2

The
Plaintiff herself gave evidence on the value of her motor car but as
an unqualified layman, her evidence obviously carried no
weight in
this respect.

The
parties each called a dealer in the used motor car business to give
evidence of the value of the Plaintiff's motor car. Mr.
Sally, who is
the managing director of Service Motors and a dealer in used motor
cars, said that in August 1985 the Plaintiff's
car was brought in for
repair in the nature of panel beating. He said that he drove the car
and found it to be in reasonable condition.
He said that its retail
value was R8100, that is, the price at which such vehicle could be
sold to the public, and its trade-in
price was R6650, that is, the
price that a dealer would be prepared to allow the owner on a
trade-in the purchase of motor vehicle.

Mr. Sally
did not know what the mileage of the car was which was 2 years and 3
months old. The auto Digest, being the dealers manual
to which Mr.
Sally made reference during the course of his evidence also indicated
that a vehicle of this model had realised a
high price of R9615 and a
low price of R7000, at the time of Plaintiff's loss.

Cross-examination
of Mr. Sally was directed to show that the vehicle's seats and mats
were in poor condition and that the spray
painting and the panel
beating itself to which he referred left obvious signs that this car
had been involved in a collision.The
Defendant's expert was Mr.
Sebellalona who is the sales manager of Defendant and familiar with
the value of

3

second
hand motor cars and in particular of the Toyota for which Defendant
is the agent.

This
witness said that the retail value of such a model at the relevant
time was R8210, but since it had done a very high mileage
(of some
111000 kilometers) and had been involved in an accident he considered
its retail value to be R5,000.

However,
he said that he applied a rule-of-thumb to motor cars with a high
mileage in determining their retail value by deducting
5% off the
auto Digest value for every 20000 km. on the clock. In this case the
Plaintiff's Toyota had completed 20000 km. 5 times
so that on this
rule of thumb he would deduct 25% off R8210 leaving a balance of
R6168 from this amount which he would also deduct
about R200 for its
damaged condition leaving a balance of R5968.

It seems
to me that this is a more accurate way of determining the values of
motor cars which differ so much in mileage and condition
even though
of the same age and model. The auto digest is of course only a guide
to the value of a motor car as an average of prices
for the model
realised at the relevant time throughout South Africa. I regard Mr.
Sebellalona's approach as far more realistic
than Mr. Sally's blind
acceptance of the auto guide as the sole indicator of its value.

Mr.
Sebellalona did say that in his opinion the value of the car as he
saw it was R5000 but he admitted that he

did not
examine it and it was a casual estimate of its probable value. I
think this must yield to the more

4

careful
calculation offered by his own method, albeit rule-of-thumb, in
determining the probable retail value of the motor car.

I accept
therefore that the value of Plaintiff's motor car was R5968 and that
Plaintiff has suffered damages in this amount. In
view of my further
findings in this matter I need not concern myself with the fact that
Defendant has pleaded that the replacement
value of the vehicle was
R6750. Since the value of the repairs which had been done by the
Defendant were lost to Plaintiff, her
damages should not be reduced
by the cost of such repairs.

The
hiring of a replacement vehicle.

Plaintiff's
vehicle which had been repaired by 4th December 1984 was missing on
that date when Plaintiff's messengers arrived to
collect it at
Defendant's premises. That Plaintiff accepted that the motor car was
irrecoverable appears from her attorney's letter
dated 5th December
1984 which is attached to the pleadings.

Plaintiff
has taken no steps to replace the vehicle, but has, according to her
evidence, hired vehicles from a car hire firm at
a cost of several
thousand rand for a considerable period while awaiting the outcome of
her claim against the Defendant. It seems
to me that apart from
questions of mitigation, Plaintiff would be entitled in law to the
cost of hiring a motor car only until
such time as she is able to
procure a replacement. Possible questions of impecuniosity on the
part of the Plaintiff as affecting
her ability to procure a
replacement do not arise as the Plaintiff has demonstrated her means
to buy a

5

replacement
by inference from her expenditure of large sums of money totaling
some R9000 on the hire of a motor car.

It would
therefore be incumbent upon Plaintiff to prove the period she would
have required to find and buy an equivalent vehicle
and her use of a
hired motor car

during
that period would have been reasonable. I find it grossly
unreasonable for the plaintiff to have spent so much money on the

hiring of a motor car without making any effort to replace it.

I am
justified as well in assuming that this is an ordinary motor car
which is readily replaceable and within the means of Plaintiff
if not
for cash then on hire-purchase terms.

There is
no evidence to show how many days it would have taken Plaintiff to
find a replacement but it can be safely assured that
she could have
found it before 16th January, 1985 the date when, according to the
invoices of the car hire firm, she first commenced
hiring a car, nor
is there any evidence of the loss occasioned to Plaintiff by being
deprived of the use of her motor car until
that date.

In these
circumstances the Plaintiff has failed to establish her case for
damages for loss of use of her car and it is therefore
unnecessary
for me to inquire into the fact that a substitute motor car was
delivered to her attorney on 9th January 1985 for her
use pending the
outcome of the case. The fact that it might have been a slightly
inferior car to the one lost would not have justified
rejection of
this car. But in any event it was accepted by her attorney who failed
to inform his client of his acceptance of the
car or to deliver it to
her for her use

6

but kept
it and used it himself while no doubt advising his client to spend
thousands of rands in hiring another replacement vehicle.

I am
satisfied therefore that the Plaintiff's proven damages do not exceed
R5968.

On 5th
November 1985 Defendant paid an amount of R6900 into Court as an
unconditional payment in terms of Rule 38(1) of the Rules
of Court in
respect of Plaintiff's claim for the value of the motor car. Although
I have found on the evidence that its value is
less than R6900 I am
bound to enter judgment for the Plaintiff in the amount paid into
Court, which in terms of the Rule under
which it was paid amounts to
an unconditional admission of liability in the amount paid in.
Plaintiff is therefore entitled to
judgment against the 1st Defendant
in an amount of R6900 with costs up to and including the 5th day of
November 1985. The Plaintiff
shall pay all the costs of the 1st
Defendant incurred thereafter. At the trial, the Plaintiff withdraw
her claim against the 2nd
Defendant and that claim was dismissed with
costs. In addition the Plaintiff shall pay all the costs of the 1st
Defendant occasioned
by the joinder of the 2nd Defendant.

D.S. LEVY

ACTING
JUDGE

21st
November, 1985.

For
Plaintiff : Mr. Masoabi

For
Defendants : Mr. Redelinghuys