REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT CASE NO. I 997/2014 In the matter between: MICHAEL CHRISTIAAN VAN ZYL DU PLESSIS t/a MJM TRUCK AND PLANT HIRE PLAINTIFF and NGURIMUJE BRIAN TJIRIMUJE DEFENDANT Neutral citation: Van Zyl Du Plessis v Tjirimuje (I 997/2014) [2016] NAHCMD 310 (7 October 2016) CORAM: MASUKU J NOT REPORTABLE
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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT
CASE NO. I 997/2014
In the matter between:
MICHAEL CHRISTIAAN VAN ZYL DU PLESSIS t/a MJM TRUCK AND PLANT HIRE PLAINTIFF
and
NGURIMUJE BRIAN TJIRIMUJE DEFENDANT
Neutral citation: Van Zyl Du Plessis v Tjirimuje (I 997/2014) [2016] NAHCMD 310 (7
October 2016)
CORAM: MASUKU J
Heard: 1, 2, 4, 5 February and 8 April 2016
Delivered: 7 October 2016
FLYNOTE: LAW OF CONTRACT – oral agreement for services rendered and oral
agreement of letting and hire - LAW OF EVIDENCE – court’s approach where the
parties adduce mutually destructive versions.
NOT REPORTABLE
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SUMMARY: The plaintiff sued the defendant for an amount of N$ 89 790 in respect of
mechanical services rendered by the plaintiff, allegedly for repairing the defendant’s
truck. The defendant ,on the other hand averred that the parties entered into an oral
agreement in terms of which he let his truck and trailer to the plaintiff at the rate of N$20
000 per month. He further averred that the plaintiff was to pay for the costs of
roadworthiness of both the truck and the trailer and that the defendant would
compensate the plaintiff for the costs of the roadworthiness by granting the plaintiff a
grace period of six months’ use of the truck and trailer without payment of the N$20 000
mentioned above.
The plaintiff denied the existence of the oral agreement in question and accordingly
denied liability of the defendant’s counterclaims.
Held – that where facts are in dispute, it is necessary to make credibility findings and to
come to a conclusion on the inherent probabilities of a particular version. Plaintiff have
failed on a balance of probability, to show that the agreement between the parties was
for them to service the defendant’s vehicles for a price.
Held further – that a person who relies on a contract of hiring and letting, must show
that the agreement contains the following elements, (a) an undertaking to deliver the
thing; (b) an agreement for the lessee to temporarily have use and enjoyment of the
thing; and (c) an undertaking by the lessee to pay rent. has made out a case for the
agreement and the damages he suffered as a result of the plaintiff keeping the vehicles
and not remitting any payments to him.
The court accordingly dismissed the plaintiff’s claim as well as the defendant’s second
claim in respect of the amount purportedly spend on repairing the truck and the trailer.
The defendant’s claim in respect of claim 1 was upheld and the plaintiff was ordered to
pay the defendant an amount of N$ 260 000 with interest on the aforesaid amount at
the rate of 20% per annum as well as costs of the suit.
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ORDER
1. The plaintiff’s claim is dismissed.
2. The defendant’s claim in respect of claim 1 is upheld.
3. The defendant’s claim in respect of claim 2 is dismissed.
4. The plaintiff is ordered to pay the defendant an amount of N$ 260 000 with
interest on the aforesaid amount at the rate of 20% per annum, calculated
daily from the date each monthly rental became payable, to date of final
payment.
5. The plaintiff is ordered to pay the costs of the suit
JUDGMENT
MASUKU J.; Introduction
[1] This is an action in which the plaintiff claims payment of an amount of N$ 89 790
from the defendant. The amount is claimed together with interest and costs. The plaintiff
alleges that the amount claimed is in respect of mechanical services rendered by the
plaintiff in respect of the repair of the defendant’s truck registered R 48UOR and a trailer
(the vehicles) and for which the defendant, notwithstanding demand, has failed and/or
neglected to make good.
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[2] The defendant, for his part denies liability to the plaintiff in the amount claimed or
at all. His version is diametrically opposed to that of the plaintiff. In a nutshell, as can be
deduced from his plea, he avers that the parties entered into an oral agreement in terms
of which he let his truck and trailer to the plaintiff at the rate of N$20 000 per month.
Furthermore, the plaintiff was to pay for the costs of roadworthiness of both the truck
and the trailer (in the approximate amount of N$ 80 000) and that the defendant would
compensate the plaintiff for the costs of the roadworthiness by granting the plaintiff a
grace period of six months’ use of the truck and trailer without payment of the N$20 000
mentioned above.
[3] The defendant, as he was entitled to, filed a counterclaim predicated on the
allegations mentioned in the paragraph above. It is averred that the plaintiff, in respect
of the first claim, breached the oral agreement stated above resulting in the defendant
sustaining damages in the amount of N$ 260 000, being the monthly rental calculated
from October 2011 to October 2012 when the defendant was subsequently placed in
possession of the truck and trailer.
