HIGH COURT OF SWAZILAND
the matter between:
Plaintiff : Mr M. da Silva
Defendant : Ms L. Zwane
7th April, 2004
October 2001, the above-named Defendant sold a motor vehicle to the
Plaintiff for the sum of E18,000.00. The vehicle was described as a
1985 Toyota Bakkie, bearing registration number SD 544 KL, Engine
No.0650696 and Chassis No.YM 50-0042320. The pretium was paid and
delivery of the vehicle was effected in the same month of October
November 2001, the said vehicle was impounded by the South African
Police Services, on the suspicion that it was stolen and refused to
have same released. It was in appreciation of those facts that the
Plaintiff moved the present action in which it claimed cancellation
of the contract and restitutio-in-integrum, the refund of the
purchase price of E18,000.00 and costs of suit.
Defendant, on the other hand, in his Plea denied liability, averring
that the said vehicle was not stolen as it previously belonged to the
Government of Swaziland and that it had been impounded, investigated
and released by the Royal Swaziland Police in 1999. The Defendant
averred that the Plaintiff had no cause of action against him and
prayed for a dismissal of the claim with costs.
Plaintiff, in support of its claim, adduced the plaintiff's evidence,
which was to the following effect; That in October 2001, on a Friday,
the Defendant sold him the above described motor vehicle for El8,
000.00. The Plaintiff paid the pretium in cash but the vehicle was
not delivered there and then as the Defendant had to use if for
attending a funeral. Delivery was effected two days later on a
is the plaintiff's evidence that on delivery of the vehicle, he
demanded the blue book of the
but the Defendant promised to deliver it on the following day, when
he delivered the same eventually, the Defendant informed the
Plaintiff that the blue book was not in the former's name but
remained reflecting the name of the person who sold the vehicle to
the Defendant as the registered owner of the vehicle i.e. one Phineas
Defendant further informed the Plaintiff that the engine of the
vehicle was not the original one and had not been cleared by the
relevant authorities. The Plaintiff thereafter evinced the clear
intention of clearing the engine and the Defendant promised to
contact Simelane in that regard. When the Plaintiff contacted
Simelane subsequently, he found that the Defendant had not alerted
Simelane regarding the plaintiff's desire to clear the engine.
Simelane was alerted by the Defendant and Simelane signed the
relevant documents of transfer of ownership and which documents were
subsequently taken by the Plaintiff to the Central Motor Registry in
Mbabane. The Central Motor Registry however refused to transfer the
ownership of the vehicle to the Plaintiff on the grounds that the
vehicle had been fitten with a new engine and which fact necessitated
that the vehicle be taken to Oshoek Border Post for the clearance of
the engine and where certain documents would be given to the
Plaintiff reported his difficulties at C.M.R. to the Defendant,
whereupon the latter advised that it was not important for the
Plaintiff to take the vehicle to Oshoek because, the engine was
bought from Barnetts Auto Spares and the vehicle was in Swaziland. He
undertook to enquire from Barnetts on the necessity of taking the
vehicle to Oshoek in the meantime.
Defendant returned to the Plaintiff with a letter from the R.S.P.
Lobamba in which it was recorded that Barnetts Auto Spares is no
longer operating in Swaziland. The Defendant advised the Plaintiff to
submit this letter to the C.M.R. Notwithstanding that this letter was
submitted, C.M.R still refused to transfer ownership but insisted
that the clearance from Oshoek was a prerequisite and that that is
where newly fitted engines are cleared.
with this difficulty, the Plaintiff testified that he therefor took
the vehicle to Oshoek. On inspecting the vehicle the S.A.P.S.
enquired where the Plaintiff had obtained the vehicle from and he
informed them that it was from the Defendant. It was the plaintiff's
further evidence that he was advised by the S.A.P.S. to revert to the
seller and to ask for the purchase price as they were proceeding to
impound the vehicle. He was advised by the S.A.P.S that the tag on
the vehicle did not correspond with the chassis number, hence the
impoundment. He was further advised to remove any improvements
effected on the vehicle and he obliged.
unfortunate turn of events was reported by the Plaintiff to the
Defendant. The Plaintiff demanded his money back but the Defendant
retorted that he no longer had the money and that he had used it.
