reflects as follows:The timeline of events is as follows:DateOdometer readingEntity who worked on Plaintiff’s vehicleDescription of work done26/03/201315 516kmDefendant15 000 km service19/06/201319 032kmDefendant1st Engine replaced17/10/201329 387kmNorthern Auto Repairs30 000 km service27/02/201438 501kmNorthern Auto RepairsHose pipe replaced with part number AB397890CE.08/07/201445 165kmNorthern Auto Repairs40 000 km service and samp plug replaced11/12/201450 221kmDefendant2nd Engine replaced20/07/201550 221kmN/APayment made by Plaintiff to Defendant20/10/201557 898kmDefendant60 000 km service08/09/201676 389kmNorthern Auto Repairs75 000 km service15/12/201690 000kmNorthern Auto Repairs90 000 km service [35]The issues of fact to be resolved during the trial are the following, as per the Pre-Trial Order dated 26 June 2017: 1.Whether the Plaintiff’s vehicle was still under the new vehicle warranty;2.Whether the Plaintiff has complied with the Warranty conditions;3.Whether or not the Plaintiff was responsible for the damage to the engine of the vehicle;4.Whether the Plaintiff was liable for payment of the removal and replacement of the Plaintiff’s vehicle’s engine;5.Whether the Defendant has been enriched at the Plaintiff’s expense in the amount of N$ 108 000.00.No issues in law are in dispute[36]The following documents and photos were handed up as exhibits, forming part of the Discovery Bundle with page numbers marked in pink and the Court Record [it is indicated when page numbers refer to the Court Record]:36.1Exhibit A:Page 6:Tax Invoice 3812Discovered by Plaintiff36.2Exhibit B:Page 24 - 40:Warranty GuideDiscovered by Plaintiff36.3Exhibit C:Page 61 - 64: Partial Warranty GuideDiscovered by Defendant36.4Exhibit D:Page 65:Ford Motor Company of SA Tax InvoiceDiscovered by Defendant36.5Exhibit E:Page 66:Warranty Claim FormDiscovered by Defendant36.6Exhibit F:Page 67:Northern Auto Repairs Job Card 17885Discovered by Defendant36.7Exhibit G:Page 69:Northern Auto Repairs Invoice CA117333Discovered by Defendant36.8Exhibit H:Page 70:Novel Motor Company Sublet OrderDiscovered by Defendant36.9Exhibit J:Page 71:Novel Motor Company Invoice Discovered by Defendant36.10Exhibit K:Page 72:Northern Auto Repairs Credit Note 74Discovered by Defendant36.11Exhibit L:Page 73 – 78:Northern Auto Repairs Documents – 45000km serviceDiscovered by Defendant36.12Exhibit M:Page 80 – 81:Job Card & Invoice 28655Discovered by Defendant36.13Exhibit N:Page 109:Vehicle Enquiry SheetDiscovered by Defendant36.14Exhibit O:Payment documentation: Page 11:Cheque Counter Foil dated 20/07/2015 for N$ 108 000.00Discovered by PlaintiffPage 82:Deposit slip dated 20/07/2015 for N$ 98 483.50Discovered by DefendantPage 83:Receipt dated 20/07/2015 for N$ 98 483.50Discovered by Defendant36.15Exhibit P:Page 67 – 71:Plaintiff’s Witness StatementAs per Court Record36.16Exhibit Q:Page 110 – 113:Photos of non-genuine Ford PipePage 114:Photo of non-genuine Ford Pipe next to original Ford PipeDiscovered by Defendant36.17Exhibit R:Item:Non-genuine Ford PipeDiscovered by Defendant36.18Exhibit S:Item:Genuine Ford Pipe with number AB39789EBDiscovered by Defendant36.19Exhibit T:Page 84 – 107:Other documents relating to vehicleDiscovered by Defendant36.20Exhibit U:Page 43 – 49:First engine replacement documentsPage 50 – 55:Second engine replacement documentsDiscovered by Plaintiff36.21Exhibit V:Page 37 – 42:Witness Statement of Iwan Hugo on behalf of DefendantAs per Court Record36.22Exhibit W:Page 79:Ford Motor Company Tax InvoiceDiscovered by Defendant36.23 Exhibit X:Not paginatedWitness Statement of Stanley Pollman on behalf of Defendant36.24Exhibit Y:Page 47 – 50:Witness Statement of Renier Koorts on behalf of DefendantAs per Court Record36.25Exhibit Z:Page 108:Diagram of genuine Ford Pipe with number AB397890CG (previously AB397890CE)Discovered by Defendant36.26Exhibit AA:Page 43 – 46:Witness Statement of Joseph J Ellis on behalf of DefendantAs per Court RecordThe law[37] The trite approach in trial proceedings is that litigants formulate their cases to identify and define the issues on which evidence they must lead in their pleadings. The purpose of pleadings is to bring to the attention of the court and the parties in an action the issues on which they will rely.‘Pleadings are designed to mark the exact boundaries of the issues that the court will be required to determine at trial. Therefore parties are required to plead their respective cases fully and concisely so as to leave the opponent and the court in no doubt as to the exact nature and scope of the case and the evidence that may be required to establish the claim or the defence as the case may be.’