Sedma Removals CC v Never General Dealers CC and Another (33548/2016) [2018] ZAGPPHC 789 (19 October 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

Case Number: 33548/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

SEDMA REMOVALS CC

Plaintiff

And

NEVER GENERAL DEALERS CC

First Defendant

NEVER SIBANDA

Second Defendant

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1] The plaintiff instituted action against the defendants for damages occasioned by the first defendant's inability to return a Volvo BL 61B Backhoe Loader (TLB), which it leased from the plaintiff. It is common cause between the parties that the TLB was stolen on 16 April 2015, whilst in the possession of

the first defendant.

[2] The merits of the matter were disposed of by Jacobs AJ, who ordered the first defendant to pay the plaintiff the damages it had suffered as a result of the theft of the TLB.

EVIDENCE

[3] Mr Moyo, a member of the plaintiff testified that the plaintiff purchased the TLB during September 2014 for a purchase consideration of R 835 200, 00.

[4] When the TLB went missing on 16 April 2015, it was in a good condition and had only 250 hours of service. Mr Moyo's evidence was not disputed.

[5] Mr de Witt, an expert in the earthmoving equipment industry, testified that he became involved in the industry in 1991 when he worked at an opencast mine, which utilised TLB's in its operations. From 1993 to 1996, he was manager of the mining operations at opencast mines in Boksburg, Hotazel, Rustenburg and Secunda.

[6] In his aforesaid position he was inter alia responsible for the purchase of TLB's and he obtained intimate knowledge of the prices of TLB's.

[7] During the period 1996 to 2013 he was a sales person of new Case machinery, which included TLB's.

[8] In 2013 he started his own business which specialises in the repair and selling of second-hand TLB's. The plaintiff requested a valuation of its stolen TLB and Mr de Witt provided two valuations, one in respect of the value in 2015, to wit R 710 000, 00 and one for the value of the TLB in 2017, to wit R 650 000, 00.

[9] In Mr de Witt's expert opinion, the amount paid by the plaintiff for the TLB in 2014 was market related. Mr de Witt explained that the heavy duty equipment industry does not have a printed guide in respect of the second­ hand value of TLB's. It is, however, established practice in the industry to deduct 10% per annum from the machinery's purchase price to cater for the depreciation in value.

[10] Mr de Witt testified that the amount of hours the TLB had worked, to wit 250 hours, is indicative of the fact that the TLB was almost as good as new. He equated the amount of hours to a passenger vehicle with 10 000km on the clock. Notwithstanding the aforesaid, and to be on the conservative side, Mr de Witt testified that he deducted 15% from the original purchase price.

[11] During cross-examination, Mr de Witt conceded that he had never sold Volvo TLB's. It was put to Mr de Witt, that the aforesaid concession, indicates that he had no knowledge of the prices of Volvo TLB's. Mr de Witt explained that Volvo was a competitor in the market and that it was good business practice to closely monitor the prices of one's competitors in the market. This did not only pertain to Volvo, but to various other companies that sold heavy duty equipment.

[12] Mr de Witt testified that, whilst he was still selling new TLB's, he always had the price lists of all the competitors in the market, which lists and more specifically the prices thereon he had intimate knowledge of.

[13] It was put to Mr de Witt that he left the new vehicle sales market in 2013 and consequently would not have had insight into the prices of new TLB's for the past four to five years. Mr de Witt answered that, although he sells second- hand TLB's, he keeps abreast of the prices of new TLB'S. It was put to him that he no longer receives pricelists, to which he conceded, but testified that, due to his extended experience in the market since 1996, he was still in a position to determine the reasonableness of the prices of new TLB's.

[14] When pushed further on the issue of prices of new Volvo TLB'S, Mr de Witt testified that he phoned a Volvo dealer to confirm the price of the TLB in question.

[15] This concluded the evidence on behalf of the plaintiff. The defendant closed its case without leading any evidence.

Legal principle

[16] The plaintiff is entitled to the market value or replacement value of the TLB at the date it was stolen, namely April 2015. [See: Philip Robinson Motors (Pty) Ltd v NM Data (Pty) Ltd1975 (2) SA 420 A.]

[17] In the aforesaid case, the court was also faced with the determination of the value of a vehicle at the time the delict was committed. The following excerpt at page 428 H is apposite to the issue in dispute:

"As to that, the respondent's unlawful alienation of the car placed the appellant in a difficulty about leading evidence of its value as at that date, for the appellant had not seen the car since November 1970. However, the appellant led or elicited the best evidence which it could. The appellant's director testified that on 3 November 1910, when the car was attached in the proceedings in the magistrate's court, it was stored at the appellant's premises. He examined it. It had done a fairly low mileage. It was in excellent a/I-round condition, mechanically and as to the body. From his impressive experience as a motor dealer, and aided in part by the Auto Dealers Digest for the period July/August 1910, he valued the car as at November 1910 at R3 000, a being a 'very fair estimate'."

