Court name
Supreme Court
Case number
SA 13 of 2012
Title

Namib Contract Haulage (Pty) Ltd v Oshakati Garage CC (SA 13 of 2012) [2013] NASC 14 (15 November 2013);

Media neutral citation
[2013] NASC 14
Coram
Maritz JA










IN
THE SUPREME COURT OF NAMIBIA






CASE NO.: SA 13/2012







DATE: 15 NOVEMBER 2013







REPORTABLE






In
the matter between:





NAMIB
CONTRACT HAULAGE (PTY)
LTD.................................................Appellant





And





OSHAKATI
GARAGE
CC...........................................................................Respondent





Coram:         
           
MARITZ JA, MAINGA JA and MTAMBANENGWE AJA


Heard:          
            17
June 2013


Delivered:    
            15
November 2013









APPEAL JUDGMENT





MAINGA
JA (MARITZ JA and MTAMBANENGWE AJA concurring):





[1]          
The
appellant (the defendant in the Court
a
quo
)
appeals against the whole judgment and order of Miller AJ in the High
Court in which he upheld an action for payment of the sum of N$628
500,65 for services rendered, goods sold and delivered, storage fees
and interest claimed by the respondent (the plaintiff
a
quo
).[1]





[2]          
On
22 August 2007 the respondent instituted action by simple summons
(later amplified by an amended declaration) against the appellant
seeking relief on the grounds as set out in paragraph [1] for the
amount of N$685 673,69, subsequently reduced to N$628 500,65. During
2008 the plaintiff
a
quo
,
Trailer Spares and Repairs CC, was substituted with Oshakati Garage
CC. The substitution was not opposed. As it were, counsel for the
respondent informed us from the Bar – and this has not been
gainsaid - that the substitution took place by agreement between the
parties. Unfortunately, the pleadings and citation of the parties in
the headings thereof were not formally amended to reflect the
substitution and, as a result, the judgment and order were issued
under the seal of the Registrar of the High Court on a document
citing the parties without regard to the substitution. When the
matter came before us on appeal, Trailer Spares & Repairs CC was
therefore still cited as a party to the dispute. As a consequence,
the appellant raised a point
in
limine

– albeit for the first time in this Court - that no notice of
amendment had been filed to reflect the substitution and that no
power of attorney and resolution had been lodged
a
quo
to
authorise one Mr Jakobus Hermanus van Staden to act on behalf of
Oshakati Garage CC.





[3]          
In
its amended declaration, the respondent alleged that the following
had been the express, alternatively implied or, in the further
alternative, tacit terms of the agreement with appellant:






3.1      
The respondent would repair appellant’s motor vehicles at the
appellant’s special instance and request, if and when required,
and at the respondent’s normal rate for such repairs and
services;


 



3.2      
The respondent would order any goods and/or parts necessary for
repairing the vehicle, the costs of which the appellant would be
liable for;


 



3.3      
The respondent would charge storage costs in respect of motor
vehicles at the rate of N$45,00 per day per vehicle.


 



3.4      
The appellant would pay the respondent for all services rendered,
goods and/or parts ordered and storage fees charged on a monthly
basis and that a minimum amount of N$25 000,00 would be paid each
month in settlement thereof;


 



3.5      
Interest on overdue accounts would be charged at a rate of 2.5% per
month.


 



3.6      
The appellant would be liable towards the respondent for tow-in costs
at the rate of N$12,50 per kilometre if the required tow-in
necessitated the use of tow-in truck, alternatively at the rate of
N$4,50 for the costs of travelling to a broken down vehicle.





[4]          
In
the amended declaration there was a further claim of N$4887,50 for a
Mercedes L15 Truck which the respondent had leased to the appellant
in terms of an agreement, the appellant represented by one Fillemon
at the time when it was concluded.





[5]          
From
the appellant’s plea it is clear that it denies the alleged
agreement on the storage costs, the monthly minimum payment of N$25
000,00 and the interest of 2.5% per month. The appellant pleaded that
it had been agreed that it would pay respondent on presentation of
invoices for the work done by respondent to appellant’s vehicle
and admitted that respondent had rendered the services claimed and
demanded payment. It pleaded that it was entitled to refuse payment
in the amount of N$685 673,69 because the amount included storage
costs and interest for which it was not liable and, given payments
already made, that it did not know whether it still owed appellant
money in respect of the services rendered and, if it did, in what
amount.





