GOWORA
JA: After
hearing counsel in this matter we allowed the appeal with costs. We indicated that our reasons would
follow. These are they.
The facts of this matter are that on 16
February 2010, the appellant issued summons claiming:
“1. Payment of the sum of ZAR 17353.00
being an amount due and owing by the Defendant to the Plaintiff in respect of
services rendered and materials supplied by the Plaintiff to the Defendant at
the latter's special instance and request in repairing a number of fuel pumps
on Defendant's behalf during December 2008 and which sum, despite demand,
Defendant has failed or refused to pay;
2. Interest
thereon at the prescribed rate from the
27th January 2010, being the date of demand, to the date of
final payment;
3. Costs
of suit.”
The appellant, as its name suggests,
provides service in the repair of diesel fuel pumps. The respondent is a registered public service
transport operator. It is common cause
that the appellant had on several occasions prior to December 2008 done
business with the respondent.
On 19 December 2008 the respondent's representative
took two fuel pumps to the appellant's premises for repair. The appellant's personnel stripped and
examined each of the pumps. After the
fuel pumps were opened up a quotation for the work to be done in the sum of ZAR
24 000 was given to the respondent's representative orally. On being informed of the quotation, the
respondent requested the appellant to repair the two diesel pumps and offered
to pay the cost of the repairs in instalments of ZAR 2000.00 per month to which
the appellant agreed. A job card was
then opened for the repair. The parts
fitted to each pump are listed at the back of each job card. The pumps were repaired and collected by the
respondent's employees on 30 December 2008.
Subsequently the appellant sent two invoices to the
respondent for ZAR 9000 and ZAR 15 000. The
respondent paid a total sum of ZAR 6 647 and refused to pay the balance. The
appellant issued summons for recovery of the same. The matter proceeded to trial at the
conclusion of which the court a quo issued
the following order:
“1.
The defendant is absolved from the instance.
2. The Plaintiff shall pay the Defendant's
costs of suit.”
It
is against that order that the appellant now appeals on the following grounds
namely:
1. That the learned judge misdirected
himself by absolving the respondent from the instance on the basis that the
value of the spares and the labour costs had not been proved when such proof is
only necessary under the Actio Legis
Aquilia to prove that damages claimed are fair and reasonable;
2. That the learned Judge misdirected
himself in failing to find that the
appellant's charges for work done had been accepted by the respondent who had
made part payment towards them in acknowledgment of its acceptance;
3. That the learned judge erred in
failing to take into account that the respondent's witness in cross examination
admitted owing the appellant the balance outstanding; and
4. That the learned Judge misdirected himself in failing to find that
the respondent had established no defence to the appellant's action at all and
that the entire defence had been an abuse of court process.
Dealing with the second, third and fourth grounds
of appeal, the evidence of the appellant's witnesses that a quotation for the
repair of the two pumps was given to the respondent who then instructed the
appellant to carry out the repairs was not disputed. The respondent's witness Mr Mungwari, did not
deny liability to pay the invoiced sum and, as has been noted above the dispute
as to whether the amount owed was to be
paid in foreign currency or in Zimbabwe dollars was resolved by the court a quo in favour of the appellant. The
evidence presented on behalf of the appellant established that the respondent
did not challenge the invoices that were generated by the appellant, which
invoices reflected that the invoiced sum was to be paid in South African Rand at
the rate of R 2000 per week. The unchallenged
evidence of the appellant was that the respondent actually paid part of the
total invoiced sum of ZAR 24 000.00 in Rand. Over the period extending from 14
January 2009 to 31 December 2009, the respondent had paid an amount of ZAR 6
647. In my view, it would be
disingenuous for the respondent to contend on these facts that there was no
contract for the payment of the invoiced sum.
As to the currency of payment, the learned judge disbelieved the
respondent and found as a fact that the parties contracted for payment in foreign
and not local currency. In this regard the
court a quo said:
“Mr
Mungwari was adamant that he did not enter into any agreement to pay in foreign
currency with the plaintiff. He prevaricated on whether or not the debt was
paid out in local currency or in foreign currency. He exhibited confusion in some of his
responses … it seemed to me that he confused other repairs that were paid in
local currency … my assessment of the credibility of the witnesses is that
plaintiff's witnesses gave their evidence very well in regards to the schedule
of payments found in exhibit 3.”
The above facts established that there was a valid contract between the parties
for materials supplied and services rendered in the repair of two diesel pumps
and that the contract price was agreed at ZAR24 000-00. By failing to pay the
outstanding balance the respondents were in breach of the contract. The
appellant, as the injured party, having performed its obligations in terms of
the contract, was entitled to demand specific performance thereof by the
respondents. This is what was claimed in the summons.
I turn to ground one of the grounds
of appeal.
The terms of the contract having been
established, what the learned Judge in the court a quo had to consider was whether or not both parties to the
contract had performed in terms of their respective obligations under the
agreement. It is trite that contracts
freely entered into should be enforced. Contrary to this principle, the learned
judge found that the appellant had not proved the value of the repairs to the
pumps. This was irrelevant to the claim
before the court. This is what the learned judge had to say:
“Thus
even though the defendant agreed to pay for the value of repairs in rands on 19
December 2008 and the plaintiff dispatched to it the invoice for the repairs on
30 December 2008, the plaintiff has failed to prove the value of the repairs.
It did not call evidence from its buyers or store man to establish the value of
the spares and its mark up. It did not lead any evidence on how labour costs
were calculated from its workshop personnel. All we have are global figures
that have not been explained.”
