NO (P). I 698/2009
THE HIGH COURT OF NAMIBIA
the matter between:
BANK NAMIBIA LTD
& ASSET FINANCE
09 July 2010; 02, & 03, August 2010; 06 -09 September 2010
The plaintiff instituted action against the defendant in which action
the plaintiff claims cancellation of contract and restitution of the
purchase price which was paid by way of a deposit of N$30 000-00
(Thirty Thousand Namibia Dollars) and fifty three monthly instalments
of N$3 159-13 (Three Thousand One Hundred and Fifty Nine Namibia
Dollars and Thirteen Cents).
In the particulars of claim the plaintiff amongst others made the
On the 03rd
of March 2006 he entered into a written instalment sale agreement
with the defendant in terms of which he purchased a 2002 Audi A4
vehicle from the Defendant for the sum of N$ 170 593-02. A copy of
the instalment sale agreement was attached to the particulars of
The contract was entered into on the common assumption that the motor
vehicle that was sold by the defendant was a 2002 Audi A4 second hand
The motor vehicle is not what was assumed by the parties but is in
fact a 2002 Audi A4 rebuild model.
There is a material difference between the market value of a 2002
Audi A4 second hand motor vehicle and a 2002 Audi A4 rebuild model of
approximately N$50 000-00.
Had he known that the 2002 Audi A4 vehicle was a rebuild, he would
not have bought the vehicle from the defendant nor would he have paid
the purchase price of N$150 000-00 for that vehicle.
The agreement is accordingly void as a result of the common mistake
between the parties when they entered into the agreement.
During the cause of the hearing the plaintiff applied to amend the
particulars of claim in respect of the allegations of common mistake.
I granted the application, giving the defendant the opportunity to
also plead to the amended particulars. The amended particulars of
claim introduced an alternative cause of action and plaintiff amongst
others alleges (in the amended particulars of claim) the following:
On or about the 03 March 2006 the Defendant represented to the
plaintiff that the plaintiff was purchasing a second hand 2002 Audi
A4 model motor vehicle from the Defendant.
The defendant knew that the plaintiff would act on the representation
that the motor vehicle in question is a second hand motor vehicle and
owed a duty of care towards the plaintiff to provide the correct
information regarding the status of the motor vehicle, to the
The status of the motor vehicle was material to the agreement and was
made with the intention of inducing plaintiff to act thereon.
Plaintiff relying on the truth thereof purchased the motor vehicle
from the defendant.
The representation by the defendant that the motor vehicle was a
second hand motor vehicle was false as the motor vehicle was in fact
a build up or rebuild motor vehicle.
The defendant acted with intent alternatively negligently in failing
to disclose to the Plaintiff that the vehicle was a rebuild vehicle,
because it did not discharge its duty of care towards the plaintiff
by alerting him to the status of the vehicle as being rebuild.
As a consequence of defendant's misrepresentation, the plaintiff
entered into a written instalment sale agreement with the defendant
which the plaintiff would not have done, had he known that the
vehicle was a rebuild.
defendant's misrepresentation precluded consensus between the parties
regarding the subject matter of the sale, and as a result the
plaintiff cancelled the sale on 24 July 2008 and tendered return of
the 2002 Audi A4 model vehicle against payment of all monies paid by
the plaintiff pursuant to the written instalment sale agreement
concluded between the parties.
The defendant pleaded that the plaintiff initially negotiated and
concluded a sales transaction with a certain Dr. Naanda in a private
transaction relating to the purchase of the said 2002 Audi A4, which
preceded the written instalment sale agreement. The defendant further
denied that it was mistaken as to what it sold to the plaintiff. I
will set out (incorporating the amended plea) some of the allegations
in the defendant's plea:
In the amended plea, the defendant raised a point in
that the instalment sale agreement was preceded by private
negotiations between the plaintiff and a certain Dr Naanda, and that
the said Dr Naanda has a substantial interest in the proceedings and
ought to have been joined and the failure by the plaintiff to join Dr
Naanda is fatal. The defendant, at the hearing of this matter
abandoned this preliminary objection.
The transaction relating to the sale of the vehicle including its
terms as to its model, make and condition was negotiated and agreed
upon between the plaintiff and the said Dr Naanda without any
involvement whatsoever by the defendant. Defendant avers that it
merely acted as a financier of the transaction.
That upon receipt of the registration documentation from the
plaintiff himself and/or the previous owner of the vehicle with whom
the plaintiff initially secured the vehicle prior to applying for
finance from the defendant, the defendant alerted the plaintiff to
the fact that the documentation received via fax reflected that the
vehicle was a rebuilt.