[6]          
The
High Court found in favour of the respondent on the evidence of
Messrs van Staden (the principal and managing member of the
respondent) and Blaauw, a former employee of the appellant who acted
on its behalf at the time the service agreement was concluded with
the respondent. Although it appears from the judgment of the Court
that the learned Judge erroneously referred to Mr van Staden as Mr
Blaauw and
vice
versa
,
that fact does not otherwise detract from the factual correctness of
the findings made by that Court. The High Court found that Messrs van
Staden and Blaauw corroborated each other on the terms of the
agreement as alleged by the respondent in the amended declaration.
The Court
a
quo
further
found that the discrepancies between different sets of documents
pointed out by counsel for the appellant during the cross-examination
were satisfactorily explained by ‘Mr Blaauw’ (meaning Mr
van Staden). The Court further found that Mr van Staden was a
reliable and honest witness whose evidence was frank and credible. In
addition, it pointed out that there was nothing to gainsay Mr van
Staden’s evidence. As it were, his evidence was corroborated by
that of other witnesses, the Court
a
quo
held.





[7]          
In
this Court the appellant raised a point
in
limine

on the issue of authority, as I have already stated, and two issues
on the merits, namely, whether a contract in the form of
locatio
conductio operis
and
storage fees existed between the parties and, if so, what the terms
were and whether the quantum was correctly proven. Before advancing
contentions on these issues, counsel for the appellant sought
condonation for the late filing of the notice of appeal and
reinstatement of the appeal.






[8]          
Counsel
for the appellant contended
in
limine
that
respondent’s failure to comply with rules 7(1) and (4) of the
High Court Rules, (i.e. the filing of the power of attorney with the
Registrar before summons was issued) could not be condoned by this
Court. Counsel further contended that when Trailer Spares &
Repairs CC was substituted with Oshakati Garage CC, no notice of
amendment was filed pursuant to the substitution and no power of
attorney and resolution were filed to authorise Mr van Staden to act
on behalf of Oshakati Garage CC. He contended that the filing of a
power of attorney and resolution were mandatory and, failing
compliance, that the proceedings were void.






[9]          
On
the principal issue in the appeal, counsel contended that, the
plaintiff had issued a simple summons for a liquidated debt, but that
the Court
a
quo

could not find that the claim was liquidated as there were too many
discrepancies in the case of the respondent. He further contended
that the Court should have questioned the credibility of Mr van
Staden when Mr Werner Blaauw, who had represented and worked for the
appellant at the time the agreement was concluded, testified and
denied that Mr van Staden had contacted him about the outstanding
balance. The integrity and veracity of the evidence is seriously
eroded when regard is had to the fact that Messrs Blaauw and Van
Staden, who are friends, on their own admissions on two occasions
consulted with counsel for the respondent simultaneously, so argued
counsel.






[10]       
Counsel
questioned Mr van Staden’s evidence that the parties had
entered into an agreement to sell the vehicles and argued that, if
that had been the case, there was no reason advanced why the
respondent did not execute that agreement. He submitted that no such
agreement existed, also not on storage fees.






[11]       
Counsel
finally contended that the respondent’s claim, which was based
on a liquidated debt, was not readily ascertainable, as it was not
clear what amount was claimed for repair services, parts, storage
fees and/or interest respectively. Counsel submitted that the
respondent did not prove the exact amount claimed and that the
respondent did not prove the existence of an agreement in respect of
storage fees. Therefore, the Court
a
quo

misdirected itself and that the Court should have granted the order
of absolution from the instance, counsel submitted.






[12]       
The
respondent opposes the application for condonation on the ground that
the appellant failed to comply with rule 5(1) of the rules of this
Court when the notice of appeal was filed out of time and because the
appeal was devoid of any merit in the light of the uncontested
evidence adduced on behalf of the respondent.






