WINDHOEK - The Windhoek High Court has indemnified a garage accused of failing to carry out the instructions of a client and in addition granted it an amount of N$30,000 for partial repairs undertaken on a vehicle of an Angolan after the latter cancelled the work contract.
High Court Judge Thomas Masuku granted the auto repair shop, 4 Fourz Automotive absolution from the instance on a claim the Angolan man, Adelino Jose Texeira, lodged at the High Court for payment of N$500,000 as the fair market value of a new vehicle in light of the garage’s alleged failure to repair the vehicle. Absolution from the instance is when the court says you are not liable. The court however left open the claim for the return of the deposit Texeira paid to the garage.
Judge Masuku ordered the garage to return only N$40,000 of the N$70,000 deposit Texeira paid and ruled that the garage is entitled to N$30,000 for the work it did on the vehicle, such as some panel beating work and the stripping of the vehicle in order to straighten damaged parts.
The history of the case is that Texeira delivered the vehicle to 4 Fourz Automotive for repairs after it was involved in an accident, and it was agreed that Texeira would deposit the N$70,000 for the sourcing of parts needed for the repairs. However, it emerged that the parts were not locally available and needed to be sourced from Korea where the vehicle was manufactured. However after the garage failed to source the parts needed, Texeira decided to cancel the contract and claim a fair market value for a new model of the vehicle in question. The garage refused and in an attempt to diffuse the situation offered to return the deposit, together with the vehicle, but Texeira refused and instead instituted the court proceedings. According to Judge Masuku, after he granted 4 Fourz Automotive absolution, the only matter to be determined is whether Texeira is entitled to the return of the full deposit or only part of it.
“That being the case, it becomes clear as noonday that the scope of the matters for determination is very narrow indeed. After reviewing the evidence, I can state with no fear of contradiction that there is very little contestation on the matter for determination,” the judge stated. According to him, there is no doubt that Texeira paid the deposit and the garage admits receipt of it.
The money was to enable the garage to source the parts needed and it is clear from the evidence that the garage failed to do so, Judge Masuku said, and continued: “In my view, the crisp question for determination is whether the plaintiff (Texeira) is entitled to the return of his entire deposit and if not, how much is he entitled to.” He said that he was caught between a rock and a hard place as the only evidence he had was that of Abdullah Mia Ismael who worked on the vehicle.
According to the judge, the evidence of Abdullah was that he charged Texeira per hour and the work he did on the vehicle amounted to between N$25,000 and N$30,000. There was no evidence to refute this, the judge said, adding that in the premises he is of the considered view that in the absence of a full breakdown of the amount, it would be proper to strike a figure between the two figures given by Abdullah in the interest of justice to both parties.
Judge Masuku also ordered that Texeira should pay the costs of the application.
According to him, the matter should never have come to court had Texeira acted upon proper advice as the garage offered to return his full deposit and his vehicle which was in a better condition than it was when he delivered it to the garage, which would make it unnecessary to bring the matter to court.
In his view, the judge said, the garage’s tender to return the deposit, juxtaposed with Texeira’s refusal of the tender, which would have averted the proceedings, it would only be fair and reasonable that Texeira should be ordered to pay the costs of the proceedings.
2018-08-08 10:08:17 10 months ago