Title: A combined summons dated 14th April 1999, Mr
Author: ziale
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CASE NO.: SA 07/2001

IN  THE  SUPREME  COURT  OF  NAMIBIA

In the matter between:

FIRST  NATIONAL BANK OF NAMIBIA LTD				   APPELLANT

And

ALOYSIUS  ABRAHAMS						          RESPONDENT

Coram:  		Strydom, C.J.;  O’Linn, A.J.A.  et  Chomba, A.J.A.
Heard on:		10/10/2001
Delivered on:	28/03/2002

APPEAL  JUDGMENT

Chomba, A.J.A.:	By a combined summons dated 14^th April 1999, Mr. Aloysius Abrahams commenced civil proceedings in which he was claiming  damages for breach of contract.  The action was against the First National Bank and was tried by Levy, A.J., in the High Court.  Judgment was given in favour of Mr. Abrahams  who was awarded N$198,905.32 in damages, together with  interest at the rate of 20% from the date of the summons, and costs.  Being dissatisfied  with both the verdict and award,  the First National Bank has appealed to this court.  For the sake of convenience, I shall in this judgment refer to the Appellant and Respondent by the roles they had at the trial, namely the Respondent as the Plaintiff and the Appellant as the Defendant.

Mr. R.W.F. McWilliams SC,  assisted by Advocate Vivier and Mr. David Beasley SC, assisted by Advocate B. Maselle, appeared before us representing the Defendant and Plaintiff respectively.  I would like, at the outset, to pay tribute to all the Learned Counsel  for the erudite manner in which they presented their submissions and the evident illustrious  preparations they made in anticipation of the appeal hearing.

In the Particulars of the Claim accompanying the combined summons it was alleged that on or about 16^th March 1994 at  Windhoek the Defendant,  represented by its duly authorized but unnamed employee,  entered into a Suspensive Loan Agreement with the Plaintiff.  The agreement entailed purchase by the Plaintiff of  two trailers which were to be supplied by a third party,  while the Defendant was to finance the transaction by paying to that third party a sum of N$80,000 in respect of the one trailer, the  Zali, and  N$65,000 for the second trailer, the Zelna.  The total financing involved was N$171,817 which included various bank charges.  According to the agreement, which was in writing and executed by the parties with their respective witnesses on the 16^th of March 1994, the Plaintiff was to repay that amount by way of instalments spread over a period of 60 months, commencing on 1^st May 1994.  the last instalment was payable on the 15^th March 1999.

The Suspensive  Sale Agreement was produced by the Plaintiff by mutual consent.  It shows the Plaintiff as the buyer and the Defendant as the Seller.  The serial or chassis numbers on the trailers are shown as 880315143060 for the Zali and 0693927 for the Zelna.  All these details, together with those mentioned in the preceding paragraph, are reflected on the obverse side of the agreement, while on the reverse side there are printed a number of conditions to be observed by both parties.

It is now necessary to summarise the essence of a Suspensive Sale Agreement.  An intending buyer of specific and identified goods would conclude negotiations with the supplier thereby ascertaining the goods and also the purchase price.  The buyer is required to satisfy himself/herself that the goods are fit for the intended purpose.  Thereafter he/she would request the supplier to furnish an invoice detailing the goods to be sold and purchased, name and address of the supplier, name and address of the buyer and the price.  The invoice, is addressed to the financier, usually a bank.  The buyer would then apply to the bank for the financing of the transaction on the strength of the invoice.  Upon acceptance of the application, a Suspensive Sale Agreement, which is a stereotype printed   form is completed and executed as hereinbefore stated.  Subsequently a delivery note, also a stereotype printed form is completed.  The latter is addressed to the supplier as  per the invoice.  The delivery note in effect calls on the supplier to deliver the goods in good order and to the satisfaction of the buyer who is to accept delivery as an agent of the bank.  Further the note states that after the buyer has inspected the goods, the supplier should arrange for the buyer to sign an acknowledgment of the delivery which is the bottom part of the delivery note itself.  The bank thereby undertakes, upon receipt by it of the duly completed acknowledgement of delivery, to pay the purchase price to the supplier.

Before reviewing the evidence in this matter, let me reproduce herein a few of the salient conditions in the Suspensive Sale Agreement.

           Para 2 .   Declaration  and Acknowledgment

2.1.1	Buyer agrees to recognize FNB as the new owner
and to hold the goods as bailee  on behalf of FNB
subject to the terms of the agreement and that any right recorded herein in favour of Seller,  shall on cession  enure  to the benefit of FNB

2.1.2	acknowledges that prior to the signing of the agree-
ment  and the schedule (except in respect of the registration number, if any of the goods) were fully completed and that the particulars set forth therein are true and correct.
          
2.2	 If  FNB  is  Seller  under  this  agreement,  Buyer  shall,   when 
Receiving delivery of the goods be deemed to be acting as the agent of FNB for the sole purpose of accepting delivery on behalf of FNB from the supplier, being the person selected by Buyer from whom FNB shall have purchased the goods, which Buyer shall have selected  and approved as being fit for the purpose for which Buyer requires them, for resale to Buyer in terms of this agreement.

           Paragraph 4  - Ownership and Risk

4.1	Ownership in the goods shall remain vested in Seller and not 
pass to Buyer until receipt by Seller of all amounts  payable by Buyer under this agreement.

4.2	All risk  of loss damage  destruction or otherwise  in and to the goods shall pass to Buyer on  delivery to Buyer  or on signature  of this agreement whichever is the earlier, and all costs of delivery and installation of the goods and insurance in transit shall be borne and paid by Buyer.

Paragraph 7 -  Use of the Goods

7.1	Buyer shall at all times, keep the goods in his possession and control, and take reasonable  care in the use of the goods and shall at his own cost  and expense maintain the goods in proper working order, and if a motor vehicle in a roadworthy  condition and shall protect them from loss or damage if the goods are not to be kept at Buyer’s chosen domicilium.  Buyer shall upon taking delivery  of the goods notify Seller in writing of the address of the premises (“the designated address)” in or upon which the goods will be kept and  notify Seller in writing immediately there is any change in such address or of the place where the goods are kept.  Furthermore Buyer shall at his own  expense keep the goods free from attachment, hypothec or other legal charge or process and shall not without the prior written consent of Seller sell, let, loan, pledge, transfer, or otherwise  encumber the goods in any way or permit any lien  to arise in respect of the goods.

As earlier noted, the Plaintiff filed particulars of claim in support of his combined summons.  It is necessary to refer only to some of the paragraphs of these  particulars, viz:

	Paragraph  3

On or about the 16^th March 1994 and at Windhoek the Plaintiff acting personally and the Defendant, represented by a duly authorized employee entered into a written Suspensive Sale Agreement in respect of two trailers – the one a Zelna and the other a Zali – which are hereinafter referred to as the “trailers”.  Copies of the obverse and reverse sides of the aforesaid Suspensive Sale Agreement are annexed hereto marked “A1” and “A2” respectively.  The Plaintiff prays that the  terms of the Suspensive Sale Agreement be incorporated herein as if specifically traversed.

	Paragraph  4

It was a material express, alternatively implied, term of the aforesaid suspensive sale agreement that the Defendant was the owner of the trailers and would be able to pass ownership of the trailers to the Plaintiff.

	Paragraph  5

The Defendant breached the aforesaid written Suspensive Sale Agreement in that, (the Defendant):-

5.1	during or about March 1995 entered into a written Suspensive Sale Agreement with Mr. Bindeman in terms whereof the Defendant sold to Mr. Bindeman who purchased from the Defendant, the Zali trailer with chassis number 880315143060 and pursuant to that agreement Mr. Bindeman obtained ownership of the trailer.  As a consequence the Defendant was not able to pass ownership of the trailer to the Plaintiff.

5.2	at the time of conclusion of the agreement was not the owner of the trailers.

6.       a)	As a result of the aforesaid breach the Plaintiff has cancelled,     
                      alternatively, hereby cancels the written Suspensive Sale 
                      Agreement
      
            Alternatively to 6 a):
b)	Performance in terms of the written Suspensive Sale Agree-
ment was impossible at the time and during the existence
of the said agreement inasmuch as the Defendant was
not the owner of the trailers nor in a position to transfer
ownership in and to the trailers to the Plaintiff.

c)	As a result of the aforesaid the agreement terminated, 
alternatively was void .
d)	The Plaintiff is not in a position to tender return of the trailers
to the Defendant inasmuch as the Defendant, alternatively,
a third party has taken possession thereof.

Paragraph 7 – Alternatively  to  paragraphs  4  to  6   aforegoing  the 
                          Plaintiff pleads :-

a)	the  Defendant,  at  the  time  of  entering  into  the  written 
agreement and  represented  by an  authorized  employee,
represented to  the  Plaintiff  that  it  was  the  owner of  the 
trailers.

b)	The aforesaid representation was material and was made:
i)	with the object of inducing  the Plaintiff to enter into
the written  agreement  with the Defendant: and/or
ii)	with the knowledge that the  Plaintiff  would  act on 
the assumption that:
A.	the Defendant was the owner  of the  trailers;
B.	the Defendant would at the conclusion  of the
agreement be able to  give  the  Plaintiff  free 
and undisturbed possession of the trailers,
and the Defendant owed a duty of care towards the Plaintiff to provide correct information.

c)	The  Plaintiff  relying  on  the  truth  of  the  representation 
entered  into the  written Suspensive Sale Agreement with 
the Defendant.
d)	At the time of negotiating the agreement and at the time of 
entering into the written suspensive sale agreement, the 
respresentation was false in that the defendant was not the owner of the trailers and such representation was made negligently alternatively intentionally.
e)	As a result of Defendant’s misrepresentation as aforesaid the Plaintiff cancelled alternatively hereby cancels the agreement.
f)	Alternatively to paragraph 7 (e) above had the Plaintiff known of the true position, the Plaintiff would not have concluded the agreement with the Defendant on any basis at all.
g)	The Plaintiff is not in a position to tender return of the trailers to the Defendant inasmuch as the Defendant, alternatively a third party has taken possession thereof.

In its pleading in reply to the claim by the Plaintiff the Defendant denied the allegations in all the paragraphs reproduced above from the particulars of claim and put the Plaintiff to strict proof, as indeed it did to the rest of the controversial particulars.

The only witness called in support of the Plaintiff’s case was Mr. Johannes Bindeman.  Herein below is a summary of his evidence:

At one time Bindeman was the owner of both trailers which, as we have already seen, were the subject of the Suspensive Sale Agreement between the Plaintiff and the Defendant on the 16^th of March 1994.  Bindeman  testified that he purchased the Zali,  also known as the Zanli semi-trailer, from a Mr. Du Plessis in Johannesburg sometime in 1993.  He had it registered in Aranos, Namibia, as N149AR.  Regarding the Zelna, he stated that he bought it from Zelna  Trailers in Alberton in 1992 or 1993.  Bindeman  subsequently registered the Zelna as N567AR.  Operationally he used the Zali semi-trailer at the front  and the Zelna at the back, both hooked to the Scania horse or Tractor which was also his property.  It would appear that later in 1993 he sold the Scania horse and remained only with the two trailers.  The trailers remained idle for sometime at Bindeman’s farm.  Later a friend and business partner of his, one Andriano Schneider, noticing the idle trailers, suggested to Bindeman that the two trailers could make money.  Schneider  mooted the idea of loaning both trailers, to which Bindeman was agreeable.  Bindeman was imprecise as to the nature of the loan, whether gratuitous or  was by way of renting.

In 1993 or 1994 Bindeman bought another Scania horse.  He later entered into a contract with a company known as Pupkewitz to transport Zinc.  For this purpose he needed, and did recover, the Zali trailer from Schneider.  The actual recovery of the Zali was done some two or three months before he purchased the second Scania horse  - he did this in anticipation of the Pupkewitz contract.   Bindeman further disclosed that from the date of the recovery of the Zali he retained it in his possession throughout until the end of 1998 or  beginning of 1999 when he sold it to one John George Thompson.  In fact under cross-examination Bindeman  disclosed that he remained the owner of the Zali right from the time he bought it in 1993 from Mr. Du Plessis up to the time he sold it to Mr. Thompson  in 1998 or 1999.  Documentation produced before the court a quo indicates that the Bindeman-Thompson Zali sale was similarly by way of a Suspensive Sale Agreement with the Bank  Windhoek as the financier.

It was Bindeman’s evidence  that the Zelna remained with Schneider from  the time when he, Bindeman, retrieved the Zali up to the time  of Schneider’s death in 1997.  However Bindeman did not know the actual physical whereabouts of the Zelna  for sometime both before and after Schneider’s death.  After Schneider’s death Bindeman made some concerted effort to try to locate the Zelna, which had continued to be his (Bindeman’s) property,  and did so through his Attorneys, K.S. Dannhauser.  He did not succeed.

Under cross-examination Bindeman swore that he never sold the Zelna to anybody at all,  thus re-affirming his evidence that Schneider had kept that trailer only as per loan arrangement to which reference has been made earlier  herein.

During his business travels in his newly acquired Scania horse and while towing the Zali trailer attached to it Bindeman once came across Abraham’s driver.  This was at the Ariamsvlei border post between Namibia and South Africa.  He noticed that coupled to that driver’s own horse was the Zelna and another trailer which had same registration number, that is to say N149AR, which belonged to the Zali trailer which was at that time connected to Bindeman’s horse.  On being questioned about the Zelna, the driver explained that a Mr. Abrahams, the Plaintiff herein, had purchased it from somebody.  Later Bindeman brought to the attention of Schneider this anomaly of the duplication of the Zali  registration number on one of Abrahams’ trailers.  Schneider promised that he would rectify the situation.  As for the Zelna Schneider explained that Abrahams had just borrowed it from him.

Bindeman also testified that at one time he was indebted to Schneider in the sum of N$55,000 but did not have the means of paying it back.  So he asked Schneider to issue an invoice  to enable Bindeman get money from the Defendant.  To this end Schneider made out an invoice on paper letter headed, “A.C.C.  Agencies”.  This documentation is to be found at page 226 of Volume C of the Bundle of Documents with the following details written or printed on it :  
	
	Addressee   		         :	First National Bank of Namibia, Box 2941, 
Windhoek

	Invoice No.		         :  0140
	Date			         :  28^th March 1995
	Quantity and description:  1 x 1995 Rebuilt  Henred Trailer
	Chassis    No.		: 880315143060
	Buyer				: J.K. Bindeman, Box 318, Aranos
	Price				:  N$95,000.

Needless to state that the supplier, according to this invoice, was A.C.C. Agencies, a company owned by Schneider.

In consequence of that invoice, the Suspensive Sale Agreement was concluded and executed by a representative of that Bank and by Bindeman.  The details of the goods subject of the Suspensive Sale Agreement were as per  the invoice aforesaid.  The date of execution of the agreement is shown as 29^th March 1995; mode of repayment 36 monthly instalments with effect from 29^th March 1995 and to be completed on the 28^th of March 1998.  (See at page 225 of Volume C).  One copy of this Suspensive Sale Agreement was handed to Mr. Bindeman.  A copy of this is at page 220 of  Volume C and this copy has the word “COPY”  in bold print across it.  On this copy Mr. Bindeman scored  through the word “Henred” and superimposed over it the word “Zanli”.

The invoice and the Suspensive Sale Agreement were put under scrutiny during cross-examination of Mr. Bindeman.  He disclaimed the latter  as a  Suspensive Sale Agreement and instead called it a mere loan agreement whereby he borrowed from the Defendant N$95,000 and pledged the Zali trailer as a collateral, adding that he needed the money in order to repay the loan to Schneider.  Challenged as to why he used the artifice of the Suspensive Loan Agreement when all that he needed was a loan, Bindeman confessed that not only he alone resorted to such practice when in need of money.  He was also challenged on his self confessed cancellation of the word “Henred” and replacement herewith of a “Zanli”.  Bindeman lamely insisted that the trailer at issue in that transaction was not  a Henred, as he had never ever in his life owned  a Henred trailer.  He further explained that the invoice was not made by himself but by Schneider; equally the insertion of Henred in the Suspensive Sale Agreement was not one of his making, but that of the bank, the Defendant, Bindeman said. When it was bluntly put to him that he defrauded the Defendant in that transaction by representing falsely that he was intending to buy the trailer indicated therein to be  supplied by A.C.C. Agencies, Bindeman apparently found no way of escape and answered  - “Yes, we do this  for me to get the money by the bank”. (see at page 237, lines 16 – 18, Volume 3 of the record of appeal).  In cross-examination Bindeman  confessed that at the time of this Suspensive Sale Agreement the Zali trailer was in fact in his possession at Aranos and that he never purported to buy it from anybody.  Yet on the supporting invoice it was stated that the trailer was to be delivered by A.C.C. Agencies to Bindeman in Aranos.

While under the pressure of cross-examination Bindeman was forced to make the following  admission as reflected at page 226, lines 20 to page 227 line 4 Volume 3 of the record –

“Ms. Vivier Turck 	-	Yes, and you also earlier indicated it is quite 
				possible to remove a plate or to have a plate
				punched out with the same chassis number
				as yours.
	Bindeman		Yes he (ie. Schneider) can do it.
	Ms. V. Turck		You say it is easy to do that?
	Bindeman		Ja
	Ms. V. Turck		So it is quite possible, now there are two trailers
				with the same number, it is possible that they 
				may have had the same chassis number and
				that one was in fact sold to Mr. Abrahams that 
				was not yours?
	Bindeman		The front one, Ja.”

The reproduction and any imprinting of duplicate chassis numbers is also elaborated on at pages 147 – 148 of the appeal record where the following occurs from line 20:

	Ms. V. Turck		Where is the chassis number usually found on
				the trailer?
	Bindeman		You put it under a plate, on small place, they 
				stencil it on a plate.
	Ms. V. Turck		And that can also be removed at leisure?
	Bindeman		Yes.
	Ms. V. Turck		And moved about?
	Bindeman		Yes. A few times he(Schneider) told me he only pay for one trailer and there run now three trailers on my number.”

And at pages 149 – 150 the following dialogue continued in the some vein:

          “Ms. V. Turck		Yes.  Mr. Bindeman, the reason why I ask you
this is, you say that Mr. Schneider practiced in that way, he says you, only need one Zelna and one Zali and thereafter you just change number 
				plates and chassis numbers and things and …….”
	Court			No, who said about chassis numbers, he never
				said that he  changed  chassis numbers.
	Ms. V. Turck		Well, I did ask him whether the chassis number
				could easily be placed on another truck.
	Bindeman		Yes, you could have.
	Ms. V. Turck		It is just a plate that you loosen it  or you can 
				make a duplicate and put it on another truck
				or trailer?
	Bindeman		Yes, everybody can put this chassis number on
				a trailer.  If I built the trailer I quickly just put
				the chassis number on with my own, I built lots 
				of trailers.”

On behalf of the Defendant it has been submitted by Mr. McWilliams, inter alia,  that Bindeman’s evidence was  “wholly unsatisfactory and should have been rejected  in its entirety ” (Heads of Argument at paragraph 27.2).  In further argument at paragraph 27.3 the Appellants’ Heads of Arguments state –
	“Even if one were to accept the evidence of (Bindeman) 
	  upon which the (Plaintiff) relies,  when one analyses
	  this evidence it does not provide a foundation for the
	  (Plaintiff’s) claim”.

In retort to the foregoing, the Heads of Argument on behalf of the Plaintiff state as follows in paragraph 4 :

	“4.1	Bindeman was criticized by Counsel for the Bank
		(Defendant) as being a “poor witness, and unsatisfactory
		in many respects” and whose evidence should be rejected.

4.2	 The Court a quo was fully alert to this criticism.  There is no
doubt that Bindeman was not an ideal witness.  Despite
this, the  court a quo was prepared to accept his testimony
in certain respects.

There are no good grounds for rejecting the approach adopted  by the court below.

No misdirections are relied upon by the bank and general approach   is that an appeal court will be slow to interfere with the findings of  credibility  made by the lower court.  See generally R  v  Dhlumayo and Anor 1948(2) S.A. 677(A)”

Upon a proper reading of the judgment of the trial judge it is indeed correct that to a large extent the verdict in favour of the plaintiff was founded on the credibility tagged to Bindeman’s evidence.  Therefore the submission on behalf of the Plaintiff that the appellate court ought to be slow in interfering  with the trial court’s decision based on the credibility of witness ses was well founded.  It is a well established and recognized legal truism, indeed it is a principle of law, that a trial judge has an advantage over an appellate court in that the judge has seen  and heard the witnesses and therefore is in a better position to assess their credibility.  

In the case of Watt  or Thomas v  Thomas (1947) A.C. 484 Lord Thankerton (sitting in the House of Lords with Viscount Simon, Lord McMillian, Lord Simmonds and Lord du Parq)  stated at page 487 –

“1.  Where a  question of fact has been tried by a judge without a jury and there is no question of misdirection of himself  by the judge, an appellate court which is disposed to come to a different conclusion  on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain and justify the trial judge’s conclusion.

2.	The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any  satisfactory conclusion on the printed evidence.

3.	The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied  that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

Furthermore in Benmax  v  Austin Motor  Company Limited (1955) 1 All ER 326, another House of Lords case,  the headnote reads -

“An appellate court, on an appeal from a case tried before a judge alone should not lightly differ from a finding of the trial judge on a question of fact, but a distinction in this respect must be drawn between the perception of facts and evaluation of facts.  Where there is no question of credibility  of witnesses, but the sole question is the proper inference to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge, and should form its own  independent opinion, though it  will give weight to the opinion of the trial judge.”

In the present case the learned trial judge assessed the evidence of Bindeman by stating the following at page 352 of Volume 4 of the Appeal Record, i.e.  in his judgment –

“(Bindeman) certainly impressed the court with a sound knowledge relating to trailers.  This knowledge was tested  in cross-examination but not dented”.  
And on page 354 he said –
	“Bindeman  is an objective witness with no interest in this matter.”

That assessment quite clearly shows that the judge held Bindeman to be a credible witness.  But was he satisfactory?  And if not, in what respect was he not satisfactory?  The answer to the first part of this question is provided by the Plaintiff’s own appeal advocate Mr. Beasley, who submitted, as shown earlier  herein, namely – 

“Bindeman was criticized as being a poor witness and not satisfactory in many respects.  The court a quo was fully alert to this criticism.  There is no doubt that Bindeman was not an ideal witness.”

This was a concession that Bindeman was not a satisfactory witness, albeit that the court  found him to be credible.  We should therefore explore in what way, his credibility notwithstanding, Bindeman was not a satisfactory witness.  It is necessary to make this exploration and in doing so I propose  to rely on Lord Thankerton’s dictum in Watt or Thomas, supra, when he said –

“The appellate court, either because the reasons given by the trial judge are not satisfactory or it unmistakably  so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then be at large for the appellate court.”

I equally rely on Benmax,  supra,  to the extent that the headnote states that where there is no question of the credibility of witnesses, but the sole question is the proper inference  to be drawn from specific facts, an appellate court is in as a good position to evaluate the facts as the trial judge, and should form its own independent opinion.”

A well worn legal principle states that he who asserts the affirmative must  prove his assertion.  In other words when a plaintiff sets out  particulars of his claim, he thereby makes only allegations.  These  have to be proved.  Indeed we have seen that on all controversial particulars given by the plaintiff herein, the defendant has him to  strict proof.

The basic breach of contract  which is alleged in the present case is that the Defendant, having bought and resold the Zali and Zelna trailers  through the mechanism of the Suspensive Sale Agreement on  the 16th March 1994, later  entered into yet another such agreement on 29th March 1995 whereby one of the same trailers, the Zali, was sold to Bindeman.  As a result of that second resale the defendant, being the person in whom ownership in the trailers was vested under the sale  agreement of 16th March 1994, disabled itself from transferring, at the time of maturity of the  said sale of  16^th of March 1994, such ownership to the Plaintiff.  I pose the question.  Was that breach proved by the Plaintiff’s only witness, Bindeman?

Bindeman’s total evidence in  this regard was that he bought the Zali and Zelna Trailers way back in 1992 or 1993.  He used them in  tandem with his scania horse until sometime later in 1993 when he sold that horse.   The trailers then remained for sometime idle on his farm.  In due course, his friend and business partner, Schneider, borrowed the two  trailers and used them in business.  At yet a later stage Bindeman purchased a second scania horse.  For the purpose of utilizing that horse in a transport contract which Bindeman then had with Pupkewitz, Bindeman withdrew the Zali from Schneider.  The Zali thereafter remained in Bindeman’s physical possession until he sold it to Thompson at the end of 1998 or at the beginning of 1999.  As for the Zelna Trailer, this remained with his friend Schneider up to the time of Schneider’s death in 1997.  Thereafter he took action through his Attorneys to recover the Zelna.

The nearest Bindeman came to  proving that the Zali trailer went through a sale by way of  a Suspensive Sale Agreement on the 29^th March, 1995, was when he stated that during that period Bindeman had a loan of N$55,000 from Schneider.  Not having his own independent means of repaying that loan, he conceived the idea of getting yet another loan from the defendant in order to pay Schneider.  To that end Bindeman asked Schneider to let him have an invoice to present to the defendant.

That invoice, as we have earlier seen, represented that the A.C.C. Agencies, a company owned by Schneider, had a rebuilt Henred trailer, chassis number 880315143060,  for delivery to Bindeman upon payment of N$95,000.  It was on the basis of that invoice that the 29^th  of March 1995 agreement was concluded, showing that the Defendant bought and resold the said rebuilt Henred trailer to Bindeman for the basic price of N$95,000.

I have shown hereinbefore that under cross-examination Bindeman disclaimed the transaction of 29th March 1995 as a Suspensive Sale Agreement; he denied that the trailer concerned therein was a rebuilt Henred, but a Zali; to that end he cancelled the word “Henred” and superimposed over it the word “Zali”, doing so only on the copy supplied to him by the Defendant.  Bindeman conceded  that the copy (of that transaction) which remained with the Defendant, and which was exhibited at the trial during Bindeman’s cross-examination still had the description of the trailer sold as a “rebuilt Henred”.  Moreover, Bindeman denied the clear statement in the A.C.C. Agencies’ invoice suggesting that the rebuilt Henred trailer, which, as we have seen, was, according to Bindeman, not a rebuilt Henred  but a Zali,  to be delivered to Bindeman at Aranos.  Bindeman asserted that in fact at the material time the Zali was in his physical possession at Aranos.  Bindeman moreover brazen-facedly had no option but to confess that as regards the so called Suspensive Sale Agreement of 29^th March 1995 he did defraud the Defendant, the transaction having been a fake sale.

In a nutshell the only credible evidence Bindeman gave regarding his association with the Zali trailer was this.  Having bought it in Johannesburg sometime in 1992 or 1993, it remained in his ownership and possession throughout, save for a period of two to three months when it was on loan to Schneider; he only disposed of it by sale to Thompson in 1998/99. On 29^th March 1995, however, he was involved with Schneider in a cooked up fake sale of the Zali by presenting it to the Defendant as a rebuilt Henred trailer, but otherwise with the same Zali chassis number 880315143060, and, as a result, he obtained N$95,000, out of which he paid Schneider N$55,000. He categorically denied having sold the Zelna to anybody, excepting  its being loaned and retained by Schneider up to 1997 when Schneider died.  

It will clearly be  seen, therefore, that Bindeman’s evidence was a far cry from the allegation of breach asserted in paragraph 5 of the particulars of claim which suggested that the Defendant divested itself of the ownership of the Zali by reselling it to Bindeman on  29^th of March 1995 during the existence and continuance of the Suspensive Sale Agreement which the Defendant had concluded with the Plaintiff on  16^th of March 1994. In fact Bindeman’s evidence was blatantly in contradiction with the Plaintiff’s allegation that the plaintiff bought the trailers through the Suspensive Sale Agreement on the 16^th of March 1994.  This begs the  question whether  the so called Suspensive Sale Agreement of  16^th of March 1994 was not another bogus transaction.  

It is my considered view that once the averment in  paragraph  5 of the particulars of claim is irreparably dented,  then the Plaintiff  is left with no leg to stand on in his claim against the Defendant.  That  averment was most pivotal to the case against the Defendant. 

The strength of a party’s case must be self sustaining: it must never be propped up by reason of the weakness of the case of the opposite side.  This is a truism to which the trial judge in this case, with due respect to him, seemed oblivious.  His judgment shows that he dwelt in extenso on the weaknesses of the Defendant’s pleadings.  In doing so the learned judge allowed those weaknesses to over shadow the  emptiness of the Plaintiff’s supporting evidence.

If  the obverse side of the Plaintiff’s case does not stand the test of scrutiny because of the failure by Bindeman’s evidence to prove the Plaintiff’s basic averment, let us look at its reverse side – the case as presented by the Plaintiff  having been the unusual witness for the Defendant.  I propose to do this merely ex abundante cautela .  Let us see whether that case fills up the yawning gap which Bindeman’s evidence shied away from plugging .

In his evidence the Plaintiff, Abrahams, emphatically said at the outset that when he entered into the agreement of 16^th March 1994 earlier mentioned, he did not take delivery of the trailers soon after the agreement was executed.  It was his evidence that the trailers  were delivered to him three or four months after the execution of the contract, adding that that was because the trailers were not in good working condition at the time of the sale.  His attention was drawn to the delivery receipt to be found at page 90 of the volume A of the record of appeal.  That receipt contained the information requesting A.C.C. Agencies, the suppliers of one Zali trailer and one Zelna trailer  to deliver to the Plaintiff as a customer of the Defendant and was signed on the 16^th of March 1994 by a representative of the Defendant.  It is there stated  also that upon delivery of the goods sold, the trailers, the customer should inspect the goods and then sign an acknowledgement of delivery.  During the questioning by Ms. Vivier Turck,  Abrahams acknowledged his signature  on the said receipt and added that he appended it thereon on 16^th March 1994, the very day of the Suspensive Sale Agreement.  Notwithstanding his admission that he so signed the acknowledgement the Plaintiff asserted that he did not take delivery of the trailers as acknowledged.  The Plaintiff was further asked if he had seen or inspected any of the two trailers before he bought them by way of the Suspensive Sale Agreement.  He answered that he did not.

An affidavit which is at pages 14 – 20 in volume A of the record was put to the Plaintiff while he was in the witness box.  He acknowledged it to be an affidavit he swore in regard to the court action he had instituted against Schneider.  The position as represented in that affidavit was succinctly that by the Suspensive Sale Agreement of 16^th of March 1994 aforesaid the Plaintiff bought the Zali and Zelna trailers from  Schneider. However the Plaintiff did not take delivery of the trailers upon concluding the agreement that day.  He instead took delivery on the 15^th of July 1994.  This was because at the time of the agreement the trailers were not in good working order.  By 15^th of September 1994 the mechanical problems of the trailers had worsened and the plaintiff had to, and did, return the trailers to Schneider for further attention.   

The Plaintiff swore in terms of that affidavit that while the two trailers were with Schneider after their return to him, the Plaintiff’s pleas for Schneider to surrender them back were falling on deaf ears.  Schneider was continually giving excuses for non-delivery.  Eventually at the end of February 1995 the Plaintiff and Schneider agreed that Schneider would repurchase the two trailers from the Plaintiff at a price equivalent to the outstanding balance on the Suspensive Sale Agreement of 16^th March 1994.  That deal was concluded legally with the involvement of the Attorneys of both the Plaintiff and Schneider.

At pages 320 to 321 occurs a text as to how the foregoing repurchase proceeded  -
“Vivier Turck 	Yes. What was your concern in regard to the payment to the Bank, What was your way?

Plaintiff	Well there were no concerns.  After (Schneider) took over the trailers he said that he would pay for the trailers.  But after he passed away the bank came back to me. 

Vivier  Turck	Sir, is it correct that (Schneider) paid for these trailers until he passed away?

	Plaintiff	Yes.  That is correct.

Vivier Turck	That this whole application was brought about because at one stage (Schneider) didn’t pay and he didn’t comply with his commitment to you?
	Plaintiff	That is correct, on a certain stage he didn’t pay.
     Vivier  Turck	And you took him to court to enforce your agreement, is that correct?
	Plaintiff	That’s  correct”

It is patently  clear to me that the plaintiff did not cut a good figure as a witness.  In  a nutshell his story was that after he had concluded the Suspensive Sale Agreement and acquired the two trailers, he returned them to Schneider so that the latter could put them into good working order.  Schneider procrastinated in that assignment and by February 1995 the Plaintiff was fed-up and decided that Schneider should retain the trailers permanently.  He therefore resold them back to Schneider.  That resale was by way of Schneider taking over the Plaintiff’s obligations under the Suspensive Sale Agreement of  16^th March 1994.  That deal concluded, Schneider duly paid subsequent instalments as they fell due.  Regrettably, Schneider died before he finished paying the outstanding balance.  

The question I pose is, if the Plaintiff sold the Zali and Zelna trailers back to Schneider in February 1995, how could the Defendant sell the very same Zali trailer on the 29^th March 1995 to Bindeman?  In my view the pleading in paragraph 5.1 of the Plaintiff’s particulars of claim does not make sense.

The contents of the affidavit in the action between the Plaintiff Abrahams and Schneider were put to the Plaintiff during examination by Ms. Vivier Turck and Abrahams conceded that everything in it which was put to him was true and correct.   Therefore those parts of the affidavit became part of Mr. Abrahams’ evidence in the instant case.  He adopted them.  It is consequently surprising that the learned trial judge in the court below never made any reference to that very crucial evidence.  In my view the learned trial judge fell into error in this regard.  He misdirected himself by failing to consider that relevant evidence.

On a critical analysis of the evidence of Bindeman and that of the Plaintiff what emerges is this.   Bindeman bought the Zali and Zelna in 1992 or 1993.  In due course he loaned the two trailers to Schneider, but later retrieved the Zali.  He thereafter  kept the Zali until at the end of 1998 or beginning of 1999 when he sold it to Thompson.  The Zelna remained iin the possession of Schneider from 1993 until 1997 when Schneider died.

Bindeman’s evidence has put into question the authenticity of the reputed suspensive sale agreement of 16^th March 1994.  Perhaps that explains why Abrahams faked signing for acceptance of the delivery of the 2 trailers on 16^th March 1994 when in fact nothing was delivered to him that date.  It also seems to explain why  Abrahams, though in accordance with the printed conditions of the suspensive sale agreement of 16^th March 1994 he was required to inspect the trailers to satisfy himself that they were fit for the intended purpose, did not in fact inspect them.

Regarding the Plaintiff, Abrahams’ evidence as told in the affidavit which has received scrutiny in this judgment, after what now appears to be a fake sale on 16^th March 1994, except for a short period between 15^th July 1994 and 15^th September 1994 when the Plaintiff supposedly took delivery and kept the two trailers, the two trailers were in the possession  of Schneider.  This was because Schneider was ostensibly trying to repair them or was giving lame excuses for not delivering  them back to the Plaintiff.  Late in February 1995 the Plaintiff  resold them to Schneider through a legally arranged agreement.  This resale took place at a time when the Suspensive Sale  Agreement of 16^th March was subsisting. 

By clause 4.1 of the printed conditions of that Suspensive Sale Agreement ownership of the trailers vested in the Dependant upon execution of that agreement.  Consequently, the purported resale by the Plaintiff of the trailers in February 1995 breached that condition, because he had no power to transfer  ownership.  The Plaintiff cannot now be heard to allege that the Defendant sold the Zali trailer to Bindeman on 29^th March 1995, because by that date both trailers had been resold by the Plaintiff to Schneider.  The Plaintiff’s claim in this matter therefore seems to be spurious.

At the end of the day the situation is that neither Bindeman nor the Plaintiff succeeded in giving credence to the critical averments occurring in the Plaintiff’s  particulars of claim.   To my mind, therefore, the learned trial judge erred in giving judgment in favour of the Plaintiff whose case remained unproved at the end of the trial.

I would allow this appeal.    

________________________
CHOMBA, A.J.A.

I agree

________________________
STRYDOM,  C.J.

I agree.

________________________
O’LINN,    A.J.A.

STRYDOM C.J.:

I agree with my brother Chomba that the appeal in this matter should succeed.    Mr. MacWilliam, on behalf of the appellant, submitted that this was a matter where the Court should grant the costs consequent upon the employment of two Counsel.   I agree with Counsel that the matter was not easy and that it involved complicated issues.   This is in my opinion brought out by the fact that the respondent also employed the services of Senior Counsel.    I am therefore satisfied that this is an appropriate instance where the Court should allow the costs of the appeal to be taxed on the basis of the employment of two Counsel.

In the result the following order is made:

1.	The appeal succeeds with costs, such costs to include the costs consequent upon the employment of two Counsel.

2.	The judgment of the Court a quo is set aside and the following judgment is substituted therefore, namely:

“The plaintiff’s claims are dismissed with costs.”

________________________
STRYDOM, C.J.

I agree.

________________________
O’LINN, A.J.A.

I agree,

________________________
CHOMBA, A.J.A.

COUNSEL ON BEHALF OF THE APPELLANT:	Adv. R.W.F. Mac William, S.C.
ASSISTED BY					    :	Adv. S. Vivier-Turck

COUNSEL ON BEHALF OF THE RESPONDENT:	Adv. D.M. Beasley, S.C.
ASSISTED BY					       :	Adv. B.W. Maselle