Modiba and Another v Oosthuizen (NW10/2018) [2018] ZACONAF 9 (13 August 2018)

Modiba and Another v Oosthuizen (NW10/2018) [2018] ZACONAF 9 (13 August 2018)

The court found that the defendant undertook in writing to repair the defective borehole by 28 December 2016 or refund R 30 000.00 to the plaintiffs if he failed. The defendant did not repair the borehole and failed to provide credible evidence supporting his counterclaim regarding the first borehole. The documentary evidence supported the plaintiffs' version that the second borehole was drilled for a price and not for free. The written undertaking was interpreted as an agreement to reduce the price due to defective service under Section 54(2)(b) of the Consumer Protection Act. Consequently, the defendant is liable to refund the plaintiffs R 30 000.00 and the counterclaim is dismissed.

Citation
[2018] ZACONAF 9
Parties
Plaintiff: Thabo Modiba; Plaintiff: Donior Lerotho Modiba; Defendant: Willem Oosthuizen
Court
Consumer Affairs Court
Jurisdiction
South Africa
Judgment Date
13 August 2018
Case Number
NW10/2018
Procedural Posture
Civil Trial / Judgment Delivered After Hearing and Consideration of Evidence and Counterclaim
Outcome
Judgment for the plaintiffs; defendant's counterclaim dismissed.
Judges
J Nkomo, Kgomongwe, Gaobepe, Khula
Legal Topics
Consumer Protection Act, Service Quality, Refund for Defective Service
Commercial and Corporate Consumer Protection Act Service Quality Refund for Defective Service

Case Brief

Summary, issues, holding and outcome

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Parties

Thabo Modiba

Plaintiff

Donior Lerotho Modiba

Plaintiff

Willem Oosthuizen

Defendant

Procedural Posture

Civil Trial / Judgment Delivered After Hearing and Consideration of Evidence and Counterclaim

Legal Issues

  1. 1 Whether the defendant is liable to refund the plaintiffs R 30 000.00 for failure to repair the borehole as promised.
  2. 2 Whether the defendant's counterclaim for R 22 000.00 in respect of a previous borehole is valid.
  3. 3 Whether the written undertaking constitutes an agreement under Section 54(2)(b) of the Consumer Protection Act.

Ratio Decidendi

The court found that the defendant undertook in writing to repair the defective borehole by 28 December 2016 or refund R 30 000.00 to the plaintiffs if he failed. The defendant did not repair the borehole and failed to provide credible evidence supporting his counterclaim regarding the first borehole. The documentary evidence supported the plaintiffs' version that the second borehole was drilled for a price and not for free. The written undertaking was interpreted as an agreement to reduce the price due to defective service under Section 54(2)(b) of the Consumer Protection Act. Consequently, the defendant is liable to refund the plaintiffs R 30 000.00 and the counterclaim is dismissed.

Court Disposition

Judgment for the plaintiffs; defendant's counterclaim dismissed.

Orders

  • The defendant's counterclaim does not succeed.
  • The defendant is ordered to immediately pay the amount of R 30 000.00 to the plaintiffs as well as interest at the prescribed rate from the date of judgment to the date of ultimate payment.