The defendant did not negotiate and/or agree with the plaintiff
regarding the type and/or model of the vehicle to be sold as such
terms were concluded between the plaintiff and Dr. A.N. Naanda, the
previous owner of the vehicle.
The defendant did not have any obligation to disclose the status of
The plaintiff had possession of the registration documents of the
vehicle prior to and pursuant to the conclusion of the instalments
sales agreement as such the plaintiff knew from the outset what the
status of the vehicle is. .
Having briefly surveyed the pleadings I will now turn to the evidence
that was placed before me. But before I summarise the evidence I will
briefly set out the issue that I am called upon to decide.
In my view the issue for determination before me is whether the
instalment sales agreement concluded between the plaintiff and the
defendant is voidable on the basis that consent between the parties
is vitiated either by mistake or by misrepresentation.
The plaintiff testified in his own case and also called a certain Mr.
Haimbili to testify on his behalf. The defendant also called two
witnesses, a certain Ms. Madjiedt and a certain Mr. Conradie. I will,
below, set out the salient aspects of each witnesses' testimony.
Mr. Haimbili testified that:
He knew the plaintiff from childhood and on a day that he cannot
remember, but in July 2008, he had a discussion with the plaintiff
regarding the sale of the plaintiff's vehicle. They spoke, until they
arrived at a purchase price of N$120 000-00 (One Hundred and Twenty
Thousand Namibia Dollars).
Once the purchase price was agreed upon, he approached the
defendant's Rundu Branch and applied for a loan for the financing of
the vehicle that he wanted to buy.
When he applied for the loan he was asked to provide the defendant's
Rundu Branch with all the details of the vehicle that he wanted to
buy (i.e. the make, model, price and registration papers of the
He was informed that it will take approximately three days for him to
be informed of the status of his application. He was however informed
a week later that his application for financing was approved, but he
cannot buy the vehicle that he wanted to buy, because that vehicle
was a rebuild. He was asked to give another quotation for another
After he was informed by the defendant that he cannot purchase the
vehicle in question (i.e. the 2002 Audi A4) he went outside the bank
and called the plaintiff and informed the plaintiff that the bank
(defendant) said he cannot buy the vehicle anymore because the
vehicle is a rebuild.
When he told the plaintiff that the bank said it could not finance
the vehicle because it was a rebuild, the plaintiff sounded very
surprised. Plaintiff then asked him to go back to the bank and asked
them whether they could put the reason for not wanting to finance the
vehicle in writing. He went back and the person he was dealing with
wrote him a letter which states as follows:
whom it may concern
E. Haimbili has recently applied for finance to purchase an Audi A4
2002 from Mr. S.M. Lebbeus. Unfortunately we are not able to assist
him as the car has been built up."
letter was handed up and marked as Exhibit "A".
Lebbeus Shituleipo Mbekele
Mr. Mbekele, (the plaintiff) testified as follows:
During January or February 2006, he saw the vehicle (i.e. the 2002
Audi A4) being driven by a certain Ms. Naanda and on it was displaced
a paper stated "For Sale".
That Audi was always his dream car, and he had just finished paying
off his Jetta with First National Bank, so he wanted to buy another
car. He made contact with Dr. Nanda, they talked. He had a physical
inspection of the vehicle and it struck him that the vehicle was
"very, very well looked after... The engine was excellent and
the mileage was on 55 000 km". He also asked whether the car was
involved in accident and Dr. Nanda said "no the car was never
involved in a motor vehicle accident". He then informed the said
Dr. Naanda that he was interested in the vehicle and that he will
make contact with his bank and revert to her. They also agreed that
the purchase price was N$150 000-00 (One Hundred and Fifty Thousand
That since he did not have the N$150 000-00 (One Hundred and Fifty
Thousand Namibia Dollars) he sought financial assistance from the
defendant. He went to the defendant and there made contact with Ms.
Madjiedt, who informed him that he must submit his payslip, copy of
identification document in order for the defendant to determine
whether he could afford the instalments. He said after he handed in
all those documents, Ms. Madjiedt called him and told him that he
qualified to purchase the vehicle.
He was never asked to submit any documentation relating to the
registration or ownership of the car, he also testified that he never
saw the registration documents of the vehicle.
After he was informed that he qualified to purchase the vehicle he
completed an application form for financing. He was later informed
that his application was successful. He testified that he was called
to the office of Ms. Madjiedt, papers were put in front of him, he
was told that this is the instalment sale agreement "sign here,
sign here, sign there". He was required to pay a deposit and he
paid a deposit of N$30 000-00 (Thirty Thousand Namibian Dollars).