[13]       
Counsel
for the respondent spent a greater part of his argument on the
appellant’s failure to comply with rule 5(1) of the rules of
this Court and made reference to various decisions of this Court on
the issue. In as far as the point
in
limine
is
concerned, the main thrust of his argument was that the issue could
not be raised for the first time in this Court. Counsel, however,
conceded that, on the face thereof, the order of the Court
a
quo

was in favour of Trailer Spares & Repairs CC but argued that the
evidence led in the High Court revealed that the plaintiff was,
Oshakati Garage CC in substance and that the High Court’s order
was issued on that premise. He nevertheless sought an amendment to
reflect ‘Oshakati Garage CC’ wherever the name ‘Trailer
Spares & Repairs CC’ appears. Counsel for the appellant
opposed the amendment.






[14]       
On
the principal issue of this case, counsel for the respondent argued
that at no stage did the appellant dispute that a contract had been
concluded between the parties and that, what was in dispute, were the
terms of the contract and the quantum of the claim. From the evidence
led it emerged that the parties concluded the contract alleged in the
declaration as amended immediately before the commencement of the
trial as per paragraph 3 above. He further argued that the respondent
had complied with the agreement whereas the appellant breached the
terms of the agreement by making only partial payments when the
appellant had received invoices and statements. It was further argued
that the appellant did not call witnesses to refute the evidence of
the respondent’s witnesses; neither did the cross-examination
of the respondent’s witnesses place in dispute the material
aspects of their evidence.





[15]       
On
the complaint that Messrs Van Staden and Blaauw have been consulted
simultaneously, counsel conceded that it had been established on
evidence but argued that there was no factual basis for an allegation
of any deliberate or  ‘innocent manipulation’ of the
evidence as a result.






[16]       
We
directed that the condonation application and the application to
amend should be argued together with the merits of the appeal. The
applications were opposed but I do not think that there was prejudice
to any of the parties as a result of the other’s omissions.
Judgment in the Court
a
quo

was granted on 1 March 2012. The notice of appeal was served within
21 days on the respondent (19 March 2012) and the Registrar of this
Court (20 March 2012). It was only on the Registrar of the High Court
that it was served out of time (17 April 2012). The application for
reinstatement of the appeal was filed on 11 June 2013, some 6 days
before the hearing of the matter on 17 June 2013. Although the
application was for initially reinstatement only, the words
‘condoning and’ were inserted before the word
‘reinstating’ in the second paragraph of the application
on the date of hearing. The appellant’s instructing counsel was
at a loss to explain why the notice of appeal had been filed out of
time with the Registrar of the High Court. All the deponent to the
affidavit supporting the condonation and reinstatement application
could say was that ‘I have no idea how it occurred’. To
me, it seems like an oversight on the part of the messenger who had
been tasked with delivery of the notice of appeal, which was not
immediately realised and corrected through proper supervision.






[17]       
The
failure to observe the rules of this Court, particularly rules 5(1)
and 8(1) has become a menace in this Court. Almost every appeal
matter that comes before this Court is preceded by an application for
condonation. Some of these applications are most of the time heavily
contested, wasting valuable time before the principal issues are
canvassed. In appropriate cases, condonation had been refused. In our
opinion this is not one of them. In circumstances where the notice of
appeal was timeously lodged with the registrar of this court and
delivered to the respondent’s legal representatives, we cannot
find that the respondent was prejudiced by the late filing of the
notice of appeal with the Registrar of the High Court and the delayed
filing of the application for condonation and reinstatement when the
deficiency came to light. It seems to me that where there has been a
formal deficiency in the manner in which an appeal has been noted
rather than a failure to note it timeously, the Court should be more
inclined to grant condonation for the non-compliance if it has not
resulted in any prejudice to any party or a delay in the prosecution
of the appeal. In the view I take, the application must be granted.
The costs of applications of this nature are normally borne by the
appellant but, because I do not regard the respondent’s
opposition to the application to be reasonable, I consider it in the
interest of fairness to both parties not to make any order of costs.