[18] Mr Seabi, who appeared on behalf of the defendants, submits that the expert evidence of Mr de Witt did not discharge the onus that rested on the plaintiff to prove the quantum of the damages it had suffered.

Expert evidence

[19] In the recent judgment of Bee v Road Accident Fund 2018 (4) SA 366 (SCA), the Supreme Court of Appeal gave, at paragraphs [22] to [29], a detailed expose of the approach to be followed by a court in respect of expert evidence:

[22] It is trite that an expert witness is required to assist the court and not to usurp the function of the court. Expert witnesses are required to lay a factual basis for their conclusions and explain their reasoning to the court. The court must satisfy itself as to the correctness of the expert's reasoning. In Masstores (Pty) ltd v Pick 'n Pay Retailers (Pty) ltd [2015] ZASCA 164; 2016 (2) SA 586 (SCA) para 15, this court said ‘[l]astly, the expert evidence lacked any reasoning. An expert's opinion must be underpinned by proper reasoning in order for a court to assess the cogency of that opinion. Absent any reasoning the opinion is inadmissible In Road Accident Appeal Tribunal & others v Gouws & another/2017] ZASCA 188; [2018] 1 All SA 701 (SCA) para 33, this court said '[c]ourts are not bound by the view of any expert. They make the ultimate decision on issues on which experts provide an opinion (See also Michael & another v linksfield Park Clinic (Pty) ltd & another [2002] 1 All SA 384 (A) para 34.)

[23] The facts on which the expert witness expresses an opinion must be capable of being reconciled with all other evidence in the case. For an opinion to be underpinned by proper reasoning, it must be based on correct facts. Incorrect facts militates against proper reasoning and the correct analysis of the facts is paramount for proper reasoning, failing which the court will not be able to properly assess the cogency of that opinion. An expert opinion which lacks proper reasoning is not helpful to the court. (See also Jacobs v Transnet ltd t/a Metrorail [2014] ZASCA 113,· 2015 (1) SA 139 (SCA) paras 15 and 16; see also Coopers (South Africa) (Pty) ltd v Deutsche Gesellschaft Fur Schadlingsbekampfung mbH 1976 (3) SA 352 (A) at 371F)

[24] In Thomas v BD Sarens (Pty) ltd [2012] ZAGPJHC 161 para 13, Sutherland J said: '[w]here two or more experts meet and agree on an opinion, although the parties are not at liberty to repudiate such an agreement placed before the court, it does not follow that a court is bound to defer to the agreed opinion. In practice, doubtlessly rare, a court may reject an agreed opinion on any of a number of grounds all amounting to the same thing; ie the proffered opinion was unconvincing'. In Malema v Road Accident Fund

[2017] ZAGPJHC 275 para 94 Molahlehi J expressed the same view.

[25] In Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99,· 509 US 579,· 113 S. Ct 2786 (1992), which concerned scientific testimony, the Supreme Court of the United States dealt with, inter alia, the admissibility of expert opinion in terms of the Federal Rules of Evidence and particularly rule 702. In its summary at 507 the court said 'but the Rules of Evidence especially Rule 702 do assign to the trial Judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand'.

[26] In the European Union and United States Antitrust Arbitration cases expert evidence is utilised. The tribunal, if it deems fit, can appoint an expert to prepare a report and lead evidence before the tribunal. The expert evidence is not binding on the tribunal even if the evidence is led by the tribunal appointed expert. The tribunal is required to give reasons, 1f it rejects the evidence of an expert witness. The evidence of an expert witness, even if such expert witness is appointed by the tribunal, is not binding on the tribunal unless the tribunal is satisfied that such evidence is reliable. (See GB P Landolt and W Kluwen (eds) EU and US Antitrust Arbitration (2011) vol 1 at 284,· and J F Poudret and S Besson Comparative Law of International Arbitration 2 ed (2007).)

[27] The England and Wales Court of Appeal (Civil Division), in Huntley (also known as Joseph Paul Hopkins)(A Protected Party by his Litigation Friend, Alison Jane McClure) v Simmons [2010] EWCA Civ 54, dealt with expert opinion and the joint statement of two neuropsychologists. One of the parties made the point that the judge was bound by the joint statement as to the conclusion that the judge should reach. The judge rejected this submission, holding that the joint statement was only part of the evidence before the court. The court of appeal, civil division agreed with the view of the trial judge.