[38]This Court needs to decide whether on all evidence and probabilities and inferences, plaintiff discharged his onus of proof on the pleadings on a preponderance of probability. In action proceedings, the fact finder must always be guided by two things: the burden of proof and the pleadings. The burden of proof is the guiding light in deciding in whose favour the decision goes if the probabilities are evenly balanced. It is trite that he who alleges must prove.[39] The applicable rule is that in finding facts or making inferences in a civil case as this, I must balance probabilities and select a conclusion which is more natural or plausible from several conceivable conclusions although it may not be the only reasonable one. [40]Where the direct evidence overwhelmingly establishes a fact one way or the other, there is no room for speculating about the probabilities. As Mtambanengwe AJA stated:‘It goes without saying that once the evidence proves or disproves something one does not seek to establish that fact on probabilities as the necessity of resorting to probabilities is to establish the truth when there is no direct evidence to achieve the same result’.Evaluation[41]I have dismissed the application for absolution from the instance because I was of the view that the plaintiff on his evidence made out a prima facie case. In that application, I did not make a credibility finding. The principles after the defendants testified in the main trial is different. I now have to consider credibility, probabilities, circumstances and/or direct evidence.[42]I find that the plaintiff was not a credible and honest witness. There were clear contradictions throughout his evidence. At some stage he straightforward refused to answer questions or gave vague and evasive answers. An example of the wrong amount claimed is an example of plaintiff’s dishonesty. The plaintiff testified that he was the only driver but it later turned out that his wife also drove the motor vehicle. The plaintiff authorised repair of his motor vehicle and signed a tax invoice undertaking that it will be at his expense. In my view, by signing the tax invoice the plaintiff found himself bound to remunerate the defendant for the repair of the motor vehicle as per the agreement.[43]Plaintiff’s legal representative in her opening address stated that the foreign pipe was not in plaintiff’s motor vehicle. It was stated that the so-called non-genuine pipe was raised because the defendant realized that they are losing a lot of money in the name of the plaintiff. Plaintiff in his evidence went so far as to accuse the defendant or someone of fraud. During evidence, it became apparent that the defendant would not have lost any money if they had replaced the second engine under the warranty. The defendant would have been compensated by Ford Motor Company of Southern Africa Pty Ltd.[44]The onus to make out a case on a balance of probabilities on unjustified enrichment, that the foreign pipe was installed by the defendant and/or fraudulently alleged to have been installed is on the plaintiff. [45]I do not agree with the submissions by plaintiff’s counsel that the defendant bore the onus to: Show that the Plaintiff inserted the non-genuine Ford pipe on the engine; Prove that it was entitled to receive payment and;Prove that the Plaintiff breached Clause 2 of the warranty agreement. [46]There is no onus on the Defendant to show or prove anything. It is the Defendant’s duty to place a more probable version before this Honourable Court. The witnesses for the defence corroborated each other on material aspects on the issues in dispute. [47]The onus is on the Plaintiff to prove his claims on a balance of probabilities. The Plaintiff must thus prove that: He suffered damages as a result of the Defendant’s breach of the agreement [main claim]; The Defendant was enriched at the Plaintiff’s expense [alternative claim].Conclusion[48] On the evidence, I cannot and do not make a decision as to who was responsible installing the non-genuine Ford pipe. However, the plaintiff did not prove a case on a balance of probabilities to find in his favour. I find the defendants’ case more probable. [49]In the result:The claim is dismissed with costs on an attorney and own client scale._____________________ H C JANUARY JUDGEAppearances:For the Plaintiff:Ms A SamuelOf Samuel Legal Practitioners, OngwedivaFor the Defendant:Ms W HornOf W Horn Attorneys, Oshakati ................
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