After he signed the agreement on 03 March 2006, he was given a paper
to take to Autohaus, he took the paper to Autohaus to a certain Ms.
Betty Labuschagne. After he handed the document to Ms. Labuschagne,
he was given the keys to the vehicle.
That Autohaus (Audi) attended to the whole process of registering the
vehicle, he did nothing with regard to the registration of the
vehicle. He said that when he collected the vehicle he was handed the
service book together with the registration papers which were folded.
He checked and he saw his name and he was very happy and he drove
straight to his mother's house because in his tradition "when
you buy a car you must take it to the living parent".
was always looking for a well looked after second hand vehicle, so if
he knew that the car that he was buying was a rebuild he would never
have bought it.
July 2008, Mr. Haimbili approached him and informed him that he is
interested in buying the vehicle. They negotiated with Mr. Haimbili
until they reached an agreement that he would sell the car to Mr.
Haimbili for N$120 000-00. Mr. Haimbili then undertook to approach a
bank and apply for vehicle financing. Mr. Haimbili later phoned him
and advised him that the bank said he qualified to purchase a vehicle
for an amount of N$120 000-00. He thereafter gave all the ownership
papers to Mr. Haimbili for him to take to the bank.
Mr. Haimbili called him from Rundu, and informed him that he was
experiencing delays with his application so he (Mr. Haimbili) asked
plaintiff whether plaintiff could go and follow up. Plaintiff then
went to Ms. Madjiedt and informed her that he has a sales deal with
someone in Rundu but there are delays. In his presence Ms. Madjiedt
called the person in Rundu and thereafter she said to plaintiff that
there is one document that is still outstanding, namely the vehicle
inspection report, so they sent the plaintiff to Prosperita for
somebody there to inspect the vehicle. The inspection was done and
after he paid the amount of N$170-00 (One Hundred and Seventy Namibia
Dollars) he was given the inspection report which he took to Ms.
The next thing that he got was a call from Mr. Haimbili asking him
why he (plaintiff) wants to sell him (Mr. Haimbili) a 'scrap'. Mr.
Haimbili said the bank cannot buy that vehicle (i.e. the 2002 Audi
A4) because it was a build up. He then asked Mr. Haimbili to get the
written confirmation from the bank and that is how Exhibit "A"
was prepared and exhibit "A" was then faxed to him. After
he received that information he was shocked and he then started his
He went through the service book of the vehicle. The service book
revealed that the vehicle was registered for the first time in 2002
and it was deregistered in 2003, for the whole of 2004 the vehicle
was never serviced and it was again serviced in 2005. Plaintiff only
came to know for the first time that the car was a rebuild when he
received the call from Mr. Haimbili.
That after his discovery he went to Murorua & Associates and
instructed that law firm to inform defendant that he is cancelling
the instalment sale agreement, and claiming restitution of the
purchase price. The letter of demand was copied to Autohaus who was
the delivery agent.
Both Autohaus and the defendant replied to the letter of demand.
Autohaus' reply was to the following effect:
vehicle mentioned in the letter belonged to a customer of Audi Centre
Windhoek, Dr. A.N. Naanda. The only part that Audi centre played in
the transaction was to provide our client, Dr. Naanda, an
administrative service solely pertaining to the licensing and Police
clearance of the mentioned vehicle. According to the invoice supplied
to Autohaus (Pty) Ltd from Standard Bank for transaction between
Standard Bank and Mr. L.S. Mbekele the interpretation is that it was
a private transaction. Please find the proof of the invoicing between
Standard Bank, Dr. Naanda and you client, Mr. Mbekele for your
The tax invoice reflects the following:
of Supplier: A
N Naanda, P O Box 24090, Windhoek
name of Buyer: Standard
Bank Namibia Limited, Vehicle and Asset Finance, P.O.
purchase price is N$150 000-00."
The defendant's reply to the letter of demand is as follows:
We would hereby like to emphasize that the sale was initiated and
agreed to between your client and Mr. Naanda without any involvement
by the bank. The bank was merely the financier of a transaction whose
subject matter was selected and negotiated between your client and
Furthermore it is not the bank's duty as the financier of the
transaction, to regulate the terms between the parties of such
private agreement of sale nor was it the bank's duty to inspect a
vehicle in such transaction (on behalf of the parties to the
transaction) to determine the condition thereof: The bank cannot be
held responsible for the condition of the vehicle. It was ultimately
your client's duty, as purchaser in the private transaction to
inspect the vehicle as presented by Ms. Naanda".