What the Defendant suggested was securing the services of an attorney
to recover the vehicle through the Courts. The Defendant suggested
Maphalala & Co., where they met Mr Maphalala, who after taking
instructions, instructed Mr Nzima, a Professional Assistant to
proceed to Oshoek.
Oshoek, Mr Nzima was giver, the same story as that told to the
Plaintiff. Nzima advised him that it was not possible, in the
circumstances to reclaim the vehicle and that the only remedy open
was to recover the purchase price. This intended line of action was
disclosed to the Defendant by the Plaintiff and the Defendant's
attitude was that the vehicle was so far as he was concerned, clean.
The Defendant at that point revealed that the said vehicle was once
impounded by the Big Bend R.S.P. for three months but released it
after completion of investigations.
Plaintiff concluded his evidence in chief by testifying that had he
known that the vehicle had been impounded before and that the blue
book did not reflect the seller's name and further that the engine
was not original before the conclusion of the sale, he could not have
entered into the contract with the Defendant.
cross-examination, it Was put to the Plaintiff that the blue book
reflected Simelane Samson and that ownership was therefor passed from
Phineas Simelane to Samson Simelane. This the Plaintiff vehemently
denied. It was his evidence that he intended to use Samson Simelane's
permit to conduct a for hire business with the merx and that the
change of ownership was not effected as the C.M.R., although they
inserted Samson's name refused to affix the Registrar's date stamp to
prove change of ownership in the absence of the clearance from
was further put to the Plaintiff that he could not have attempted to
register the vehicle in his or Samson's name because Phineas never
signed the necessary documents. The Plaintiff testified that Phineas
did sign the documents but they were in C.M.R's possession. It was
further put to the Plaintiff that the Defendant had told the
Plaintiff about the engine, the blue book and the impoundment before
the sale was concluded but this the Plaintiff vehemently denied,
insisting that these issues only came to light after the conclusion
of the agreement of sale.
Plaintiff was further taxed on why after the impoundment of the
vehicle at Oshoek, he went to demand the purchase price from the
Defendant without tendering the vehicle. In response, the Plaintiff
testified that he was labouring under the misapprehension that the
vehicle was in order and that the Defendant never warned him of
anything untoward regarding the vehicle and which if he had known
about, he would not have taken the vehicle to Oshoek. He further told
the Court that he was unable to tender the vehicle since it was
impounded and he could not secure its release.
it was put to him that the vehicle was clean that there was nothing
wrong with it. This the Plaintiff denied, reasoning that something
was indeed wrong with the vehicle and this was evidenced by a letter
from the S.A.P.S marked Exhibit "B" (whose contents will be
adverted to later in the course of this judgement) and the fact that
the vehicle was and remains in the custody of the Police.
Plaintiff closed his case. It was at this juncture that it became
evident that both the Defendant and his witness sat in Court
throughout the plaintiff's evidence in chief and cross-examination.
The effect if any of the Defendant's witnesses presence in Court will
be examined at the point of evaluating the evidence tendered by the
Defendant was the first witness to be called. He gave a lengthy
history of how he came to be in possession of the vehicle in question
in this action. The long and short of it is that he bought the said
vehicle from one Phineas Simelane after selling his sedan and
obtaining a loan from the bank to put up the purchase price which was
less than twelve months after he purchased the motor vehicle, the
vehicle was impounded by the Big Bend Police on suspicion that it was
stolen. It was detained for about three (3) months and underwent
investigations and tests by the local and South African Police. It
was thereafter released to the Defendant through an Order of Court
and he was told by the Police that there was nothing untoward with
the vehicle. The Defendant testified that after its release, he drove
to South Africa on numerous occasions and was satisfied therefor that
the vehicle was clean as it was regularly subjected to tests by the
South African Police.