[18]       
In
as far as the application to amend any reference to ‘Trailer
Spares & Repairs CC’ to ‘Oshakati Garage CC’ is
concerned, it should be borne in mind that, having been agreed to by
the parties, the substitution took place in the Court
a
quo
without
opposition and without the need for a formal application to effect
it. Without amending the pleadings to reflect the substitution, as
the plaintiff
a
quo

should have done, the claim and defence thereto were subsequently
prosecuted on the premise of the substitution. The failure to effect
the amendment – in particular to the headings of the pleadings
- resulted in the registrar incorrectly issuing the Court’s
order with reference to the parties as cited in the headings at the
outset of the proceedings and, for that matter, also in the noting of
the appeal with reference to the same parties. Whilst we cannot amend
the pleadings in the Court
a
quo

in the absence of an application to that effect having been brought
in that Court, we may amend the order of the High Court to make it
clear that judgment was granted in favour of Oshakati Garage CC –
as is apparent from the Court’s reasons, it clearly intended –
rather than in favour of the substituted party, Trailer Spares &
Repairs CC. Moreover, we may grant the amendment in so far as it
relates to the proceedings in this Court. Counsel for the appellant,
notwithstanding his opposition thereto, could not point out any
prejudice that might be attendant on the appellant for such an
amendment on appeal, and I propose to grant it. The costs occasioned
by amendments of this nature must normally be borne by the party
seeking it but in view of the appellant’s unreasonable
opposition to it, I do not intend to make any order of costs pursuant
to the application.





[19]       
In
my opinion both applications should succeed but, in each instance, I
must decline to propose an order of costs.






[20]       
I
now turn the point
in
limine

raised in respect of Mr Van Staden’s authority. Counsel for the
appellant contended that this Court cannot condone the non-compliance
with the Rules of the High Court, when the respondent (plaintiff) in
that Court failed to file an amendment substituting Trailer Spares &
Repairs CC for Oshakati Garage CC failed to file the power of
attorney and resolution authorising Mr van Staden to act on behalf of
Oshakati Garage CC. He further contended that, that non-compliance
with rule 7(1) and (4) rendered the proceedings in the High Court
void.






[21]       
Counsel,
on the question by the Court, could not refer this Court to any
authority he relied on to contend that the non-compliance rendered
the proceedings in the High Court void. When pressed further, his
response was that he could not take his contention any further. I
could not find any authority supporting counsel’s contention
that voidness would follow without more. On the contrary, in
Northern
Assurance Co Ltd v Somdaka

1960 (1) SA 588 (A) at 596C-D the South African Appellate Division
held that where an attorney had been verbally authorised to issue
summons on behalf of a plaintiff and executed his mandate without
filing a power of attorney with the registrar, such omission could be
condoned in appropriate circumstances. Similarly, in
Nampak
Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd

1981 (4) SA 919 (T) Ackermann J had occasion to deal with the
question whether the issue of a summons by an attorney on the
strength of a defective power of attorney amount to a nullity. In
that case the power of attorney to institute an action was defective
because the person who had executed it was not one of the plaintiff’s
office bearers who had been authorised by the plaintiff to do so.
When the defect was realised well after the action had been
instituted, the plaintiff passed a resolution ratifying the
institution of the action. The learned Judge held
at
924H
:





In
my view it cannot be said that the proceedings prior to ratification
in the instant case are a nullity in the sense contemplated in
Krugel
v Minister of Police (supra)
[2]
and Simross Vintners (Pty) Ltd v Vermeulen (supra)
.[3]
In the same way that it cannot be said that an agent's unauthorised
acts are a nullity because they are capable of retroactive
ratification I do not think that the steps taken in this action prior
to the ratifying resolution were a nullity.’





[22]       
Without
condoning the respondent’s failure to effect all the required
amendments to the pleadings, the initial declaration of 2008 by the
respondent and the subsequent amendments thereto which defined the
terms of the contract between the parties, cites Oshakati Garage CC
as the plaintiff in the body of the pleadings. In actual fact, on 2
February 2012 when the trial commenced, counsel for the respondent,
after placing on record further amendments to the declaration, he,
without an objection from the appellant, went on to say:





.
. . from the reading of the pleadings in this matter, the amended
declaration . . . it is apparent that the details and the citations
of the parties, that is plaintiff and the defendant, as well as, the
fact that the agreement was concluded, that is admitted.’