The plaintiff was also referred to clause 5 of the instalment sale
agreement. That clause (i.e. clause 5) reads as follows; "Risk:
between purchaser and seller, risk in the goods shall pass to
purchaser on the earlier of signature hereof by purchaser or the date
when supplier to bear the risk." The
letter of Autohaus was handed up as Exhibit "F", the Tax
Invoice as Exhibit "F1" and the letter of the defendant as
Susanna Elizabeth Madjiedt
Ms. Madjiedt amongst others testified that:
She is a consultant of the defendant, and has worked for the
defendant for a total of 19 years, and her duties and
responsibilities are to assist the "walk in" clients who
wish to purchase vehicles or other assets.
If a client came to her and indicate that he wants to purchase a
vehicle, she would normally ask for the following documents, salary
slip, identification document, driver's licence, six months bank
statement and his residential address. But if the transaction is a
private transaction she would ask for the following documents; the
registration documents of the vehicle, the roadworthiness of the
vehicle, police clearance and a copy of the seller's identity
The plaintiff's application was dealt with by a colleague of hers in
Keetmanshoop in January 2006, but in February 2006 the plaintiff was
transferred to Windhoek and that is how she got into the picture. She
further testified that the plaintiff's personal documents, the
application and the approval were sent through to her from
After she received the documents from Keetmanshoop she called the
plaintiff and informed him that she received his application for the
purchase of a vehicle, from Keetmanshop and that she will henceforth
communicate with him.
After she spoke to the client, she asked the plaintiff to get the
vehicle's registration papers, roadworthiness and police documents
from the seller. She said she received these documents but she does
not recall how she received the documents.
After she received the registration certificate of Ms. Naanda, she
did her HPI check (An HPI check is a check that is done to determine
whether the vehicle was stolen or not.).
After completing her HPI check (and was satisfied that the vehicle
was not a stolen vehicle, nor was it finance by another financial
institution), she called the plaintiff and drew his attention to the
fact that the vehicle he wanted to buy is a rebuild. The plaintiff's
reply to that was that the vehicle is a nice car low kilometres and
it looks like a brand new vehicle. Thereafter she got the
documentation ready, drew up the contract, filled in all the papers
and called him to come and sign.
the contract was signed the defendant was fully aware that the
vehicle was a build up.
all that she does is to take down the application and the approval is
done by the credit manager.
When the plaintiff came to sign the contract Ms. Madjiedt placed the
contract in front of him and she then told him that the two of them
will work through this document (i.e. the instalment sale agreement).
She also told him that the document is a contract between him and
Standard Bank, and she then explained all the clauses to him. After
she took him through the contract she asked him whether he was
satisfied and his reply was a yes. She than asked him to sign the
contract. She furthermore testified that the plaintiff's attention
was not drawn to the terms nor were the terms which formed an
attachment to the contract explained to him.
It is worth stating that after the plaintiff amended his particulars
of claim the defendant asked for the plaintiff and for Ms. Madjiedt
to be recalled to testify. I allowed both Ms. Madjiedt and Mr.
Mbekele to be recalled. Ms. Madjiedt on recall testified as follows:
On 02 March 2006, she received the registration papers of the vehicle
(in respect of Ms. Naanda) by fax from Autohaus. After receiving the
documents (i.e. the registration papers) she went through the
documents, and that is where she picked it up that the vehicle was a
Out of "humanity" she called the plaintiff and asked him
whether he knew that the vehicle he was going to buy was a rebuild
vehicle. She explained to the plaintiff that the car must have been
in an accident and that the insurance must have paid for it.
The defendant also called a second witness Mr. Conradie but I am of
the view that the evidence of Mr. Conradie is not relevant to the
resolution of the dispute between the plaintiff and the defendant.
THE LEGAL POSITION
Generally our law recognises that a contract comes into existence if
the parties are agreed on creating, between themselves, an obligation
or several obligations as well as on all its particulars such as its
content and subsidiary features. The consequences of a contract are
obligations, the contents of which are the claims and duties to
perform. Our law furthermore recognises that in keeping with good
faith and in the public interest, serious expressions of intent must
be adhered to and be given their intended legal consequences.
