HIGH COURT OF SWAZILAND
OSTERGETEL 1st Defendant
MOTORS (PTY) t/a AUTOSTAN 2nd Defendant
S.B. MAPHALALA – J
the Plaintiff MR. J.S. MAGAGULA
the Defendant Advocate P. Flynn (Instructed by Robinson Bertram)
Plaintiff seeks an order cancelling a contract of sale entered into
between himself and the 1st Defendant during January 2000; repayment
of the purchase price of E36,
interest on the said sum of E36, 000-00 at the rate of 9% per annum
calculated from the 26th January 2000, to final date of payment;
damages in the sum of El, 449-99 together with interest thereon at
the rate of 9% per annum calculated from the date of judgment to
final date of payment; and costs of suit on attorney and own client
Plaintiff alleges in his Particulars of Claim as follows:
Upon or about the 19th January 2000, Plaintiff and 1st Defendant
entered into a verbal agreement of sale in terms of which Plaintiff
bought from 1st Defendant a motor vehicle, to wit, a Volkswagen
Microbus registered SD 616 YM, for an amount of E36, 000-00 which
Plaintiff paid in full on the 26th January 2000.
At all material times Plaintiff was represented by his wife Cordelia
Dzeliwe Dlamini (nee Hleta) and the 1st Defendant was represented by
the 2nd Defendant which he had appointed as his agents and were
actually in possession of the motor vehicle. The 2nd Defendant was
itself represented by its salesman Nqaba Dlamini when the sale was
Although the motor vehicle was sold as a second hand, the 2nd
Defendant specifically represented that the motor vehicle had been
fitted with a new engine, which had done only 21000 kilometres having
been fitted during 1999. It was on the strength of this
representation that the Plaintiff bought the motor vehicle and was
agreeable to the purchase price of E36, 000-00.
Plaintiff however later established after the engine totally failed
to perform well that it actually had been fitted into the motor
vehicle about five years earlier, a fact which was not denied by 2nd
Defendant when confronted by the Plaintiff.
There was therefore fraudulent misrepresentation on the part of the
Defendants and which misrepresentation was material and entitles the
Plaintiff to cancellation of the agreement and a return of the
purchase price as well as damages suffered as a result of the
That the engine totally failed is common cause as this fact was later
specifically admitted by the 2nd Defendant. The Plaintiff promptly
returned the motor vehicle to the 2nd Defendant, which is still
keeping it to date hereof, demanding that it be fitted with a new
engine as per 2nd Defendant's representation failing which he should
be refunded the purchase price. The Defendants have not done either.
As a result of the fraudulent sale the Plaintiff has suffered damages
in the form of repairs to the motor vehicle to the tune of El449-99.
The Defendants are accordingly indebted to the Plaintiff as follows:
Return of the purchase price E36,000-00
Damages E 1,449-99
Despite due and lawful demand having been made the Defendants fail
refuse and/or neglect payment thereof.
Plaintiff applied for summary judgment which was refused by the court
on the 16th November 2001, with costs. The matter was referred to
trial. The Defendants affidavit resisting summary judgment was
converted to a plea. The defence advanced therein is found at
paragraphs 6 to 13; thus: ad the merits
It is clear from the afore-going that the Plaintiff has
insurmountable difficulties in limine and the application for summary
judgment application should be dismissed with costs. In so far as it
is necessary to set out the merits of the plaintiff's defence; I set
out same hereunder,
I deny that there was any misrepresentation, fraudulent or otherwise,
made by either myself or the second Defendant to the Plaintiff and I
put the Plaintiff to the proof thereof.
The Plaintiff purchased the motor vehicle voetstoots with any and all
defects from the second Defendant acting on behalf of first Defendant
on the 26th January 2001.
It was fully explained to the Plaintiff and/or his agent Cordelia on
the day in question and subsequently as more fully appears from
annexure "FO1" hereto that the vehicle was purchased on any
"as is" basis and that no warranty of whatsoever nature was
given to the Plaintiff and/or his agent by any of the Defendants, The
communication was in accordance with the mandate given to the second
Defendant by myself as more fully appears from annexure "FO2"
The Defendant and his wife and agent Cordelia inspected the motor
vehicle and further test-drove it prior to delivery and they fully
were satisfied with the condition in which the vehicle was. In fact,
the second Defendant then subsequently arranged a meeting between
myself and the Plaintiff in order for me to explain the functions,
mileage, engine and the history of the vehicle to him and his agent.