[4] In respect of the second claim, the defendant alleges that whilst the truck and
trailer were in the plaintiff’s possession, as a result of the alleged oral agreement,
certain damage was occasioned to the truck and trailer, namely to the computer box,
the diesel pump and the battery. It is alleged that the defendant paid a sum of N$ 25
000 to bring the said vehicles to a state of repair. The plaintiff denied the existence of
the oral agreement in question and accordingly denied liability for both of the
defendant’s counterclaims.
Common cause facts
[5] From the evidence adduced, considered together with the averrals contained in
the pleadings, it is clear that there are some issues that are common cause and need
not be traversed in the judgment. First, the citation of the parties was not contested.
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Furthermore, it is common cause that the defendant was the owner of the truck and
trailer in question in the proceedings. It is also not in dispute that the truck and trailer
were delivered to the plaintiff in Okahandja by the defendant.
[6] It is also not in dispute that the plaintiff and the defendant did not see eye to eye
regarding the truck and trailer and this resulted in the defendant reporting a dispute to
the Okahandja police, who tried to mediate between the two parties. It is also common
cause that the truck and trailer were eventually delivered to the defendant and that at
that point in time, the truck would not start, necessitating that some repair work be done
on it by the plaintiff.
Main issue for determination
[7] It is clear that the main issue for determination relates to the nature and content
of the agreement between the parties. Put squarely in the mix, the issue for
determination is whether the agreement between the parties was for the repair of the
truck and trailer, as alleged by the plaintiff or as alleged by the defendant, it was one of
letting and hiring of the truck and trailer to the plaintiff by the defendant for a monetary
consideration. The resolution of this main issue will, in my view, result in the further
resolution of what may be issues connected to this main issue. Accordingly, the
evidence analysed below will be geared towards resolving the nature and content of the
oral agreement.
The evidence
[8] The plaintiff called two witnesses in support of its case. I will, as indicated above,
chronicle the evidence relevant to the determination of the key issues as captured in the
foregoing paragraph. The first witness called by the plaintiff was Mr. Michael Christiaan
Van Zyl Du Plessis, who adduced his evidence under oath. He testified that he operated
the plaintiff together with his brother Mr. Jacob van der Merwe du Plessis. Their main
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business was to service and repair trucks and trailers, together with other heavy
equipment and plant.
[9] On 9 March 2011, he further testified, the defendant approached him in
Okahandja with a request for the service of the defendant’s truck and trailer. He agreed
to do the work and indicated that the defendant would supply all the necessary parts for
the service required for both the truck and the trailer. This was done, he claimed, in
order to lessen the financial burden on the defendant from the costs of the repairs. The
defendant then left the truck and trailer at the plaintiff’s premises for the repairs
aforesaid. The service of the truck began in earnest.
[10] In effecting the necessary repairs to the truck, the plaintiff engaged a Mr. Willie
Lubbe. The latter, upon seeing the trailer, informed the PW1 that the trailer had been
removed from his premises in Windhoek by the defendant and that there were
unresolved issues regarding payment and that he would accordingly take the truck to
Windhoek, which he did. The defendant was informed of Mr. Lubbe’s intentions and he
indicated that although he had issues to resolve with Mr. Lubbe, the latter could remove
the trailer back to Windhoek but he would lay a criminal charge with the Namibian
police.
[11] After a period of two months elapsed, the defendant indicated he had sorted his
issues with Mr. Lubbe and the trailer was returned to the plaintiff’s premises at his cost.
Having finished the repairs on both the truck and the trailer, it is his evidence that he
thereupon invoiced the defendant in the amount claimed in the summons as stated
above. Documents in support of the claim were availed to the defendant, being job
cads. The defendant did not pay the amount claimed but instead commenced
negotiations for the release of the vehicles to him pending him making payment at a
later stage as he was still to generate income to enable him to settle the bill with the
plaintiff. The plaintiff refused to release the items until settlement of the bill.
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[12] Later, he further testified, the defendant approached PW1 suggesting that the
plaintiff should use the truck and trailer to generate income and that such income would
then be deducted against the amount due to the plaintiff. PW1 was unhappy with the
proposal. Later in 2012, he telephoned the defendant and requested to use the latter’s
trailer to move some of his furniture to another place and the defendant agreed to this.
The defendant further indicated that there were some people who were interested in
viewing the truck and trailer for purposes of purchasing same. He proposed that he
could use the proceeds of the sale to settle the plaintiff’s account, a proposal that was
acceptable to the plaintiff.
[13] At another time, PW1 was called by the plaintiff and informed that other people
were interested in purchasing the vehicles in question and required access to the place
where same were kept. PW1 was however unable to assist as he states that he was in
Oshikango at the material time. A call from the Namibian police then came through
informing PW1 that a criminal case had been opened by the defendant against him,
namely for theft under false pretences. It is PW1’s case that he informed the officer of
his side of the story and nothing came of the said complaint.
[14] PW1 further testified that to date, the trailer still stored his furniture. It was his
evidence that the allegations by the defendant regarding the oral agreement for him to
let the truck and trailer to the plaintiff were false. He also denied that the defendant
sustained the damages he alleged in his counterclaim. That was the extent of the
material aspects of his evidence in chief as it were.