was the Defendant's evidence that after being injured in a motor
vehicle accident, he was retired on medical grounds and needed to
supplement his income by selling the vehicle. He put up the vehicle
for sale and the Plaintiff showed a keen interest in purchasing the
vehicle but failed to raise the necessary cash initially. The
Plaintiff later raised the money unexpectedly and handed it over to
the Defendant, who could not immediately deliver the vehicle because
of a funeral, as aforesaid.
was the Defendant's evidence that when the Plaintiff came to effect
payment, he (Plaintiff) enquired about the earlier impoundment of the
vehicle by the Police to which the Defendant advised that the vehicle
was found to be clean, hence it was released back into his custody.
The Defendant further testified that he also handed the documents of
the vehicle to the Plaintiff i.e. the blue book to which was attached
a receipt in respect of the purchase of the engine. It was his
evidence that the new engine had already been fitted at he time the
purchased the vehicle.
Defendant further testified that the Plaintiff evinced an intention
to have the vehicle registered in his name as he wanted to use it for
business purposes. The Defendant undertook to assist in contacting
Simelane who sold the vehicle to him (Defendant) as he had not
changed the ownership from Simelane. It was the plaintiff's evidence
that the Plaintiff then went about changing the ownership of the
vehicle using unorthodox means.
Defendant confirmed that the Plaintiff informed him about the
difficulties he met at the C.M.R. and Oshoek regarding the clearances
and registration of the vehicle and its subsequent impoundment. The
Defendant's evidence was that neither he nor Simelane were involved
in the attempted registration.
the Plaintiff returned and demanded the purchase price, the Defendant
is on record that he was unhappy because of the unorthodox ways
employed by the Plaintiff in registering the vehicle, which were also
clandestine. It is the Defendant's evidence that he refused to repay
the purchase price because the vehicle was not tendered and the
Plaintiff did not contact him or Simelane immediately he encountered
difficulties in registering the vehicle as aforesaid.
Defendant testified that he was only persuaded to assist after the
plaintiff's parents intervened and requested him having understood
and accepted his explanation. He thereafter called the officer who
was investigating the earlier impoundment and the officer, Vakazu
Mdluli expressed surprise at the latest turn of events since the
vehicle had been found to be in order. Eventually, the offices of
Maphalala & Co. were instructed as testified by the Plaintiff.
The Defendant says he contributed E400.00 towards the opening of the
file with the attorneys.
conclusion, the Defendant asked the Court to call Simelane, who sold
the vehicle to him to explain and that if it becomes apparent that
the vehicle is not clean, to Order Simelane to repay his E22,000.00,
so that he could in turn pay the money to the Plaintiff.
cross-examination, the Defendant stated that he purchased the vehicle
in August 1997 and sold it in 2001. When taxed why he did not
register the vehicle in his name in the interim, he stated that there
was no pressure upon him to do so. Furthermore, it was his evidence
that Simelane was difficult to locate. The Defendant denied that the
Plaintiff did not know of the earlier impoundment after the vehicle
was detained in Oshoek. It was his evidence that the Plaintiff knew
about the impoundment as he used to take his vehicle for repairs with
the Defendant and actually asked about the impoundment before he
purchased the vehicle.
Defendant further denied as put to him that the issue of the new
engine only came to light after the failed attempt to register the
vehicle. It was further denied that the defendant initially refused
to assist the Plaintiff when the problems with the registration first
came to light.