It was submitted on behalf of the
appellant that what was being claimed was a simple contract price, and that the
respondent had agreed to discharge its indebtedness to the appellant at the
rate of ZAR 2000-00 per week. Mr
Mungwari admitted before the court a quo that some payments were made in
reduction of the invoiced sums although he was unable to state how much had
been actually paid by the respondent.
It was further contended on behalf of the
appellant that the learned judge in the court a quo fell into error by confusing delictual damages with
contractual damages and that the actio
legis aquiliae is not applicable in
the circumstances of this case. In Amler's Precedents of Pleadings, 4 Ed,
the learned author states that:
“The actio legis aquiliae enables a plaintiff
to recover patrimonial loss (including a purely economic loss) suffered through
a wrongful and negligent act of the defendant … Liability is dependent upon the
wrongfulness of the act or omission of the defendant”.
In the aquilian
action, damages are awarded as compensation for patrimonial loss, and are
measured by the pecuniary loss, actual or prospective sustained by the
plaintiff. The measure of such loss is
often referred to as the interesse,
which is the difference between the present value of the plaintiff's patrimony
and the value which it would have had if the act complained about had never
happened. In assessing the level of
damages to the corporeal property of a plaintiff the court has to apply a
practical method of such assessment and in most cases the plaintiff has to
establish what is referred to as 'the reasonable cost of repairs. In Heath
v Le Grange 1974 (2) S.A. 262, the onus resting upon a plaintiff to prove
damage was confirmed by THERON J thus:
“….It
appears to me to stand to reason that, if on the pleadings the onus of
establishing his damages has been placed on the plaintiff and he chooses to
attempt to prove the patrimonial loss sustained by him by reason of the
collision not by producing appraisements of the pre-collision and
post-collision values of his vehicle but by producing evidence of what it cost
to have repairs done to it, he cannot discharge the onus resting upon him save
by proving both that the repairs were necessary and that the cost thereof was
fair and reasonable. That this is correct not only follows from what was stated
in the judgment of Scrooby v Englebrecht
but has been accepted in an impressive number of decisions of our Courts since
the Scrooby case, some of which have been mentioned in the course of this
judgment and at least two of which (de
Witt v Heneck, supra and Paarl Transport Services v du Toit, supra) are
decisions by two-Judge Courts of this Division.”
Clearly the actio
legis aquiliae is not the cause of
action with which the court was seized. The appellant did not premise its cause
of action on it. The appellant's claim
is not for damages arising from delict. In
its summons it claimed payment of a specified sum as being due and owing in
respect of services rendered and materials supplied under a contract concluded
between the parties and fully performed by the appellant on the one hand and
partially by the respondent on the other.
We accept, as
correct, the submissions made on the appellant's behalf by counsel that this
was a simple action for a contract price and that the parties had agreed to
settle the contract price at the rate of ZAR 2000-00 a week for a period of one
year. What the appellant sought in the
court a quo was an order that the respondent pay a specified sum of money. An
order for the payment of a sum of money in terms of a contract is in fact an
order for the enforcement of the contract. In Jacobs
v United Building Society 1981 (4)
S.A.37 NESTADT J, described a claim for payment in terms of a contract in the
following terms:
“Our
law draws a clear distinction in relation to the remedies available on breach
of contract between specific performance and damages. The former is performance
by the person obliged in the very terms agreed upon (Wille Principles of South
African Law 6th ed at 381); the latter is a substitutionary
performance, the object whereof is to make good the plaintiff's patrimonial
loss caused by the defendant's breach of contract. When a creditor under a
contract in terms whereof payment is a sum of money due sues for it, this is a
claim par excellence for specific
performance. I have never heard of such claim being put forward in the form of
or labelled damages and I entertain no doubt that it would be wrong to do so.”
The learned Judge in the court a quo absolved the respondent from the
instance on the basis that the appellant had failed to prove the value of the
parts used in the repair of the pumps. It
is clear that in so doing he fell into error and treated the claim as if it
were one for delictual damages. What was
before him was a claim for specific performance by the respondent of the
contract that the parties had verbally concluded. The nature of the contract itself may have
confused the Court and caused it to misdirect itself but the claim was clearly
stated as one for payment of the sum agreed and for which sum, in the face of
the undisputed facts and the findings of credibility made in favour of the
appellant by the court a quo, no further proof was required by the appellant. The
learned Judge ought, therefore, to have given judgment in favour of the appellant.
Accordingly the following order will
issue:
1. The
appeal is allowed with costs.
2. The
judgment of the court a quo is set
aside and substituted with the following:
(a)
The defendant shall pay
to the plaintiff the sum of ZAR 17 353.00 together with interest thereon at the
prescribed rate with effect from 27 January 2010 to date of payment.
(b)
The defendant shall pay
the costs of suit.
ZIYAMBI
JA: I
agree
OMERJEE
AJA I
agree
Atherstone & Cook,
appellant's legal practitioners
T K Hove & Partners,
respondent's legal practitioners