Van der Merwe et
their book: Contract:
General Principles: 2nd
Juta at page 90 argue that some factors, however, warrant a departure
from the principle that "serious expressions must be given their
intended legal consequences" to the extent that a contractant is
allowed to undo the consequences of his agreement (rescind or
withdraw from the contract), because the agreement was defective in
the sense that it was not conceived in the free and unfettered manner
regarded by the law as necessary for the expression of a
contractant's individual autonomy:" Amongst the factors upon
which a contractant may avoid the consequences of an agreement is
In the South African case of Novick
and Another v Comair Holdings Ltd and Others1979
SA 116 (W) Colman J at page 149 E-I outlined the of a
misrepresentation to be:
That the representation relied upon was made.
That it was a representation as to a fact. A promise, prediction,
opinion or estimate or exercise of discretion is not a representation
as to the truth or accuracy of its content; it can, however, often be
construed as a representation that the person making it is of a
particular state of mind.
That the representation was false. In relation to an ordinary
representation of fact, what must be shown is that the fact was not
as represented. When a prediction, opinion or estimate is relied
upon, what must be shown is not merely that it was, or turned out to
be, erroneous, but that it did not represent the bona
at the time when it was expressed, of the person who expressed it.
That it was material, in the sense that it was such as would have
influenced a reasonable man to enter into the contract in issue.
That it was intended to induce the person to whom it was made to
enter into the transaction sought to be avoided."
Below I summarise Van der Merwe et
at pages 95 -103 formulation of the elements of the "delict
misrepresentation in contrahendi
act (conduct). The
act must be a representation made by a contractant or by someone for
whose acts he is held liable. A representation is any conduct which
creates a particular impression of the other contractant. The conduct
may be a commission (...that is by a positive act, doing something)
or an omission... (that is by refraining from doing something).
a delict misrepresentation involves wrongful conduct
....misrepresentation by omission will only be wrongful if the
misrepresentee breached some duty to act positively...A
representation is not regarded as wrongful merely because it is false
and actually misleads the contracting party;..the representation must
relate to material facts.
in the context of misrepresentation is the legal blameworthiness
which accompanies the wrongful conduct of the misrepresentor...Fault
take two forms intent (dolus)
is often said that a misrepresentation is actionable only if inter
has induced it has induced the misrepresentee to enter into the
contract as it is".
APPLICATION OF THE LAW TO THE FACTS.
The plaintiff's case is that he saw a 2002 Audi A4 vehicle (the
vehicle) which was for sale, he was interested in the vehicle and
contacted Dr Naanda, the owner of that vehicle. The owner informed
him of the selling price of the vehicle, which was N$150 000-000 (One
Hundred and Fifty Thousand Namibia Dollars).
Plaintiff did not have that amount of money; he accordingly
approached the defendant and requested the defendant to provide him
with financial assistance to enable him to purchase the vehicle. The
defendant went further than providing financing to the plaintiff. The
defendant purchased the vehicle from Dr. Naanda and then sold the
vehicle to the plaintiff. When the defendant purchased the vehicle
from Dr Naanda it became the owner of the vehicle. The instalment
sale agreement in clause 4.1 in fact provides that ownership in the
vehicle will remain with the defendant.
The plaintiff placed before me evidence that:
He concluded an instalment sale agreement with the defendant in terms
of which the defendant sold a 2002 Audi A4 vehicle to plaintiff. I am
thus satisfied that the plaintiff made the representation as to a
fact that the merx that it is selling to the defendant is a 2002 Audi
What he received is not a 2002 Audi A4 vehicle but a 2002 Audi A4
rebuild vehicle and that he had never seen the registration papers of
the vehicle prior to him signing the instalment sale agreement. I am
equally satisfied that that the representation that the vehicle is a
2002 Audi A4 was false. When the defendant purchased the vehicle from
Dr Naanda it became the owner of the vehicle. The defendant thus had
a positive duty to act and inform the plaintiff that the vehicle that
the plaintiff is purchasing is a rebuild vehicle. I thus reached the
conclusion that the failure by the defendant to inform the plaintiff
that the vehicle which he was purchasing is a rebuild vehicle was
If he had known that the vehicle was a rebuild vehicle he would not
have entered into the instalment sale agreement. I am thus also
satisfied that the representation relates to material facts and that
the representation induced the plaintiff to enter into the agreement.
The defendant's defences are multiple, first it alleges that the
initial sale transaction was concluded between Dr. Naanda and the
plaintiff without any involvement from defendant and that it merely
acted as a financier. In the light of my finding that when the
plaintiff approached the defendant with a request for financial
assistance the defendant instead purchased the vehicle from Dr Naanda
and sold the vehicle to plaintiff there is no merit in the
defendant's assertion that its role was merely that of a financier.
