THE HIGH COURT OF SWAZILAND
the matter of
INVESTMENTS CORP. Plaintiff
EDDY KHANYA Defendant
THE PLAINTIFF. : MR.
THE DEFENDANT : Mr.
plaintiff company carries on in Mbabane and Manzini, amongst other
things, the business of repairing cars. The defendant is a medical
practitioner who has been over the years one of its customers.
18th May, 1989, or thereabouts, the company undertook to repair one
of Dr. Khanya's cars, and for that purpose to supply necessary parts.
In turn, Dr. Khanya agreed to pay it a reasonable amount for its
labour charges and the market price of the spare parts so provided.
He took the car to the company's premises; initially in Mbabane, and
its staff worked on the vehicle.
is now claiming payment from him of E6,125.67, and interest, under
that contract for the work done by it. He resists this claim. He
contends that the company failed to
the mechanical problems which led him to take the car to it.
his closing submissions., Mr. Khumalo sought to argue, that Dr.
Khanya had not described these problems clearly in his plea. As I
understood him, he was saying that on the evidence the company had
done work on the car and had, in the course of doing so, fitted it
with new parts, and that it was therefore entitled to be paid - and
by implication at least, I think, to be paid notwithstanding Dr.
Khanya's vague description of the problems he wanted to have fixed.
cannot agree with that line of argument. The company is the plaintiff
here. It is suing on a contract the relevant terms of which it
described as it saw fit in its declaration. Those terms were
acknowledged by Dr. Khanya in his plea in response. To repair
something means, in plain language, to restore it to good condition.
The need to repair a thing implies very clearly that something is
wrong with it. It does not appear that either side sought further and
better particulars of the other's pleadings before the case came on
for trial. The onus lies on the company, to prove on a balance of
probabilities that it has duly performed its part of the contract. It
cannot, with respect, be permitted in closing its case to shift away
from its claim to payment for repairs done (which was the basis on
which the case was opened by Mr. Khumalo) towards a claim for payment
merely for work done and parts supplied.
fact the evidence itself shows clearly enough that the nature of the
problem was that the vehicle vibrated while being driven. Mr. H.
Dlamini, who was one of the company's mechanics who was engaged on
the job, said at one point in his evidence, in cross-examination,
that what he "had got at that time" (meaning, I think, what
he had understood) was
the car was vibrating. Mr. D. Vilane, who was at the time an
apprentice mechanic, described the purpose of one of the parts that
he had fitted as being to make the car go smoothly.
of the problems that the company has apparently had. in bringing this
claim, is that the workshop manager who was in overall charge of the
Job is no longer available as a witness. The persons who gave
evidence for it were each staff members who had either done some of
the work or supplied some parts or performed some other service or
else, in the case of Mr. Robert Dlamini, the credit controller, who
was the person who simply sought to recover the amount claimed by the
company, at the end of the day.
Khanya, who gave evidence in his own behalf, himself said that he
took his car in because it was vibrating. I see no reason at all to
doubt his testimony in that respect and I do not consider that that
it has been shown to be an unduly vague description. He is a medical
practitioner, not a mechanic. He took the car to the company to have
the vibration eliminated. The company undertook to do that.
calling its Own evidence, the company came very near —
possibly because of its difficulties in respect of the workshop
manager - to failing to make out a prima facie case. What Mr. Vilane
and Mr. H. Dlamini said was that they undertook certain work in
accordance with a job sheet that was provided to them and that
certain parts were fitted. I do not doubt that, but none of the
company's witnesses was able to say that the work that was done and
that the parts that were supplied were reasonably necessary in order
to deal with the problem that had caused Dr. Khanya to bring the car
to the garage for repair.
Robert Dlamini did take the company's case further. He said that he
had eventually gone to see Dr. Khanya about the outstanding account,
in his rooms, and that Dr. Khanya had then acknowledged liability for
it and had implied that he would settle it.
his evidence, Dr. Khanya denied this. He said that he had taken the
car back several times for the vibration to be eliminated. He had
paid earlier accounts in respect of the work that was done by the
company to try to fix it. Eventually the car had been sent down to
the company's Manzini branch.
it came back it was still vibrating. After that he took the view, and
so told the company, that when it was sure that it could fix the
vehicle properly, it should let him know. At that stage he would
deliver it back to the garage again, but he was not prepared to keep
paying bills for work done and parts supplied that did not resolve
prefer Dr. Khanya's evidence to that of Mr. Robert Dlamini as to
whether there was an acknowledgement that a debt was due. The latter
should not infer from this that I do not think that he was being
candid but in circumstances such as this, there is sometimes a
tendency, I think, to interpret a conversation as favourably as
possible from one's own viewpoint. What Mr. Dlamini first said was
that Dr. Khanya agreed to pay the bill. Later, however, he said that
he acknowledged the debt and implied that he would pay it. At that
point in his evidence, Mr. Dlamini wanted, I believe, to describe
what occurred, as he saw it, as clearly as he could, but Dr. Khanya
was firm in denying that he had ever acknowledged the debt, he has
contested this action and he has gone into the witness box on his own
behalf. I do not consider that the company has discharged the onus of
proving such an acknowledgement.
Khumalo argued that Dr. Khanya had acted unreasonably and in a way
which was contrary to the terras of the contract, in taking the
attitude, after the car had come back from Manzini, that the company
should tell him when it was able to do the job properly. He contended
that he should have returned the car again and given the company a
further opportunity to complete the repairs.
do not think that is a sound argument. On the evidence, the company
had already done work, for which it was paid, that had not resulted
in the curing of the defect. In the course of this trial, it has not
succeeded in showing that the work and parts for which it now claims
were reasonably necessary or even expedient to treat the problem. It
seems to me indeed, that this particular submission carries within it
something of an acknowledgement, on the company's part, that it had
not succeeded in carrying out its part of the bargain. Dr. Khanya was
in my judgment reasonably entitled to take the view, after the car
was returned from Manzini, that he was not going to be put to
continuing further expenses until he had some assurance that the
fault had been disposed and that the cure was at hand.
these reasons, I dismiss the company's claim and give judgment for
Dr. Khanya with costs.