[15] In cross-examination, PW1 was taxed about the two invoices he issued to the
defendant and his evidence was that although they bore the date 16 June 2011, that
was not the actual date of the receipt of the truck and trailer but six months or so later.
He was asked if the defendant had signed a job card marked exhibit ‘C’ and he testified
to the defendant had done so. It was his evidence that the job card was to inform the
defendant of the problems with the vehicles and what needed to be attended to.
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[16] It was put to PW1 that the defendant never gave him the truck and trailer for any
repairs and PW1 maintained his version. It was also put to him that the defendant never
received the job cards and he denied this. He also denied as was put that the defendant
never instructed him to repair the truck and trailer. Asked about the actual service
carried out on the vehicle, PW1 stated that he took between six and nine months to fix
some of the items in the trailer. He also testified that he issued the invoice after the work
was done.
[17] PW1 was asked as to why he only started demanding payment after the police
took the truck from him and he stated that he had even before then been asking the
defendant to pay and he had based his relationship with the defendant on trust. It was
put to PW1 that the defendant would say that his truck was serviced at Lubbe’s and not
by the plaintiff and this was denied by PW1. He did admit though that the defendant did
supply parts to Lubbe as reflected in the job card, namely filters, head lamps and all the
parts for the bogey. When put to him that his duty was not to service the truck but to get
it roadworthy, PW1 stated that the defendant asked him to tell him about all the defects
in the vehicle.
[18] PW1 was shown a picture then provisionally marked exhibit ‘H’ and he testified
that the picture depicted the truck with a registration number marked N 887 RU. Asked
about it, PW1 stated that he knew nothing about it and was unaware as to who put it on
the truck. It was put to him that the defendant would testify that after he bought the truck
and trailer, PW1 called him and expressed interest in purchasing it, whereupon the
defendant introduced the issue of the truck and trailer being let to PW1 as he had been
referred to the plaintiff as an entity that hired trucks and trailers. This was denied by
PW1 saying his company never hired trucks. It was put to PW1 that the defendant
would testify that he never knew that the plaintiff was in the mechanical business at all
and PW1 denied this.
[19] It was also put to PW1 that the defendant would deny giving PW1 permission to
use his trailer to transport his goods and that is why he went to report the issue to the
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police. This was denied. PW1 further denied that the defendant did not know where the
plaintiff’s business had moved to but discovered after two years and this was why he
reported a case of theft with the police. It was his evidence that the truck and trailer,
were, according to his recollection, only removed in the year 2012 from his possession.
[20] PW1 was asked about the state of the truck on collection and his evidence was
that it was in a serviceable state. It was put to him that it was not as it could not start, an
allegation that PW1 denied. He reasoned that the truck did not start because it probably
had no fuel. It was put to PW1 that even after the truck had been fuelled by the police, it
would still not start and this was denied by PW1.
[20] The second witness for the plaintiff was PW1’s brother Jacob Christiaan Van Zyl
Du Plessis and I shall refer to him for ease of reference as PW2. He confirmed the
evidence of PW1 in material terms but was quick to point out that when the defendant
brought in his truck and trailer to the business premises, on 9 March 2011, he was not
present. He did later get to meet the defendant who informed him that he was unhappy
about the service that Lubbe had effected on the truck and trailer. It was PW2’s
evidence that he personally attended to the service of both the truck and trailer and it
was agreed that the defendant would supply the parts needed as he could source them
for a cheaper price.
[21] It was PW2’s evidence that he and PW1 continuously reminded the defendant to
supply the spare parts as undertaken but the defendant never made good on his
promises. The defendant eventually asked PW1 and PW2 to continue with the service
which they did and they invoiced him for the work done eventually. It is that claim that
the plaintiff has lodged against the defendant, he further testified. His other evidence
was largely in pari materia with the evidence of PW1. I will, for that reason not dwell on
the chronicle thereof.
[22] In cross-examination, PW2 testified that he was in Angola when the truck and the
trailer were brought to the business premises and he was informed by PW1 of the date
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when they were left by defendant. It was his evidence that when he saw the truck, he
did not take notice whether it had a registration number plate or not. It was put to PW2
that PW1, his brother, had said he was not aware that the truck had been serviced at
Lubbe’s and he stated that was correct. Asked why the defendant was unhappy, with
the service at Lubbe’s, PW2 testified that he was unhappy with the service they had
rendered to the truck and trailer without specifying the aspects giving rise to the
defendant’s alleged dissatisfaction.
[23] It was his evidence that though their main business was in construction and
transportation, they did fix trucks and trailers when they break down. It was his evidence
though that neither he nor his brother were qualified mechanics. It was put to PW2 that
the defendant would say he did not bring the truck and trailer for service and repair and
PW2 stated that he had no comment on that as he was not always present at the
premises. He however denied that the defendant brought the truck and trailer for
purposes of hiring same. He denied later that the truck and trailer had been serviced at
Lubbe’s by the time it was brought to the plaintiff’s premises.
[24] PW2 was asked about when the invoices were given to the defendant and he
stated that it was at the old premises and he stated further that Lubbe had complained
to them that the defendant had not paid for the services they had rendered to his truck
and trailer. It was put to PW2 that when the defendant brought the truck and trailer to
the plaintiff’s business, he had already paid in full for it with Lubbe but that another
person Tjombode had rented the trailer from the defendant had taken the trailer for
repairs but never paid for it. This PW2 denied. In further cross-examination, PW2
admitted that the defendant proposed that the plaintiff use the trailer and deduct the
amount owing from the proceeds but later denied this. It was also put to him that the
defendant put up another proposal, namely, that PW1 and PW2 assist him with finding a
purchaser for the truck and trailer. This was admitted by PW2. Nothing much turned on
the re-examination. At this juncture, the plaintiff’s case was closed.
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[25] The defendant opened his case and called Inspector Reinhardt Christiaan
Maletzky, a member of the Namibia Police Force based at Okahandja in the criminal
investigation department as his first witness. It was his evidence that he had been
approached by the defence to testify about his dealings with both sets of parties in this
matter. He testified that the defendant had approached him in the last half of 2012 and
laid a complaint of theft by false pretences against PW1 and PW2. According to him, the
defendant came and alleged that he had an agreement with the plaintiff to let his truck
and trailer to them for a fee. The deal, he stated, went sour and he wanted the police to
be involved and to possibly settle the matter amicably.
[26] Inspector Maletzky testified further that after meeting the defendant, he called
PW1 but the latter was unable to attend on that day, promising to come the following
day. The defendant came on the agreed day but PW1 did not. Several attempts were
made to get PW1 to come but he did not, although he gave his word that he would
come on numerous occasions. This included the intervention by Inspector
Kumpenbona, to whom PW1 also promised to attend but did not.
[27] It was his evidence that on 12 November 2012, he then preferred charges
against the plaintiff formally and on 13 November, 2012, he together with the defendant
went to Plot Kalkwerke, about 3 km from North- West of Okahandja where they found
the premises locked. They spoke to PW1 on the mobile telephone and he told them that
he was in Oshikango but his brother was at the farm. They were eventually granted
access to the plot by a Mrs. Lisa Du Plessis. They were armed with a search warrant
which they presented to her.
[28] The Inspector testified that once in the premises, he saw a red truck bearing
registration number N 887 RU and a trailer with registration number N 3311 K.
Photographs of the said items were captured by the scenes of crime personnel from the
Namibian Police. They seized both items and the defendant, who had with him a spare
key for the truck, tried to get it to start unsuccessfully. The truck and trailer were later
towed to the police station where they were booked in under the criminal case opened.
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PW2 was called to produce the key for the trailer and PW2 told them that the key was
with PW1, who had kept his property in the trailer. The truck was then handed over to
the defendant. Communication was given to the plaintiff’s lawyers to ask PW1 to come
and fetch his belongings from the trailer to no avail.
[29] Inspector Maletzky further testified that he went to NATIS where he ascertained
that the registration number on the truck, i.e. N 887 RU was for a Toyota Tazz
registered in the name of SAS Hekla and the one on the trailer was for a Sunny pickup
in the name of a Mr. Steenkamp. The documents reflecting this were tendered in
evidence.
[30] Inspector Maletzky also testified that upon enquiry, the defendant gave all the
documentation to prove that the defendant was the owner of the truck and trailer. PW1
demanded that the defendant should pay him the money owed and only then would he
release the trailer. The Inspector further testified that there was no document given to
him that would have served to back up the plaintiff’s claim against the defendant. The
Inspector proceeded to adduce evidence (in the nature of similar fact evidence) which is
potentially prejudicial to PW1 and PW2 that I will not lend any credence to as it is not
relevant in any event. It was not, however, objected to by the plaintiff’s counsel during
the examination of the witness. Lastly, the Inspector testified that he knew PW1 and
PW2 very well and that he was in good terms with them. He also testified that he only
got to know the defendant after the report he had laid in respect of the vehicles in
question.
[31] In cross-examination, the Inspector reiterated that the defendant, in laying the
complaint, claimed that he had rented the truck and trailer to the plaintiff and that the
plaintiff retained the truck allegedly because the defendant owed the former some
money for repairs. It was his evidence that the defendant denied owing any money to
the plaintiff and insisted that he had rented out the truck and trailer to the plaintiff and
that he was actually being owed by the plaintiff. He testified further that the Prosecutor-
General however declined to prosecute the plaintiff in this matter. It was the Inspector’s
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further evidence under cross-examination that when he required the documents in proof
of the plaintiff’s claim against the defendant, the former failed to provide same. Nothing
of consequence turned on the re-examination.
[33] After this evidence, the defendant took the stand. His evidence, reduced to the
bare bones, was that he bought the truck and the trailer from the United Kingdom and
immediately, upon delivery of same in August 2010, took them to Lubbe’s Auto garage,
(Lubbe’s), for various repairs. He attached copies of the proof of payment in respect of
the repairs done. It was his evidence that the owner of Lubbe Garage thereupon gave
him the contact details of the plaintiff, that of PW1 in particular. When the defendant
eventually met PW1, they engaged in business discussions and PW1 proposed to
purchase the truck and trailer from the defendant. The amount the defendant put up for
the price was found by PW1 to be exorbitant. The defendant then informed PW1 and
PW2 that the truck and trailer were not yet certified roadworthy as they were still booked
in at Lubbe’s.
[34] It was the defendant’s further evidence that they then agreed that he would lease
the truck and trailer to the plaintiff at N$ 20 000 per month and that the plaintiff would be
responsible for keeping the truck and trailer in a state of repair at their own cost whilst
the said truck and trailer remained leased to them. It was his evidence that after the
agreement, he took both items to the plaintiff’s premises. His claim was that from
October 2012, when the plaintiff took delivery of the items, they did not make any
payment to him as agreed. He accordingly claimed N$ 260 000 in respect of monthly
rentals from October 2011 to October 2012. He further confirmed the involvement of the
Namibian police as testified by the Inspector.
[35] The defendant further testified that the pictures filed as exhibits in court were
captured by police officers during the visit to the plaintiff’s premises. He testified, from
the pictures captured that he did not know the registration number plates on the truck as
the one he left on the truck at delivery bore a number from the United Kingdom. He
testified further that he did not know the person identified by NATIS as the owners of the
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vehicles whose registration numbers were placed on the truck and trailer respectively. It
was his evidence that the truck and trailer were not roadworthy and would not, for that
reason, have had the numbers allocated to them.
[36] The defendant further filed documents as exhibits in respect of the amounts he
paid to Lubbe for the repairs he had asked them to do on the vehicles. It was his
evidence, based on documents exhibited in court that he paid Lubbe N$ 19 748.07. It
was his evidence though that there is another payment he had made but which he could
no longer find despite a diligent effort to do so. Regarding his dealings with PW1 in
particular, the defendant testified that he got a call from PW1 who informed him that he
had seen the truck and trailer at Lubbe’s and wanted to buy it and when they met, PW1
could not meet the asking price of N$ 300 000 and it is then that the rental agreement
was sealed.
[37] In cross-examination, the defendant stated that he claimed an amount of N$ 25
000 for the amount he paid to get the vehicle to start after it had been in the plaintiff’s
possession. It was his evidence that he could not trace the proof of payment but could
find it with the company that fixed the truck. Asked why he did not go to see the plaintiff
to claim payment for the amounts claimed, the defendant stated that he normally called
PW1 and PW2 on the telephone to demand his money and never anticipated that the
matter would degenerate to the extent that he would have need to involve the police.
The defendant stated that he did not know whether the plaintiff did actually use the truck
and trailer in their business operations.
[38] It was the defendant’s further evidence that when they had agreed with the
plaintiff to rent the said items to them, he gave his name and bank details to the plaintiff
for the purpose of making payments into the defendant’s account at the end of each
month and they took down the details in writing. In his evidence, the defendant stated
that the truck was not roadworthy but they had agreed that the plaintiffs would make it
road worthy. It was his further evidence that they did not agree on a duration of the
rental agreement as he thought he had met credible people in the business. It was the
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defendant’s evidence that for a long time when he tried to call PW1 and PW2 they
would not pick his calls and that this is what prompted him to approach the police for
assistance. He had no idea that the relations between them would reach the nadir
displayed in evidence.
[39] Finally, it was put to the defendant that the agreement between the parties was
that the plaintiff would effect repairs to the truck and trailer and to get both into a
roadworthy state. This was emphatically denied by the defendant. He denied being at
the plaintiff’s premises regularly once the repair work had started. He also denied
undertaking to supply the parts needed for the repairs. The defendant further denied
that he was being regularly shown by PW1 and PW2 the work that was being done on
the truck and trailer. He denied that the amount of the work done on the said items was
N$ 80 026. It was his version that he was not required to pay any money for making the
said items roadworthy as the agreement was that any such costs would be deducted
from the money otherwise due to him from the plaintiff in respect of the monthly rental
referred to earlier.
The approach to irreconcilable versions – the law
[40] This was the extent of the material evidence led by both parties in this matter.
What is plain from the narration of the evidence adduced by both sets of litigants is that
the parties’ versions are irreconcilable as they have two diametrically opposed stories
they told the court and these are totally incongruous, short of the court believing one
and discarding the other. How must the court deal with such evidence? In Ndabeni v
Nandu1 this court dealt with the manner in which versions that are diametrically opposed
can be resolved and findings of fact possibly made thereon.
[41] In that case, the court referred to Life Office of Namibia Ltd v Amakali and2SFW
Group Ltd v Martell Et Cie and Others3 in support of the proper approach. In the latter
1 (I 343/2013) [2015 NAHCMD 110 (11 March 2015) at para 26, p14-152 2014 NRR 1119 at p. 1129-11303 2003 (1) SA 11 (SCA) at p. 14H-15E
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case, the Supreme Court of South Africa, per Nianaber J.A. formulated the proper
approach as follows:
‘The technique generally employed by our courts in resolving disputes of this
nature may conveniently be summarized as follows: To come to a conclusion on the
disputed issues, a court must make findings on (a) the credibility of the factual
witnesses; (b) their reliability; and (c) he probabilities. As to (a), the court’s finding on
the credibility of a particular witness will depend on its impression about the veracity of
the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in
order of importance, such as (i) the witness’s candour and demeanour; (ii) his bias,
latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions
with what was pleaded or pit on his behalf, or with established fact or with his own extra-
curial statements or actions, (v) the probability of or improbability of particular aspects of
his version, (vi) the calibre and cogency of his performance compared to that of the
other witnesses testifying about the same incident or events. . .’
[42] The approach advocated above, was also followed by Heathcote A.J. in U v
Minister of Education,4 where the learned Judge stated correctly in my view, that ‘where
facts are in dispute, it is necessary to make credibility findings and to come to a
conclusion on the inherent probabilities of a particular version’. It is clear, in the light of
the maze of the divergence of the respective parties’ versions, which properly
described, may be said to be versions coming from the planets Mars, in respect of the
plaintiff and Jupiter, in relation to the defendant, that such an exercise is clearly
unavoidable in the present circumstances.
[43] From the evidence led, it is clear that the plaintiff alleged and testified that the
agreement between the parties was for it to effect repairs on the truck and trailer and
that it is that amount that the defendant, despite demand has refused and/or neglected
to pay. The plaintiff totally denies what is alleged by the defendant, namely that the
parties entered into an oral agreement in terms of which the defendant would let the
4 2006 (1) NR 168
17
truck and trailer to the plaintiff for an agreed fee. Which of the two versions should be
upheld if one applies the useful approach in case law as indicated immediately above?
To be able to do so, I will inevitably have to consider the evidence of both parties in the
respects mentioned in the case law and to make the necessary conclusions.
The analysis of the evidence and findings on credibility and fact
[44] The plaintiff’s witnesses adduced their evidence in a manner that, when largely
viewed can be said to have, for the most part, been corroborative of each other. They
were as calm as a cucumber when delivering their evidence in-chief. When the
searching light of cross-examination was brought to bear on them, contradictions in their
respective pieces of evidence began to emerge. I will give a few examples of this.
[45] The first glaring example of the contradiction between the plaintiff’s witnesses
and which was in my view, very material, related to the issue whether the defendant, as
put to the said witnesses in cross-examination, did take the vehicles to Lubbe’s for
service. The evidence of PW1 was that the truck and trailer had not been serviced at all.
In this connection, PW1 pointed out a plethora of faults that he said he found on the
vehicle and which suggested the truck and trailer were in dire need of exhaustive
repairs. He totally denied the version put to him on the defendant’s part that the said
items had been taken to Lubbe’s for service as later stated by the defendant.
[46] PW2, on the other hand, testified that the defendant did say to him that he had
taken the truck and trailer to Lubbe’s for service, which, as indicated above, PW1
discounted as false. PW2 stated that the defendant however stated that he was not
happy with the quality of service that had been rendered at Lubbe’s in certain respects.
In this regard, I do find for a fact that the defendant’s version that he took the vehicles
for service at Lubbe’s is true in as much as it finds corroboration in the evidence of the
PW1. To this extent, I am of the considered opinion that the evidence tendered by the
plaintiff, in particular by PW1 is false and was deliberately tendered in attempt to throw
dust into the court’s eyes. It should be pointed out in this regard that the defendant even
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produced documents in evidence, showing the payments he effected to Lubbes for their
services.
[47] PW2 also had his own shortcomings. Although in his witness statement, he had
stated that he had dealt with the defendant and was au fait with the invoices tendered
etc., when cross-examined closely on the repairs allegedly done on the defendant’s
vehicles, he suddenly changed his tune and stated that he was not involved in the
administration part of the business, that being the exclusive domain of his brother PW1.
This change of front did not sit comfortably with the court. Considered in the context of
the provisions of rule 93, it is clear that PW2 perjured himself as he confirmed that the
statement was true in every respect and did not, at a propitious moment, correct
whatever errors or inaccuracies were in the statement.
[48] I noticed that when PW2 was placed on the ropes in cross-examination by Ms.
Angula, he overheated at times. One instance that sticks to mind was when he was
taxed about the allegation that the defendant was unhappy about the services rendered
by Lubbe. When asked pointedly what it was that the defendant unhappy about, PW2
became evasive and the question, which was very clear had to be repeated. I
accordingly drew an adverse inference from his performance in this regard. It is also
worth noting that when Ms. Angula put to PW2 that the defendant never requested the
plaintiff to repair and service the truck, his answer was telling. He said that he had no
comment.
[49] Besides this contradiction, there are some objective facts that, in my view, serve
to militate against making a finding in favour of the plaintiff’s version in this case. I will
put a few of such factors into the focus of the lense. First, on the face of it, the invoices
on which the plaintiff’s claim is predicated, show that the said invoices were issued in
June 2011. Inexplicably, the plaintiff waited until April 2014 to demand the amount
allegedly due to the plaintiff from the defendant. This period is a staggering three years
and no explanation or plausible explanation is given or suggested to the court as to why
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the plaintiff would have waited for this length of time before it initiated the legal
proceedings if its version, as testified, was true.
[50] Tellingly, the evidence of Inspector Maletzky, who can be described as an
independent witness and on whose credence this court is entitled to rely, as he was
unattached to any of the parties to the extent of having any interest, testified without any
serious challenge, that after he met the defendant and learned of his version, he
confronted the plaintiff’s witnesses with the defendant’s version and when the latter
required the invoices to evidence the plaintiff’s claim, the plaintiff’s witnesses failed to
provide him with proof to back their claim of the defendant’s alleged indebtedness. If the
plaintiff’s claim was genuine, there is in my view no reason why the Inspector would not
have been favoured with a copy of the invoice(s) with which he would have tried to
resolve the dispute between the parties. This aspect throws doubt in the truthfulness of
the plaintiff’s claim and correspondingly strengthens the defendant’s version as I shall
show as the judgment unfolds further.
[51] Another aspect that does not cover the plaintiff’s case in glory and which
correspondingly reinforces the defendant’s version is the plaintiff’s reluctance to meet
with the police to try and resolve the defendant’s complaint lodged against the plaintiff’s
witnesses. In this regard, the Inspector testified, without being questioned on this, and if
at all, not casting any doubt on the truthfulness of his story, that he spoke to the
plaintiff’s witnesses and asked them to come to him to try and resolve the defendant’s
complaint on numerous occasions.
[52] Despite giving numerous undertakings, the plaintiff’s witnesses did not attend to
the police. It is common cause that the police had to obtain a search warrant in order to
gain access to the plaintiff’s property in order to see and attach the defendant’s property
in the plaintiff’s possession. This does not cast the plaintiff’s witness in a favourable light
at all and renders their version highly improbable and inherently suspect. This turn of
events is also consistent with the defendant’s version that he also tried calling the
plaintiff’s witnesses for a long time and they ended up not picking up his calls.
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[53] It is in evidence that the defendant, out of sheer desperation and frustration, then
approached the Namibian police to lodge a complaint of theft by false pretences. In this
regard, it is important to see the defendant’s state of mind at the time that he
approached the police to lodge the complaint. From the defendant’s statement made to
the police, dated 29 November 2012, the defendant’s story has been as constant as the
Northern star, namely, that he had an agreement with the plaintiffs for the rental of the
vehicles when the plaintiff could not meet his asking price for the vehicles. I accordingly
find that if the defendant’s story was contrived, there would be serious and
irreconcilable inconsistencies in his story and which would render his story not worth
believing. The plaintiff’s version has, on the above analysis, raised clearly disquieting
aspects.
[54] That is not all. It is important to note that the pictures captured by the police and
marked exhibits ‘L’ 3 and 4, show the vehicles in the state they were in when the police
were finally able to execute the warrant of search. The defendant’s vehicles were found
with what appears from the undisputed evidence of Inspector Maletzky, to be false
registration numbers. It is important to note that the defendant had not had access to
the vehicles for a period of about two years before this date and when he could finally
set his eyes to his possessions, they were enamoured in false registration numbers
when they had all along been in the plaintiff’s possession. In my view, the plaintiff’s
witnesses deserve to have taken the court into full confidence by disclosing how these
palpably false registration numbers were affixed to the defendant’s vehicles. It was for
the plaintiff and not the defendant to explain this.
[55] Clearly, an unfavourable impression of wrong-doing attaches to the plaintiff’s
witnesses in this regard and one that tends to suggest inexorably that the vehicles were
being used for one purpose or the other by the plaintiffs. They had a duty to explain why
the vehicles were so enamoured by they did not. If their version was true, and that the
vehicles had come for repairs only, there would have been nothing that would warrant
that the vehicles be dressed in false registration plates.
21
[56] The inference that the plaintiff’s witnesses were engaged in untoward conduct
inconsistent with merely effecting repairs to the vehicles is, in the circumstances,
irresistible. This is particularly so in the absence of a plausible explanation when the
plaintiff’s witnesses had every opportunity to explain this rather curious find by the
police. In point of fact, the other irresistible inference, is that the plaintiff’s witnesses
either used the vehicle having been adorned with false identity numbers or intended to
do so and either intention is consistent with the defendant’s version that the vehicles
were to be in the plaintiff’s hands for business, with the onus on the plaintiff to prepare
the vehicles for roadworthiness. This discovery by the police is, in my considered view,
inconsistent with and at odds with the plaintiff’s version.
[57] It must also not sink into oblivion that the plaintiff’s main business was not in
mechanical work and in point of fact, PW2 stated that their work was primarily in
trucking, meaning that they were interested in procuring trucks at some stage for their
business. The defendant actually testified that he was once approached by the plaintiff’s
witnesses who wanted to purchase same. It also became clear in evidence that neither
of the brothers were qualified mechanics, which would reasonably have induced the
defendant to submit his truck to them for mechanical repairs and service, especially
after having taken the vehicles to Lubbes. This fact, in my view tends to strengthen the
defendant’s version, whilst correspondingly casting serious doubt on the plaintiff’s
version. It would indeed be preposterous for the defendant to take his vehicles to
Lubbe’s who are specialists and be unhappy with their work as alleged and then submit
his imported vehicle to the plaintiff which is not in the line of business of doing
mechanical works and repair of trucks and trailers.
[58] It would be akin to a potential client refusing to be represented by a duly qualified
and admitted legal practitioner and submitting the case to a para-legal. After all, the
plaintiff’s name should not sink into oblivion as it speaks volumes about the plaintiff’s
core business, namely the hiring of trucks and plant. There is nothing at all said about
the mechanical expertise that is claimed in this matter.
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[59] I must, however, mention that the defendant was not without fault either. It was
put to the plaintiff’s witnesses in cross-examination that the defendant would say that he
did not know where the plaintiff’s premises were at the time the vehicles were recovered
by the police as stated earlier. The evidence of Inspector Maletzky on the other hand
was to the effect that it was the defendant who actually led them to the place where the
vehicles were eventually located and this does not place the defendant in a favourable
light at all. That notwithstanding, I am of the view that this blight does not constitute
sufficient reason to debunk the defendant’s evidence in its entirety. This issue does not
materially detract from the quality of his evidence on the other issues, viewed in the
context of the rest of the evidence.
[60] In the circumstances, I am of the considered view that the plaintiffs have failed on
a balance of probability, to show that the agreement between the parties was for them
to service the defendant’s vehicles for a price. The nature of their business and the
reason for the defendant to submit the vehicles seem to favour the defendant’s version
in my view.
[61] On the other hand, as shown elsewhere above, the version of the defendant
appears to be consistent with the probabilities in this matter. Notwithstanding the one
area in which I have criticized him, he adduced his evidence matter-of-factly and stood
up very well to cross-examination, although he appeared to be a man of shy disposition.
The objective facts attendant to the matter, in my view are consistent with his version for
the reasons stated above.
[62] A person who relies, as does the defendant, on a contract of hiring and letting,
must show that the agreement contains the following elements, namely, (a) an
undertaking to deliver the thing; (b) an agreement for the lessee to temporarily have use
and enjoyment of the thing; and (c) an undertaking by the lessee to pay rent. 5 I am of
the considered view that the first two elements are proved indubitably by the evidence.
5 Harms, Amler’s Precedent of Pleadings, 7th ed, p 253-254
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There is, in particular, no doubt that the plaintiff did receive delivery of the truck and
trailer and that the plaintiff used same. An inference of use of the items, further than the
use to store the items of PW1, in my view, is the adorning of the vehicles with false
number plates as discussed elsewhere above in the judgment. There is no reason
furnished or suggested as to why the said vehicles were so adorned if it was not to use
them for one purpose or the other for the plaintiff’s or its witnesses’ benefit.
[63] Regarding the last element, I am of the view that taken as whole, and particularly
with the rejection of the plaintiff’s version for the reasons stated above, I am of the
considered view that there could, in the circumstances, have been only one reason for
the defendant to have left the truck and trailer in the plaintiff’s possession and it is that
pleaded and testified to by the defendant under oath. I find that he had no reason to
manufacture this oral agreement, to the extent that he even went to the police to make a
statement thereon if the parties had not agreed to this arrangement. I accordingly find,
on the balance that he has made out a case for the agreement and the damages he
suffered as a result of the plaintiff keeping the vehicles and not remitting any payments
to him.
[64] I do not, however, find that the defendant was able to make out a case for the
claim for payment of the amount of N$ 25 000, being in respect of reasonable costs for
repairing the damage to the truck and trailer after he received same from the plaintiff.
No documents in proof of the money expended in doing so were produced and no valid
reason for not having done so were proffered. In fairness and in acting appropriately as
an officer of this court, Ms. Angula correctly conceded in her heads of argument that
such a case had not been made out. I accordingly have no option but to dismiss this
claim.
[65] In the premises, and for the foregoing reasons, I issue the following order:
1. The plaintiff’s claim is dismissed.
2. The defendant’s claim in respect of claim 1 is upheld.
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3. The defendant’s claim in respect of claim 2 is dismissed.
4. The plaintiff is ordered to pay the defendant an amount of N$ 260 000 with
interest on the aforesaid amount at the rate of 20% per annum, calculated
daily from the date each monthly rental became payable, to date of final
payment.
5. The plaintiff is ordered to pay the costs of the suit
____________
T. S. Masuku
Judge
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APPEARANCES:
PLAINTIFF: S Kenny
Instructed by Theunissen, Louw & Partners
DEFENDANT: E Angula
Instructed by AngulaColeman Inc.
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