So this defence cannot assist the defendant. I am equally of the view
that the assertions by the defendant that it was not involved in the
initial negotiations are not helpful to its case.
The second defence raised by the defendant is that: "the
plaintiff having had possession of the said documentation [ i.e. the
registration papers of the vehicle ] prior to and pursuant to the
transaction and having had access to its contents at all relevant
times about the status of the vehicle without taking any steps
whatsoever to address his alleged grievance in this regard". I
interpret this approach by the defendant to be an allegation that the
plaintiff knew the status of the vehicle and elected to keep to the
Firstly the defendant did not lead any evidence to show that prior to
the conclusion of the instalment sale agreement the plaintiff had
possession of the registration papers of the vehicle. In her
initially testimony Ms Madjiet, said she could not recall where she
got the registration papers from. When she was recalled she testified
that she got the registration papers from Autohaus (Pty) Ltd. I am
thus of the view that the plaintiff's version that he did not see the
registration papers of the vehicle prior to him signing the
instalment sale agreement is probably true.
Secondly Trollip JA, after quoting from the case of South
Cape Corporations (Pty) Ltd V Engineering Management Services (Pty)
(3) SA 534 (A) at 548 A-C where Corbett J.A. said:
often been used to denote, inter alia, two distinct concepts: (i) the
duty which is cast on the particular litigant, in order to be
successful, of finally satisfying the Court that he is entitled to
succeed on his claim or defence, as the case may be; and (ii) the
duty cast upon a litigant to adduce evidence in order to combat a
prima facie case made by his opponent. Only the first of these
concepts represents onus
its true and original sense. In Brand
v Minister of Justice and Another, 1959
(4) SA 712 (AD) at p. 715, OGILVIE THOMPSON, J.A., called it "the
overall onus ". In this sense the onus can never shift from the
party upon whom it originally rested. The second concept may be
termed, in order to avoid confusion, the burden of adducing evidence
in rebuttal ("weerleggingslas"). This may shift or be
transferred in the course of the case, depending upon the measure of
proof furnished by the one party or the other."
as follows in the case Feinstein
v Niggli and Another 1981
(2) SA 684
at page 698 E-H
seems that the onus resting on the representee mentioned by the
authors of Actionable
in the above statements relates merely to the burden of adducing
evidence in rebuttal, and not to the overall onus of proof. Otherwise
it does not correctly reflect our law. For, according to our law, in
my view, the overall onus of proving all the requisites of an
election to affirm a contract otherwise vitiated by misrepresentation
rests on the representor. He must therefore prove that the
representee had the requisite knowledge. That is certainly so in
regard to waiver. The party alleging a waiver of a contractual right
retains throughout the proceedings the overall onus of proving that
the other party had full knowledge of the right when he allegedly
abandoned it (Laws
v Rutherford 1924
AD 261 at 263; and cf Netlon
Ltd and Another v Pacnet (Pty) Ltd 1977
(3) SA 840 (A) at 872G - 873H and authorities there cited).
election generally involves a waiver: one right is waived by choosing
to exercise another right which is inconsistent with the former.
Indeed, election and waiver have been equated as being species of the
same general legal concept. See Moyce
v Estate Taylor 1948
(3) SA 822 (A) ;Hlatshwayo
v Mare and Deas 1912
AD 242 at 247; Montesse
Township & Investment Corporation (Pty) Ltd and Another v Gouws
NO and Another 1965
(4) SA 373 (A) at 381A -B; Van
Schalkwyk v Griesel 1948
(1) SA 460 (A) at 473. Hence, no reason exists why the same rule
about the overall onus of proof applicable in waiver should not also
apply to election mutatis
only to this possible qualification. In waiver the owner's knowledge
of the existence of the right must usually be proved before he can be
said to have waived it; but in election the question arises, does
proof merely of the representee's knowledge of the material facts
constituting the misrepresentation suffice, or must knowledge of his
rights thereby created also be proved, e.g. the right to rescind the
contract or affirm it and claim damages? It would seem that it is
necessary to prove knowledge of both the facts and the rights, since
election means choosing between different rights, and how can such an
election be duly made unless the representee knows what those rights
I have thus arrived at the conclusion that the defendant has failed
to prove that the plaintiff had complete knowledge of all material
discrepancies between the representation and the real facts. The
second defence must, accordingly also fail.