[23]       
In
the summary of evidence of Mr Willem Herman Geurtse, who the
respondent (plaintiff) called as an expert witness in terms of rule
36(9)(
b),
the document received by the appellant’s attorney of record on
8 September 2011, Oshakati Garage CC is expressly referred to in
paragraphs 3, 4 and 5. It is necessary to repeat  the said
paragraphs for they are relevant to the dispute on the point under
consideration:





3.       
On 26 August 2011 the witness have been asked to evaluate and
scrutinize invoices made out by Oshakati Garage to Namib Contract
Haulage for repairs done on their fleet vehicles and busses for the
year 2004.





4.        
The witness was given the following invoices to evaluate: Inv. No.
446, 437, 434, 432, 430, 420, 414 and 413, totalling N$229 375,61.
After comparing the current 2011 prices to those invoiced by Oshakati
Garage, the witness can safely say that all prices invoiced are
within the reasonable profit margins, and certainly not excessive.





5.        
Although invoices do not reflect hourly rates or the amount of hours
charged, it is possible for the witness to calculate the flat rate on
these invoices and therefore the witness could say that the amount of
labour charged, fairly accurately resembles the work carried out by
Oshakati Garage.’





[24]       
It
appears to be very clear that the respondent notwithstanding the
alleged failure to have sought an amendment and file a power of
attorney for the substitution, the pleadings and the evidence makes
it abundantly clear who the plaintiff is and I should accept that the
appellant having failed to object to the substitution during the
pleadings and at the trial, it admitted that Oshakati Garage CC, is
the plaintiff and it has no cause for complaint.  Moreover,
inasmuch as the substitution was effected in terms of an agreement
between the legal representatives of the parties, it seems to me that
the appellant’s legal representatives implicitly accepted at
the time that Oshakati Garage CC had authorised the substitution. The
point
in
limine,

if upheld, would render the proceedings in the High Court nugatory,
which would be prejudicial to the respondent at this late stage. If
the point was taken timeously during the pleadings or at the trial,
the respondent would have been able to address the complaint one way
or another. The law is very well settled on that score. In
Di
Savino v Nedbank Namibia Ltd

2012 (2) NR 507 (SC) where a similar argument was raised, this Court
at 515D-F and 518C-F had this to say:





[21]
In this court, Mr Heathcote, who, together with Ms Schneider,
appeared for the appellant, raised further grounds that were neither
set out in the opposing affidavit nor advanced in the High Court. He
contended that summary judgment should have been refused because
there was no valid power of attorney; the allegations made in the
affidavit in support of the applications for summary judgment are not
adequate and do not comply with the rules; the particulars of claim
do not support the relief sought; and, the particulars of claim do
not sustain a claim for default interest. And as will appear below,
he advanced an entirely new argument in support of the defence based
on release from suretyship.





[33]     
As a general matter, the appeal court is disinclined to allow a party
to raise a point for the first time on appeal because having chosen
the battleground, a party should ordinarily not be allowed to move to
a different terrain. However, the court has a discretion whether or
not to allow a litigant to raise a new point on appeal. In the
exercise of its discretion, the appeal court will have regard to
whether: the point is covered by the pleadings; there would be
unfairness to the other party; the facts upon which it is based are
disputed; and the other party would have conducted its case
differently had the point been raised earlier in litigation. In
Cole
v Government of the Union of South Africa
[4]
supra Innes J, as he then was, put the matter thus:


           


The
duty of an appellate tribunal is to ascertain whether the Court below
came to a correct conclusion on the case submitted to it. And the
mere fact that a point of law brought to its notice was not taken at
an earlier stage is not in itself a sufficient reason for refusing to
give effect to it. If the point is covered by the pleadings, and if
its consideration on appeal involves no unfairness to the party
against whom it is directed, the Court is bound to deal with it. And
no such unfairness can exist if the facts upon which the legal point
depends are common cause, or if they are clear beyond doubt upon the
record, and, there is no ground for thinking that further or other
evidence would have been produced had the point been raised at the
outset.”’
[5]





[25]       
In
Workmen’s
Compensation Commissioner v Crawford and Another

1987 (1) SA 296 (A) at 307G-I, Botha JA put it thus:





So
the appellant had chosen his own battle-ground, as it were, and he
has no cause for complaint if on appeal the Court declines to move on
to a different terrain. This is not a case in which this Court is
constrained to decide a point of law and to deal with the appeal
accordingly, whatever the position taken up by the parties may have
been, on the basis that it is clear that all the relevant facts had
been fully canvassed (cf
Paddock
Motors (Pty) Ltd v Igesund

1976 (3) SA 16 (A) at 23B-G). It is, on the contrary, in my opinion,
a case where, if this Court were to accept the belated submission of
counsel for the appellant on the point of law raised in argument, it
would be wrong to decide the appeal on the basis thereof, for it
would run counter to what was common cause in the Court
a
quo
,
and if the point had been taken there timeously, whether in the
pleadings or otherwise, the possibility cannot be excluded that the
respondents' conduct of their case would have been different.’





[26]       
Therefore,
it follows for these reasons that the point
in
limine
should
fail with costs.





[27]       
After
that detour, I now revert to the principal issues of this case.  They
revolve around whether the agreement between the parties, which was
admitted, embodied an obligation to pay storage fees and whether the
amount of         N$628
500,65 was proven on a balance of probabilities.






[28]       
As
I have already stated, it is not always clear what the basis of the
appellant’s defence is. Counsel for the appellant states in
paragraph 17 in his heads of argument that ‘. . . From the
evidence it appears that the main part of the
lis
between the appellant and the respondent seems to be the issue of
storage fees’ whereas in paragraph 15, he states that the
defence of appellant is set out on page 285 of the record at lines 20
to 30. What is said to be the appellant’s defence was put as
follows to the witness Mr Van Staden:






Sir,
I am going to put it to you, my clients submit there was an agreement
that they do not know whether they owe you money. And if so what
amount? And I am going to show it to you that you also do not know
what amount is due to you. And will come to that now. . . .’






Correctly
interpreted, the extract above means that the appellant’s
defence is about the correctness of the total amount claimed, nothing
about the non-existence of the storage fees agreement.


[29]       
In
its plea to the respondent’s claim, it admitted the agreement
between the parties but denied the agreement on storage fees, the
minimum monthly amount of N$25 000,00 which had to be paid and the
interest of 2.5% per month. These denials are in contrast to the
evidence of Mr Werner Blaauw, who concluded the contract on behalf of
the appellant with Mr Van Staden, who acted on behalf of the
respondent. Van Staden also testified and confirmed the terms of the
contract as per the respondent’s simple summons read together
with the amended declaration and the reasonableness of the amounts
claimed.


 


[30]       
Some
of Mr Blaauw’s evidence is recorded as follows:


 


Q:      
Now, was there any agreement pertaining to storage costs?


A:        
Yes, forty five Namibian Dollars (N$45-00) per bus. And I think for
the smaller cars if there were any, was fifteen Namibia Dollars
(N$15-00) I think per day, yes.





Q:       
The forty five Namibian Dollars (N$45-00) that is per vehicle, is
that per month, per day, per week, or?


A:        
That is per day. Only if the repair fees or the service was not paid
in time. So, for the first 30 days we would not pay any storage fees
but if we did not pay after that time then storage fees would come
into effect. I think that is normal practice within any other
workshop.








Q:       
The Defendant, Namib Contract Haulage alleges that you in respect of
the tow-in services, that would only occur upon written instructions
in fairness to the Plaintiff.


A:        
No (intervention)


 


Q:       
What do you say to that?


A:        
It will take too long because you cannot let the passengers stay in a
bus on an open road and wait for an instruction. That was not
practical. It was done telephonically.


 


Q:       
Now, just to put you in perspective, the amount claimed that is
outstanding balance, that is the outstanding balance by the Plaintiff
it is six hundred and twenty eight thousand five hundred Namibian
Dollars and sixty five cents (N$628 500,65) and this is in respect of
work done, parts installed, storage costs and the like. Now, from
what you have seen during the period were the amounts charged by the
Defendant exorbitant according to you?


A:        
No, I think they were reasonable, compared to the company that used
to do the repairs here in Windhoek.


 


Q:       
The Defendant also alleges that there was no agreement for storage
costs.


A:        
It is impossible, if you do not pay vehicle cannot just stand there
you have to pay the storage costs.


 


Q:       
And it is also your testimony that there was an agreement for storage
costs?


A:        
Yes, definitely.’






[31]       
The
reasonableness of the work done on the appellant’s vehicles was
confirmed by the respondent’s expert witness, Mr Geurtse. On
the analysis of his evidence it becomes clear that the prices charged
by the respondent for the work it had done for the respondent on the
various invoices that were presented to the witness, were much lower
in many instances than the standard prices charged for work of a
similar nature.





Mr
van Staden testified that the N$628 500,65 was due and payable. There
is nothing on record to gainsay that evidence. The appellant did not
call any witnesses to refute the evidence of the respondent’s
witnesses. The cross-examination of the respondent’s witnesses
did not detract from the material aspects of their evidence in chief.
I am satisfied that the Court a quo correctly concluded on the
evidence as a whole that the respondent had proven its claim on a
balance of probabilities.





[32]       
In
coming to this conclusion, I had due regard to the appellant’s
complaint that Messrs Blaauw and van Staden and van Staden’s
wife were interviewed on occasion by counsel for the respondent in
the presence of each other. This is a practice that could result in
the manipulation of evidence – even unintentionally – and
should generally be discouraged. Whilst there may be exceptional
circumstances where such practice is necessary or unavoidable, the
Court will in all instances be alert to the possibility that the
evidence of the one may have been influenced by the statements of the
other during the joint interview and, depending on the circumstances
of each case, will bear that in mind as a factor in assessing the
weight to be accorded to the evidence of the respective witnesses. In
this instance, it is evident that the terms of the agreement as
pleaded was ascertained from Mr van Staden before the joint
interviews in preparation for trial and that his evidence, even
without corroboration from Blaauw on that point during the trial, was
not gainsaid by other witnesses or detracted from in
cross-examination and would have sufficed to discharge the
respondent’s burden of proof on that score.





[33]       
The
appeal has no merit and it should fail.






[34]       
Accordingly
I make the following order:





1.   
The
appellant’s application for condonation and reinstatement of
the appeal is granted and no order is made as to the costs thereof.


 


2.   
The
respondent’s application for an amendment substituting for the
name ‘Trailer Spares & Repairs CC’ wherever it may
appear the name of the close corporation ‘Oshakati Garage CC’
is granted in respect of this appeal (including the citation of the
respondent) but no order of costs is made.


 


3.   
The
point
in
limine

raised in relation to the respondent’s failure to lodge a power
of attorney in terms of High Court rule 7(1) is dismissed.


 


4.   
 The
appeal is dismissed with costs, which costs include the costs of one
instructing and one instructed counsel.


 


5.   
Paragraph
16 of the order of the High Court made in Case No. I 2377/2007 on 1
March 2012 is amended to read:


 


Judgment
is granted in favour of Oshakati Garage CC in the amount of six
hundred and twenty eight thousand five hundred Namibian Dollars and
sixty five cents (N$628 500,65) together with interest thereon at the
rate of 20% per annum, such interest to run from the date of the
summons to date of final payment.’








MAINGA
JA











MARITZ
JA








MTAMBANENGWE
AJA






APPEARANCES





APPELLANT:C
Mostert


Instructed
by Kruger, van Vuuren & Co





RESPONDENT:
A van Vuuren


Instructed
by Kirsten & Co Inc






[1]
See Trailer
Spares and Repairs CC (Oshakati Garage CC) v Namib Contract Haulage
(Pty) Ltd
, Case No. I
2377/2007 judgment of the High Court delivered on 1 March 2012.




[2]
1981 (1) SA 765 (T).




[3]
1978 (1) SA 779 (T).




[4]
1910 AD 263 at 272-273; Paddock
Motors (Pty) Ltd v Igesund

1976 (3) SA 16 (AD) at 23;
Ministry
of Regional and Local Government and Housing v Muyunda

2005 NR 107 (LC) 110-111;
Donnely
v Barclays National Bank Ltd

1990 (1) SA 375 (W) at 380H-381B




[5]
At 314A-C