This was all done and the Plaintiff subsequently took delivery of the
I re-iterate that the vehicle was sold to the Plaintiff on an "as
is" basis, it being a second hand vehicle and further that at no
stage whatsoever did I ever give a warranty that the vehicle would
not give any trouble. Sometime after delivery, the Plaintiff returned
the motor vehicle to the Defendant requesting that the second
Defendant investigate an oil leak. The second Defendant duly checked
the vehicle, attended to fault and returned the vehicle to the
Plaintiff duly repaired.
After a considerable period of time, the Plaintiff acting through his
agent brought the vehicle to the second Defendant indicating that the
vehicle had an engine noise. The second Defendant, although it was
not obliged to do so, investigated the cause of the engine noise and
at its own cost repaired the engine by replacing the crankshaft at a
cost of approximately E5, 000-00 (five hundred emalangeni).
The Defendants avers that despite the fact that the vehicle was sold
by the Plaintiff voetstoots both the Defendants have more than
discharged their obligations to the Plaintiff and as such tender the
vehicle to the Plaintiff which vehicle is available for collection at
the second Defendant's premises by the Plaintiff.
chronicle of the evidence
the matter came for trial the Plaintiff led the evidence of only one
witness. The witness called is plaintiff's wife one Cordelia Dzeliwe
Dlamini. She presented a lengthy account of what she knew pertaining
to this case. She was in turn cross-examined at length by counsel for
Defendant led two witnesses. The first witness was one Fred
Ostergetel who is the 1st Defendant in this case. The second witness
for the Defendant was one Nqaba Dlamini who was a Salesman of the 2nd
Defendant at the material time.
to the evidence of PW1 Cordelia Dlamini, she told the court that she
was involved in the purchasing of this motor vehicle which is the
subject-matter of this case. She told the court that her husband
called her to come to the 2nd Defendant premises. She proceeded as
requested where she found her husband and one Swazi male who
represented the seller. They then went to inspect the motor vehicle.
The seller told them that the motor vehicle had a new engine. She
enquired from the seller as to how he can tell that the motor vehicle
had a new engine. The seller showed them the mileage, which was
21,000kilometres at that time. She and her husband
agreed to buy the motor vehicle on the s strength that it had a new
engine. She then proceeded to her place of work where she obtained a
bank cheque for the sum of E36, 000-00 and paid Autostan (the 2nd
Defendant). The following day they had the motor vehicle but it was
not long when they had trouble with it. The engine started leaking
oil. For this they took it to Cooper Motors where they had to buy
certain parts for it. The parts were fitted but after some time it
started leaking oil from the engine.
told the court that at this juncture they took it back to Autostan.
They were advised to take the motor vehicle for service. They took it
back to Cooper Motors where a certain mechanic effected repairs on
it. However, the oil did not stop leaking from the engine. At some
point the motor vehicle stopped and it had to be towed to Cooper
Motors. The mechanic worked on the motor vehicle and then told them
that the engine was too old and that it cannot be repaired. With this
information they then went back to Autostan. Autostan did not agree
with the fact that they had returned the motor vehicle back to them.
They then asked for their money back as they had only had the motor
vehicle for a month. The Defendants refused to refund them the
purchase price. Thereafter, followed a tit for tat between the
parties culminating to the present suit.
cross-examination it emerged that her husband who is the Plaintiff in
this matter was out of the country in Hong Kong when this matter was
heard. It was put to her that her husband prior to the sale was told
that the motor vehicle had been fitted with a reconditioned engine.
She told the court that she is not aware of this.
was further put to her that the motor vehicle was sold "voetstoots"
in which she said she did not know this aspect of the matter. She
maintained though that what she knew is that the motor vehicle had a
also told the court under cross-examination that she was not aware of
a meeting between her husband and the 1st Defendant.
evidence of the Defendants came from the 1st Defendant. He told the
court that when the vehicle was sold it had a reconditioned engine
which was fitted in 1990. He
the court that he had meetings with the Plaintiff where he advised
him that the motor vehicle had a reconditioned engine.
witness was quizzed as regards the endorsement in exhibit "B"
being the receipts given to the Plaintiff when he purchased the motor
vehicle that "microbus 2.1 with new engine". He told the
court that he never told the Salesman one Austin that the motor
vehicle had a new engine.