Defendant also called Mahlokohla Phineas Simelane, from whom the
vehicle was purchased by the Defendant for E25,000.00. He testified
that after the sale, he gave the blue book to the Defendant which had
attached to it the receipt in respect of the new engine. Simelane
stated that he bought the engine from Barnett Auto Spares and had it
fitted to the motor vehicle.
was Simelane's evidence that after he sold the vehicle to the
Defendant, the latter came to report that it had been impounded, a
fact that took him by surprise because the vehicle was clean. The
Defendant however later reported that it had been released back to
him. Simelane confirmed that he did sign change of ownership
documents for the Plaintiff at the Defendant's behest but the process
was never completed. Simelane further testified that the vehicle is
clean and that he purchased it from Moses Motsa. It was his evidence
that he registered it in terms of the law and the Police checked it
before it was registered in his name.
cross-examination, Simelane stated that the Defendant never asked him
to sign the necessary documents for effecting change of ownership
into the Defendant's name and that he had no reason to refuse. He
testified that because he is a busy person, the Defendant possibly
did not find him. He further confirmed that he, signed the disposal
forms for the Plaintiff but the process was not completed as he
(Simelane), did not produce his identity document. It was his
evidence that it was the Plaintiff who informed him of the
impoundment at Oshoek and denied that the Defendant ever told him.
asked by the Court, Simelane testified that the Defendant did have
his (Simelane's) contact numbers and did eventually contact him by
telephone. The defence then closed its case.
Plaintiff although a simple and unsophisticated man, struck me as an
impressive witness. His story was clear, consistent and corroborated
in material respects by the defence, especially Simelane. He stood up
well to cross examination, exhibiting no signs of overheating. I was
persuaded to accept his evidence as credible and worthy of belief.
same cannot however be said of the Defendant. He proved to be evasive
in certain respects and his evidence in certain aspects collided head
on with that of Simelane, a witness called by him to corroborate his
story in all relevant and material respects.
find it necessary to highlight a few incidents which have compelled
me to make the assessment that I have of the Defendant as a witness.
the Defendant testified that the Plaintiff did not immediately
contact him or Simelane after the motor vehicle was impounded in
Oshoek. This is palpably false because the plaintiff's evidence in
that regard is very clear. Furthermore, the Plaintiff also finds
support in both the Defendant and Simelane's evidence.
Defendant further denied that he initially showed reluctance in
assisting the Plaintiff after the impoundment of the vehicle in
Oshoek. This is also explicitly false for the reason that not only is
the plaintiff's evidence in that regard clear but it goes against the
Defendant's own evidence in chief where he testified to an initial
reluctance to assist for the reason that the Plaintiff used
unorthodox means to register the vehicle and of which he (Defendant)
did not approve.
of the main reasons why the Defendant's story is highly suspect is
his failure to explain why he did not register the vehicle in his own
name immediately after its purchase in terms of the Road Traffic Act,
1965. His initial reason was that there was no pressure upon him to
do so. When told about the dictates of the law in that regard, he
immediately changed, alleging that he could not trace Simelane not
withstanding his attempts to do so.
is totally unconvincing because Simelane testified that the Defendant
never contacted him regarding the change of ownership and
furthermore, the Defendant did have Simelane's telephone number and
when the Defendant needed him, he called him on the telephone and
found him. There is evidence that on two occasions, the Defendant did
call Simelane i.e. when the Plaintiff wanted to register the vehicle
and when Simelane was required to come to Court to testify.
is inconceivable that the Defendant, who did not plead ignorance of
the law regarding the mandatory registration of vehicles could not
register the vehicle in his name for about four
The reasons he furnished are unconvincing and lead to the reasonable
inference that he knew that there was something untoward with the
vehicle. It is also clear that he dragged his feet in contacting
Simelane when the Plaintiff wanted to register the vehicle in his
name. Another eerie aspect is the plaintiff's uncontro verted
evidence that the Defendant attempted to dissuade the Defendant from
going to oshoek since the vehicle was local. What did the Defendant
stand to fear?
indicated above, there was a contradiction between the evidence
tendered by Simelane and that adduced by the Defendant. First, this
was in relation to the purchase price and to which I do not attach
much weight. It is a contradiction though. Secondly, it was in
relation to whether or not Simelane signed the transfer of ownership
forms. The Defendant said Simelane never signed these, thereby
casting aspersions on the Plaintiff, suggesting that he resorted to
clandestine and illegal means to register the vehicle. Simelane's
evidence was that he signed the necessary document, at the
plaintiff's behest but did not exhibit his identity documents to the
Police to conclude the process.
the Defendant testified that the Plaintiff did not inform him or
Simelane about the impoundment at Oshoek. According to Simelane, it
was the Plaintiff who did but the Defendant never did so, whereas it
was the Defendant who he should have told Simelane as the seller of
the vehicle. The Defendant's failure or neglect to do so may lead to
in inference about the nature of the vehicle and its status.
is also worth considering that there are many aspects of the
Defendant's case that were never suggested nor put to the Defendant.
These only emerged when the Defendant took the witness box and some
were very material and deserved to be put to the Plaintiff in order
to see and hear his reaction thereto.
example is where the Defendant testified that the Plaintiff knew that
the vehicle had been impounded before and had asked about him before
he bought the vehicle. It was not put to the Plaintiff how this came
to light. In chief, the Plaintiff testified that the Defendant knew
about the impoundment because they lived together in the same
compound. He proceeded to say that the Plaintiff asked about it when
he bought the vehicle. The two statements are irreconcilable. Why
would the Defendant ask about impoundment if he knew about it.
Furthermore, the impression was created by the Defendant that he was
very close to the Plaintiff and that the
would on account of the closeness know about the impoundment, coupled
with the fact that the Plaintiff took his vehicles to the Defendant
for repairs. This was not put nor suggested to the Plaintiff.
was also not put, as transpired in the Defendant's evidence in chief,
that the Plaintiff saw the blue book before he bought the vehicle and
that both parties inspected both vehicles.
importance of putting a party's case to the opposing witnesses cannot
be emphasised. Failure to put the case entitles the Court and the
other side to assume that the undisputed portions of that witness'
evidence remain unchallenged. This was stated in trenchant remarks by
Classen J. in SMALL VS SMITH 1954 (3) SA 434 (S.W.A.) at 438 as
is in my opinion, elementary and standard practice for a party to put
to each opposing witness so much of his own case of defence as
concerns that witness, and if need be, to inform him, if he has not
been given notice thereof that other witnesses will contradict him so
as to give him fair a warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly unfair
and improper to let a witness' evidence go unchallenged in cross
examination and afterwards argue that he must be disbelieved. "
statement finds support in the more recent case of THE PRESIDENT OR
THE REPUBLIC OF SOUTH AFRICA VS SOUTH AFRICAN RUGBY FOOTBALL UNION
2000 (1) SA 1 (cc) at 37 B, where the following is recorded:-
a point in dispute is left unchallenged in cross-examination, the
party calling the witness is entitled to assume that the unchallenged
witness' testimony is accepted as correct. This rule was enunciated
by the House of Lords in Brown vs Dunn and has been adopted and
consistently followed by the Courts."
also SIFISO MOTSA VS ATTORNEY-GENERAL CIV. TR. NO. 1888/98
(unreported per Masuku J.) at pages 6 -7.
view of the foregoing, it becomes clear that when the Defendant
bought the vehicle, he did not know that the vehicle had been
impounded before. Furthermore, it is clear that he did not know that
the vehicle had not been registered in the Defendant's name until
after the delivery of the blue book, which was done after the
delivery of the vehicle. I reject the Defendant's story in regard to
the above issues for the reasons alluded to above. Furthermore, the
Plaintiff did not know that the engine to the vehicle had been
replaced until he saw the blue book, which is when the Defendant
explained about the engine.
the Defendant's evidence, it is clear that he was desirous of
securing a purchaser for the vehicle to alleviate his financial
burden in view of his impending retirement from work and the fact
that his children had reached College level. Had he told any
purchaser about the manifold problems of the vehicle i.e. impoundment
in Big Bend, the substituted engine, and that the vehicle was in
another person's name, then these would have potentially scared away
any willing purchaser. It is clear from the evidence that the
plaintiff's initial attempt to purchase the vehicle failed because of
insufficient funds. He only succeeded on the second, with no one from
the evidence, enquiring or evincing an intention to purchase the
vehicle from the Defendant in the interim.
is also nothing to gainsay the plaintiff's evidence that had he been
told of the problems relating to the vehicle recorded above, he
certainly would, if he decided to purchase the vehicle, not take it
for registration or drive it to the border as he would have been put
on notice that the vehicle was grounded within this country's
territorial precincts. His behaviour, in immediately seeking to
register the vehicle and transferring it from Simelane is clearly
inconsistent with knowledge of the defects relating to the vehicle.
am of the opinion that the fact that the Defendant drove the vehicle
to the Republic of South Africa on numerous occasions and the
inspections done on the vehicle by the Police do not necessarily mean
that the vehicle was unblemished. It would appear that the problem
was not detected by the Police then until the Plaintiff surrendered
the vehicle for clearance purposes. I point out that it has not been
suggested, alleged or shown in evidence by the Defendant that the
Plaintiff after purchasing the vehicle tampered with it in a manner
that subsequently led to its impoundment at Oshoek.
is abundantly clear from the foregoing analysis that there are two
mutually destructive versions that were presented before the Court by
the respective parties. The proper approach to be adopted in such
cases was enunciated admirably by Eksteen J.A. in NATIONAL EMPLOYERS'
GENERAL INSURANCE CO. LTD VS JAGERS 1984 (4) SA 437 (A) at 440 E-G.
He held that the Plaintiff will have made out a case if:-
satisfied the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable, and that other
version advanced by the defendant is therefore false or mistaken and
falls to be rejected. In deciding whether that evidence is true or
not, the Court will weigh up and test the plaintiff's allegations
against the general probabilities. The estimate of the credibility of
a witness will therefore be inextricably bound up with a
consideration of the probabilities of the case and, if the balance of
probabilities favours the plaintiff, then the Court will accept his
version as being probably true. If however, the probabilities are
evenly balanced in the sense that they do not favour the plaintiff's
case any more than they do the defendant's, the plaintiff can only
succeed if the Court nevertheless believes him and is satisfied that
his evidence is true and the defendant's version is false."
will be apparent from the analysis of both versions and conclusions
reached that the plaintiff's version is, on a balance of
probabilities true and accurate and therefor acceptable. The glaring
imperfections and falsehood in the Defendant's case were identified.
The balance of probabilities therefor favour the Plaintiff in casu
and are heavily adverse to the Defendant, whose evidence has been put
on the scales and was found seriously wanting.
one outstanding issue is with regard to the treatment to be given to
DW 2's evidence as he sat in Court while the Plaintiff was on the
stand. This is unacceptable, for the Court is entitled to hear
independent and reliable evidence which will not be flavoured,
coloured or tailored to counter the evidence adduced in this case by
the Plaintiff; to open gaps or to close loopholes for the Defendant.
Although this desirable rule of practice was breached by the
Defendant, I am of the view that careful a analysis of DW 2's
evidence shows that he did not seek to insidiously bolster the
Defendant's case in reference and response to the plaintiff's case.
am of the view that the evidence of DW 2 was in fact independently
given and rather than bolstering the Defendant's case, it
corroborated the plaintiff's case more, showing that DW 2's
in at the commencement of the hearing was an oversight on the
Defendant's legal representative. Practitioners ought to be vigilant
about this rule of practice.
Law Applicable to the facts
Forms and Precedents: Commercial Transactions 2 "Purchase and
Sale of Movable Property" at page 608 states the following:-
is an implied warranty against eviction in every sale agreement in
that the seller is deemed to guarantee undisturbed possession to the
purchaser. The guarantee involves an implied undertaking by the
seller (i) that he will not disturb the purchaser's possession; (ii)
that if the purchaser's possession is threatened by a third party,
the seller will defend the purchaser against such threats; and (iii)
that if the third party is successful in his attempts and the
purchaser is evicted, the seller will make good to the purchaser such
loss as he may have suffered. This will be the equivalent of the
purchase price, legal costs incurred by the purchaser in resisting
the claim, improvements he has made to the property and any other
damages which the purchaser may have incurred by reason of the
seller's breach of contract.
is clear from the evidence led that the Defendant breached this
implied warranty and failed to protect the plaintiff's possession
from the successful eviction of the merx by the Police. Ordinarily,
this should lead the Court to finding in the plaintiff's favour,
subject to the Court's finding on whether the exceptions to the
application of the warranty exist in casu. These are the following:-
the parties agree otherwise and the seller is acting in good faith;
the purchaser is aware, at the time of the sale agreement is
concluded, that a third party is the owner; and
the cause of dispossession arose after the sale and was not due to
the seller's fault. See Butterworth Forms and Precedents (supra) at
respect of (i) immediately above, it is clear from the evidence that
there was no agreement otherwise than that the Warranty was to
operate. Furthermore, there can be no doubt that the Defendant did
not act bona fide. He concealed facts which if he had disclosed to
the Plaintiff before the conclusion of the sale, would have precluded
or persuaded the latter from entering into the contract i.e. the
fitted engine, the registration of the vehicle and the earlier
impoundment. All these were revealed at different stages after the
conclusion of the sale agreement.
(ii), there is no suggestion, intimation or evidence that the
Plaintiff knew or had reason to believe that a third party was the
owner or had a right to evict the Plaintiff from possession of the
merx. There is also no allegation or evidence that the cause of the
dispossession only arose after the sale. All the indications are that
there was nothing done or allowed to be done to the vehicle after the
sale that caused or led to the eviction of the Plaintiff. Wesselswork
entitled, "The Law of Contract in South Africa, Vol. II, 1937,
says the following at page 1237 para. 4595:-
may remark that as a general rule the causa evictionis must not have
arisen after the contract of sale in concluded, for after the
conclusion of the sale, the risk is with the purchaser, "
stated above, it is clear that there is nothing after the conclusion
of the sale which could have led to the conclusion that the risk lay
with the purchaser, the Defendant herein.
will be seen from the Pleadings, the Plaintiff claims cancellation of
the contract, restitutio in integrum and a return of the purchase
price. In respect of the issue of cancellation, R.H. Christie, in the
work entitled "The Law of Contract in South Africa," 3rd
Edition, Butterworths, 1996, states the following at page 597:-
of cancellation must be clear and unequivocal, and takes effect from
the time it is communicated to the other party. If it has not
previously been communicated, it takes effect from service of summons
or notice of motion. "
hold therefore, in view of the service of summons that in casu, the
notice of cancellation was communicated and took effect on service of
summons. In view of the materiality of the breach in casu, I hereby
grant the Order for cancellation.
are difficulties regarding restitutio in integrum in this case.
Classen's Dictionary of Legal Words and Phrases, Vol.4, Butterworths,
1977, describes the above remedy at page 15 as follows;-
in full, by which the parties to a contract are restored to the same
position as they occupied before the contract was entered into...
Where there is a claim for restitution, there must be a tender to
return what has been received."
peculiar circumstances of this case clearly indicate that restitution
is not possible. Firstly, there was no tender by the Plaintiff to
return the merx and in point of fact, it was virtually impossible to
do so having regard to the lawful confiscation of the merx. I am, in
the circumstances, especially in view of the stark absence of a
tender for the return of the merx, of the view that an order for
restitutio in integrum is incompetent and I decline to grant it.
is however clear that the Defendant breached the warranty against
eviction and the circumstances of the case are such that he was aware
of the defect in the motor vehicle and concealed these material facts
until after the conclusion of the sale agreement. In the
circumstances, I am of the view that the Plaintiff is entitled to a
return of the purchase price, in addition to the cancellation of the
sum, I grant the following prayers.
of the contract
refund of the purchase price of El 8,000.00 to the Plaintiff by the
of the suit.