[28] In Moloi v The State [1995] BWCA 30; 1995 BLR 439 (CA), the court of appeal dealt with the admissibility of expert witnesses. The court said that such witnesses must speak in detail to the facts upon which their opinions and conclusions are based. The court went further and quoted with approval the statement of Ramsbottom Jin R v Jacobs 1940 TPD 142 at 14-7 where he said.·

'Expert witnesses are witnesses who are allowed to speak as to their opinion, but they are not the judges of the fact in relation to which they express an opinion, the court . . . is the judge of the fact . . . . In cases of this sort it is of the greatest importance that the value of the opinion should be capable of being tested, and unless the expert witness states the grounds upon which he bases his opinion it is not possible to test its correctness, so as to form a proper judgment upon it. '

[29] In The State v. Thomas (CC 19/2015) [2016] NAHCMD 320 (19 October 2016), the mental condition of the accused, which was in question, was enquired into by two psychiatrists and they produced reports. In respect of the experts' reports, the court at para 29 said·

'When dealing with expert evidence the court is guided by the expert witness when deciding issues falling outside the knowledge of the court but within the expert's field of expertise·, information the court otherwise does not have access to. It is however of great importance that the value of the expert opinion should be capable of being tested This would only be possible when the grounds on which the opinion is based is stated 7 It remains ultimately the decision of the court and, although it would pay high regard to the views and opinion of the expert, the court must, by considering all the evidence and circumstances in the particular case, still decide whether the expert opinion is correct and reliable.'

See also State v Apadile 2011 1 BLR HG."

Evaluation

[20] In casu the evidence of Mr de Witt is undisputed. Mr de Witt did not tailor his evidence to favour the plaintiff. To the contrary, he gave a straightforward version of his experience in the field of new and second-hand TLB's.

[21] The method of determining the value of a second-hand TLB, to wit, by deducting 10% per annum from the original purchase price, is based on trade usage and founded on logical reasoning.

[22] The only point raised by Mr Seabi that needs further examination, is whether Mr de Witt was in a position to determine the reasonable purchase price for a 2014 Volvo TLB. Firstly, it is common cause that the plaintiff purchased the TLB in 2014 for an amount of R 835 200, 00.

[23] In Mr de Witt's opinion the purchase price was reasonable. His opinion is based on his 17 years of experience in the selling of new TLB's as well as his 4-5 years' experience in the TLB market, albeit in the second-hand market.

[24] His opinion was corroborated by an employee of Volvo. If Mr de Witt's opinion in respect of the value of a new Volvo TLB was only based on the information obtained from Volvo, the hearsay nature of the evidence would have casted doubt on his ability to form an independent opinion.

[25] Mr Seabi did not object to the hearsay evidence and I deem the evidence to be merely supplementary to Mr de Witt's own estimation as was the case in the Philip Robinson matter supra where the witness relied on information obtained from the Auto Dealers Digest in order to substantiate his valuation.

[26] In the premises, I am satisfied that the plaintiff succeeded in proving on a balance of probabilities that the fair value of the TLB at the time of the theft was R 710 000, 00.

Interest

[27] Mr Coetsee, counsel for the plaintiff, submitted that interest should run from the date of demand, being the date on which summons was served. This submission is in line with section 2A of the Prescribed Rate of Interest Act, 55 of 1975.

[28] In Adel Builders (Ply} Ltd v Thompson 2000 (4) SA 1027 SCA, it was, however, held that the court retains a discretion in respect of inter alia the date from which interest should run. The discretion is exercised on what would be just in the given circumstances of the matter.

[29] In the present circumstances, summons was served on the defendant during May 2016. In its particulars of claim the plaintiff claimed the full purchase price of the TLB.

[30] The notice in respect of Mr de Witt's expert evidence, indicating the fair value of the TLB at the time of the theft, was only served on the defendant on 26 February 2018.

[31] By virtue of the aforesaid, I am of the view that interest should run from 1 March 2018 at the prescribed mora interest rate.

ORDER

[32] In the premises, the defendant is ordered to pay to the plaintiff:

1. The amount of R 710 000, 00 with interest at a rate of 10,25% from 1 March 2018 to date of payment.

2. Costs of suit.

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE HEARD 11 October 2018

JUDGMENT DELIVERED 19 October 2018

APPEARANCES

Counsel for the Plaintiff: Advocate M. Coetsee

(082 447 4327)

Instructed by: ML Schoeman Attorneys

(012 562 9900)

Ref: MLS/KREIMM0362

Counsel for the First and

Second Defendants: Mr Seabi (with right of appearance)

Instructed by:

KP Seabi and Associates

(012 325 7028/082 5611 971)

Ref: KS372/RP/Mr Seabi