The third defence raised by the defendant is that "upon receipt
of the registration documentation from the Plaintiff himself and/or
previous owner of the vehicle with whom the plaintiff initially
secured the vehicle prior to applying for financing from the
Defendant, the Defendant alerted the Plaintiff to the fact the
documentation, received via
reflected that the vehicle was a rebuild."
The plaintiff flatly denied that he was informed by Ms Madjiet that
the vehicle was a rebuild. The evidence of Mr. Mbekele (Plaintiff)
and Ms Madjiedt (for the defendant) are mutually destructive on this
aspect. In the South African case of National
Employers General Insurance v Jagers: 1984
(4) SA 437, Eksteen
said, that where there are two mutually destructive versions the
Plaintiff can only succeed:
he satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable, and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected, in deciding whether that evidence
is true or not the court will weigh up and test the Respondent's
allegations against the general probabilities. The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the Respondent's then the court will accept his
version as being probably true. If however the probabilities are
evenly balanced in the sense that they do not favour the Respondent's
case anymore than they do defendant's, the Respondent can only
succeed if the court nevertheless believes him and is satisfied that
his evidence is true and that the defendant's version is false ."
see African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234
I am of the view that the probabilities favour the version of the
plaintiff more than that of the defendant. I say so for the following
I formed the view that Messrs, Haimbili, Mbekele and Conradie's
testimony in so far as it is relevant to this issues before me was
credible. Ms Madjiet did not strike me as generally dishonest, but I
consider that she was not truthful in some respects, (particularly on
the point of whether she disclosed to the plaintiff that the vehicle
in questions was a rebuild vehicle) I found her to be evasive and
tailored her testimony to suit the defendant's case.
The defendant's approach has been that it was not involved in the
initial negotiations for the purchase of the vehicle and that there
was no legal duty on it to disclose the fact that the vehicle is a
As it has emerged from evidence the allegation by the defendant that
the defendant received the registration documents from the plaintiff
and/or the previous owner is incorrect.
In the circumstances I have come to the conclusion that the defendant
misrepresented to the plaintiff that the vehicle that he bought was a
2002 Audi A4, thus entitling the plaintiff to rescind the contract.
The defendant in its plea denies that the plaintiff is entitled to
tender the return of the vehicle or that it is liable to refund any
instalment. The defendant basis its denial on the argument that the
"Plaintiff's tender is defective in so far as it discounts the
wear and tear as well as the value of the use and enjoyment of the
said vehicle by the Plaintiff since March 2006 to date hereof"
Van der Merwe et
at page 121 have the following to say with respect to the remedy of
restitution: "It is generally said that an act which constitutes
a ground for rescission renders a contract voidable at the behest of
the aggrieved contractant. ...The aggrieved party also becomes
entitled to restitution of performance already rendered, with the
concomitant duty to return what he may have received. The restitution
may entail not only what has actually been received but also such a
sum of money as may be necessary to restore the other contractant
his previous position. "
In the case of Feinstein
v Niggli and Another 1981
(2) SA 684 at page 700 Trollip JA said:
object of the rule [restitutio
in integrum] is
that the parties ought to be restored to the respective positions
they were in at the time they contracted. It is founded on equitable
considerations. Hence, generally a court will not set aside a
contract and grant consequential relief for fraudulent
misrepresentation unless the representee is able and willing to
restore completely everything that he has received under the
contract. The reason is that otherwise, although the representor has
been fraudulent, the representee would nevertheless be unjustly
enriched by recovering what he had parted with and keeping or not
restoring what he had in turn received, and the representor would
correspondingly be unjustly impoverished to the latter extent (see
at para 294 and note 5 thereto); Marks
Ltd v Laughton 1920
AD 12 at 21; Harper
v Webster 1956
(2) SA 495 (FC) at 502B - D; Van
Heerden en Andere v Sentrale Kunsmis Korporasie (Edms) Bpk 1973
(1) SA 17 (A) at 31G - 32A). But since the rule is founded on equity
it has been departed from in a number of varying circumstances where
considerations of equity and justice have necessitated such departure
the deterioration in condition or the depreciation in value of the
subject-matter of the contract while in the representee's possession
will usually not preclude restitutio
that occurred in the ordinary course of events, or through its being
used in the normal way as contemplated by the parties, or through
some inherent defect or weakness in the subject-matter itself, and
was not due to any fault of the representee (see Actionable
295 at 310); the Marks'
supra at 21; Wessels Law
of Contract in SA 2nd
ed para 4742; African
Organic Fertilizers and Associated Industries Ltd v Sieling 1949
(2) SA 131 (W) at 136; the Van
supra at 32A - 33A). Even where the deterioration or depreciation is
due to the representee's fault, restitutio
not necessarily precluded, for the Court may allow him to adjust the
deficiency by a monetary compensation."