Defendants then called DW2 Nqaba Dlamini who is a salesman at
Autostan. He told the court that Plaintiff came to the shop and liked
the motor vehicle which is the subject matter of this case. The
Plaintiff asked to test-drive the motor vehicle. They then went to
1st Defendant who was the owner of the motor vehicle. The 1st
Defendant told him all the particulars of the motor vehicle. More
importantly that he was selling the motor vehicle "voetstoots ".
After Plaintiff had test driven the motor vehicle he expressed an
interest to buy the motor vehicle. The following day he paid for the
motor vehicle using a Swazi Bank cheque.
witness was the author of exhibit "B" and testified what he
meant by "new engine" in which he replied that he meant the
motor vehicle had a "reconditioned < engine ". He told
the court that the Plaintiff was told before he purchased the motor
vehicle that it was fitted with a "reconditioned engine ".
witness was cross-examined searchingly by Mr. Magagula for the
Plaintiff when he testified that he made a mistake by not writing,
"reconditioned engine". He further testified that he was
present when the 1st Defendant explained to the Plaintiff about the
motor vehicle. He also told the court that the reason they repaired
the motor vehicle is because they were merely assisting a "customer".
They were not obliged to do so.
Magagula for the Plaintiff filed very comprehensive Heads of Argument
in this matter. It is contended for the Plaintiff that the Defendants
represented that the motor vehicle, which is the merx, was fitted
with a new engine. This was stated both
and in writing on the receipt acknowledging payment of the purchase
price. Defendants actually admit making this representation save that
they now prefer the term "reconditioned engine " than the
term "new engine " (per paragraph 6.2 of plea and paragraph
3 of exhibit "A"). The Plaintiff argues that this
representation was actually false as the engine totally failed to
perform and the Plaintiff, after being advised by a mechanic from a
reputable garage that the engine was too old, returned the motor
vehicle to the Defendants and demanded a return of the purchase
is contended for the Plaintiff that the Defendants admitted that the
engine was actually fitted into the motor vehicle some years ago and
it was not true that it had been fitted with a new or reconditioned
engine for that matter. Therefore, the Defendants admitted that there
was a misrepresentation on a material term of the contract. This
entitles the Plaintiff to rescission of the contract and a return of
the purchase price plus damages.
the defence that the Plaintiff bought the said motor vehicle
"voetstoots" that this is denied by the Plaintiff and this
is corroborated by the fact that Defendants subsequently repaired the
motor vehicle at a cost of E5, 000-00. Had the sale been "voetstoots"
Defendant would not have accepted and repaired it after delivery to
the Plaintiff. Even assuming that such "voetstoots"
condition was in existence, it is trite law that where there is
misrepresentation, a "voetstoots" condition cannot be of
any assistance to the Defendant. In regard to this proposition the
court was referred to the legal authority of G. T.A. Gibson, S.A.
Merchantile & Company Law (4th ED) page 78.
Flynn for the Defendants argued au contraire that it was imperative
that the Plaintiff gives evidence in this case because the
discussions between him, Mr. Ostergetel (the Principal) and Mr,
Dlamini (the Salesman) were crucial to what later transpired.
Essentially, what is contended in this regard, is that what happened
before Mrs. Dlamini came with the cheque to pay is highly relevant
because it indicates what the knowledge of the Plaintiff was at the
time the purchase was made.
Flynn argued that the contract was not concluded when plaintiff's
wife made the payment by cheque but the representation which were
made to the Plaintiff. "The essential element that must be
alleged and must be proved is that the representation induced the
Plaintiff to enter into the agreement. If, indeed the Plaintiff had
knowledge of something which calls into question any representation
that would have been made by the salesman at the time Mrs. Dlamini
paid the cheque. In this regard the court was referred to the case of
Harvey's Investment Trust vs Oranjegezicht Estates 1958 (1) S.A. at
page 479 at 485 to the proposition that the onus of proof rest
throughout on the Plaintiff.
regards to the 2nd Defendant it was contended by Mr. Flyrnn for the
Defendants that there are technical difficulties in regard thereto
Autostan took the 1st Defendant to the Plaintiff and disclosed every
aspect of the matter. The Plaintiff has failed to rebut the evidence
before court. Firstly, in this regard it is contended that Mr.
Ostergetel said that he assisted in giving the history of the motor
vehicle to the Plaintiff. Secondly, when Mr. Dlamini (the salesman)
was asked about exhibit "B" he said in cross-examination
that the buyer (Mr. Dlamini) has been told that the motor vehicle has
been fitted with a reconditioned engine. These two points have not
been rebutted by the evidence of the Plaintiff.
the issue of "voetstoots " it is contended for the
Defendant that Mr. Ostergetel told Mr. Dlamini (the Plaintiff) that
the motor vehicle was sold "as is" and this has not been
court's analysis and conclusions thereon.
following matters are common cause; that Plaintiff and 1st Defendant
entered into a contract for the sale of the motor vehicle in
question; that the purchase price was the sum of E36, 000-00; that
the Plaintiff paid the purchase price to the 1st Defendant in full
through the 2nd Defendant, that the Plaintiff returned the vehicle to
the Defendants and that the vehicle is currently in the custody of
the Defendants, and that the Defendants are presently keeping both
the motor vehicle and plaintiff's money.
facts that are disputed are firstly, that the vehicle had latent
defects and that its engine totally failed and secondly, that
Defendants represented that the vehicle had been fitted with a new
engine. The only defence advanced by the Defendants is that ' the
sale was "voetstoots". The other issue that there was any
misrepresentation, fraudulent or otherwise, made by 1st Defendant or
the 2nd Defendant to the Plaintiff is denied by the Plaintiff.
would appear to me that at the onset that is common cause that the
2nd Defendant acted as agent on behalf of the 1st Defendant as
gleaned from paragraph 5 of the plaintiff's Particulars of Claim. As
such, the 2nd Defendant incurred no personal liability and should not
have been cited in these proceedings, (see Jourbert et A1 The Law of
South Africa Vol. 1 paragraph 138 at page 130).
respect of the 1st Defendant's liability in this matter there is
clear and unrebutted evidence of the 1st Defendant that the Plaintiff
purchased the motor vehicle "as is" with any and all
defects from the 2nd Defendant acting on behalf of 1st Defendant on
the 26th January 2001. The 1st Defendant told the court and this has
not been rebutted by the Plaintiff who did not give evidence in this
court that 1st Defendant explained to the Plaintiff on the day in
question that the vehicle was purchased on an "as is "
basis and that no warranty of whatsoever nature was given to the
Plaintiff in a meeting prior to his wife coming with the cheque to
pay for the motor vehicle. This crucial aspect of the matter has not
been dislodged in evidence by the Plaintiff.
is also undisputed evidence, that the 2nd Defendant arranged a
meeting between the 1st Defendant and the Plaintiff in order for the
1st Defendant to explain the functions, mileage, engine and the
history of the vehicle to him and his agent. This was all done and
the Plaintiff subsequently took delivery of the motor vehicle. In
this regard I agree in toto with the submissions made by Mr. Flynn
that the representations made by either the 1st or the 2nd Defendant
to the Plaintiff prior to the cheque paid by
wife are crucial to determine whether any misrepresentation, either
fraudulent or otherwise was made. In the absence of rebutting
evidence from the Plaintiff himself on this aspect of the matter the
court with the evidence at its disposal cannot say that there was any
misrepresentation, fraudulently or otherwise, made by either the 1st
or the 2nd Defendant to the Plaintiff and it would appear to me that
has not discharged his onus in this regard. Malan J in Harvey's
Investment Trust (supra) held inter alia that the onus rests
throughout upon the Plaintiff to prove all the ingredients essential
to the success of his case including proof of a causal connection
between the misrepresentations and the damages claimed.
the Plaintiff in his Particulars of Claim has not averred that the
alleged misrepresentation was to the knowledge of the Defendant/s
false, and as such has failed to establish a cause of action, (see
Antler's Precedents of Pleadings at page 155).
the totality of the evidence before me, I find that the Plaintiff has
failed to prove his case for the relief sought and therefore the
action is accordingly dismissed with costs to include costs of
counsel in terms of Rule 68 of the High Court Rules.