] Also see Davidson
v Bonafede 1981
(2) SA 501; where Marais AJ said:
remedy is available to one who has been induced to act to his
financial detriment by the fraud of another. Voet 4.1.26. The scope
and purpose of the remedy are described by Voet in this way (Gane's
translation vol 1 at 577):
is an action for the making whole again of a matter or cause... It is
otherwise described (insofar as it is granted by the magistracy) as a
resetting and restoration of a transaction to its original state; or
a making whole again of a cause which has been lost. It is an
extraordinary remedy by which the praetor in virtue of his office and
jurisdiction, taking the line of natural fairness, puts back injured
or cheated persons for just cause into their original state, just as
though no damaging transaction had taken place, or at least orders
them to be indemnified".
effect of restitution is that all things are put back into their
original condition, and that indeed in a single judicial action"
(4.1.21 at 596).
the person damaged gets restitution in such ways that along with the
thing restored he receives also its fruits. An exception is when apt
conditions are made by which fruits received can be set off against
interest due on the other side. Ulpian propounds an arrangement of
that kind in the law cited below."
on the other side he too against whom restitution is granted must
have his original rights made whole again in so far as that can be
done, and regard must be paid to his being indemnified, even though
the restitution is made on the ground of fear or fraud. Just as he
who obtains restitution ought not to be landed in loss, so neither
should he find himself a gainer to the sacrifice of another. Whatever
therefore has accrued to him from the purchase or sale or other
contract he ought to restore" (4.1.22 at 598).
addition expenses which the opponent can prove were incurred on the
thing must be refunded by the person obtaining restitution; unless
they were luxurious, and such that only removal (of a luxurious
addition to a building) is allowed; or unless they were beneficial
indeed, but too heavy for the person obtaining restitution. It is not
fair that the person getting restitution should either have to look
for other creditors, or be compelled to sell what he prefers to keep
to credit, or be driven by poverty to abandon the thing itself to his
opponent. In this matter much must be left to the discretion of the
judge, so that he may move as it were in the middle of the road, and
neither grant too much to the person getting restitution, nor allow
too much to an irksome opponent". (4.1.22 at 599)".
Fortune Beleggings Bpk v Kalahari Salt Works (Pty) Ltd and Others
(3) SA 739 (NC) where Van Den Heever J said:
in integrum an
attempt is made to put the parties to a contract retrospectively
declared null and void
ab initio, into
the position in which they would have been had the contract not been
v Davies 1934
CPD 250, the Court ordered the seller of a house to repay to the
purchaser, a minor, the purchase price with interest from the date of
payment (my emphasis) but ordered the buyer to give the seller credit
for a stated monthly sum representing the value of the use of the
house, with interest calculated from the first day of each month in
which each monthly sum would have been payable had it accrued as
I am not aware of any Namibian case which has rejected the above set
out principles, which I accept as part of our law. In the result I am
of the view that the defendant's denial that the plaintiff is
entitled to tender the return of the vehicle is baseless.
It seems to me that the relief claimed by the plaintiff in the main
claim is substantially in accordance with what the law entitles the
plaintiff to recover. The orders which I will grant are substantially
those claimed by plaintiff in his main claim, but I have made
adjustments ( the adjustment that I make here is putting a percentage
to the use and enjoyment of the vehicle by the plaintiff and
deducting that percentage from the monthly instalments paid by the
plaintiff) where appropriate to give effect to the principles which I
have set out in this judgment. In the result I make the following
The cancellation of the instalment sale agreement concluded between
the parties on 03 March 2006 is confirmed.
The plaintiff must return and deliver the 2002 Audi A4 rebuild
vehicle to the defendant and the defendant must against delivery to
it of the 2002 Audi A4 rebuild vehicle pay to plaintiff the
The initial repayment in the amount of N$ 30 000-00 (Thirty Thousand
Namibia Dollars) plus interest on the amount of N$ 30 00000
(Thirty Thousand Namibia Dollars) calculated at the rate of 20% per
annum reckoned from the date of judgement to the date of payment;
The fifty three monthly instalments paid by the plaintiff to the
defendant from 31 March 2006 to 30 September 2010 Less
percent on each instalment paid by the plaintiff to the defendant.
The defendant must pay the costs of suit.
BEHALF OF THE PLAINTIFF:
BEHALF OF THE DEFENDANT: