HIGH COURT OF NAMIBIA: MAIN DIVISION, WINDHOEKJUDGMENT

CASE NO.: I 304/2012In the matter between:

NATURAL NAMIBIA MEAT PRODUCERS(PTY) LTD t/a ARANOS ABATTOIR PLAINTIFF

and

RUPPERT PRENN t/a MEAT FOR AFRICA DEFENDANT

Neutral citation: Natural Namibia Meat Producers (Pty) Ltd v Prenn (I 304-2012)

[2015] NAHCMD 96 (17 April 2015)

Coram: UEITELE,J

Heard on: 19 September 2013, 25 November 2013, 28 November 2013, 29 November 2013, 02 December 2013, 03 December 2013 & 25 April 2014

Delivered on: 17 April 2015

Reasons on: 08 May 2015

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Flynote: Evidence - Onus of proof - When discharged - Estimate of credibility of

witness inextricably bound up with consideration of probabilities of case.

Summary: In this matter the plaintiff commenced action against the defendant by way

of simple summons claiming an amount of N$ 32 200 in respect of goods sold and

delivered by the plaintiff to the defendant during September 2011 at the special instance

and request of the defendant. The defendant entered notice to defend the plaintiff’s

claim. After the defendant gave notice that he will defend the action the plaintiff filed its

declaration.

The plaintiff alleges that the defendant removed sets of offal and sold it and thereafter

repudiated the agreement allegedly because the offal was not fit for the purpose for

which he acquired it. The plaintiff accepted the repudiation but held the defendant

responsible for the offal removed. The defendant denied having repudiated the

agreement and alleges that it is the plaintiff who breached the agreement and thus

repudiated it.

From the pleadings and the evidence that was lead at the trial, it emerges that, the

issue which is in dispute between the parties is, how many sets of offal the defendant

took from the container, how many he sold and how many sets of offal he returned to

the container. The question thus revolves around how many sets of offal if any the

defendant is liable to pay the plaintiff for.

Held that since the defendant did not lead evidence as to how many sets or individual

pieces of offal he has removed from the container or how many sets or individual pieces of

offal he sold or how many sets or individual pieces of offal he has returned to the

container, the court is of the view that the defendant has failed to discharge the duty cast

upon him to adduce evidence in order to combat a prima facie case made by the

plaintiff.

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ORDER

1. The court grants judgment in favour of the plaintiff and the defendant is ordered

to pay to the plaintiff the amount N$ 25 208.

2. The defendant is furthermore ordered to pay interest on the amount N$ 25 208 at

the rate of 20% per annum which is calculated from 17 April 2015 to the date of

payment both days included.

3. The defendant must pay the plaintiff’s costs at a party and party scale, which

costs include the costs of one instructing and one instructed counsel.

JUDGMENT

UEITELE, J

INTRODUCTION

[1] In this matter the plaintiff commenced action against the defendant by way of

simple summons claiming an amount of N$ 32 200 in respect of goods sold and

delivered by the plaintiff to the defendant during or about September 2011 at the special

instance and request of the defendant. The defendant entered notice to defend the

plaintiff’s claim. After the defendant gave notice that he will defend the action the

plaintiff filed its declaration. In the declaration the plaintiff amongst others makes the

following allegations: (I quote verbatim from the plaintiff’s declaration).

‘3 During or about March – April and at Windhoek, plaintiff, duly represented by D J

Steynberg and defendant, acting personally, entered into an oral agreement.

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4. In terms of the agreement:

4.1 plaintiff sold to defendant 1 (one) container containing 4,000 (four

thousand) sets of tripe (hereafter referred to as ‘the goods” at defendant’s

special instance and request.

4.2 each set tripe consisted of 1 (one) sheep head, 16 (sixteen) feet, entrails

and paunch.

4.3 the price was N$ 35 per set, including VAT, the total price of the goods

inclusive of VAT, thus amounting to N$140,000.

5. During or about September 2011 the goods were delivered to defendant who

took delivery of the goods, and paid an amount of N$20,000 to plaintiff.

6. Subsequently to delivery and during or about September 2011, defendant orally

informed plaintiff that the goods were rotten and not fit to be sold to the public

and that defendant wishes to return to plaintiff the reminder of the goods which

defendant had not yet sold.

7. The aforesaid conduct by defendant constitutes a repudiation of the agreement

between the parties.

8. The plaintiff had elected to accept the repudiation and terminate the agreement

between the parties.

9. Plaintiff demanded the return of the goods not sold by defendant as well as

payment for the balance of the goods sold, which amount was to be set-off

against the N$20,000 already paid to plaintiff.

10. During or about September 2011, and with the knowledge and consent of the

defendant, plaintiff took re-possession of the goods not sold by defendant

amounting to N$ 108 800.

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11. In the premises the defendant is indebted to the plaintiff in the amount of N$ 32

200 being the balance of the amount due and payable by the defendant to the

plaintiff after set-off.’

[2] After the plaintiff filed its declaration the defendant requested further particulars

and after the supply of the further particulars the plaintiff amended its declaration. The

effect of the amendments were that the plaintiff alleged that, each set of offal contained

one head, and 4 (four) feet and not 16 (sixteen) feet as initially pleaded, the date on

which the defendant took delivery of the goods sold was April 2011 and not September

2011 as initially pleaded, and that the value of the offal not accounted for by the

defendant is N$31 989-20 and not of N$ 32 200 as initially pleaded.

[3] As I indicated above the defendant defended the action. In his plea he admitted

that during late April 2011 he and the plaintiff concluded an oral agreement in terms of

which he agreed to buy a container containing 4000 sets of offal, but he denied that the

container indeed contained 4 000 sets of offal. He denied having repudiated the

agreement and alleges that it is the plaintiff who breached the agreement and thus

repudiated it. The defendant furthermore denied that the price for the offal sold was

N$35 per set exclusive of VAT. The defendant pleaded that the agreed price was N$35

per set of offal inclusive of VAT. The defendant further pleaded that all sets of offal not

sold by him, were returned to the container. Defendant paid for the sets of offal,

alternatively individual parts of offal, sold by him. The defendant furthermore pleaded

that the plaintiff took repossession of the offal in the defendant’s absence. Defendant

has no knowledge of how the amount of N$109 010 was computed, denies same and

puts plaintiff to the proof thereof. The defendant denied that he is indebted to the

plaintiff in the amount N$31 989-20 or any other amount. I will now proceed to consider

the evidence led on behalf of the parties.

EVIDENCE ON BEHALF OF THE PLAINTIFF

The evidence of Mr. Daniel Jacobus Steynberg

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[4] The plaintiff called two witnesses to testify on its behalf, the first witness being a

certain Mr Steynberg who testified that he is employed by the plaintiff, as General

Manager. He further testified that during March, 2011 he instructed one of the plaintiff’s

employees a certain Mr De Waal to transport a frozen load of 4000 sets of offal to

Container World in Windhoek, where they would be stored in a refrigerated container,

pending sale. He also placed an advert in the “Die Republikien” newspaper in which he

offered the contents of the container for sale at N$35 per set of offal.

[5] In response to the advert and in late March 2011, the defendant contacted him and

expressed his interest in purchasing the whole container of the offal sets from the plaintiff,

he agreed and told him that there were 4 000 sets of offal and that a set would cost N$35

The total amount for the whole container would be N$140 000 exclusive of VAT and

N$161 000 VAT inclusive.

[6] The defendant agreed to this and also told him that he did not have sufficient

storage at that time and would have to remove the sets of offal from the container as and

when he needed them and that he could not remove everything upon time of delivery,

which he agreed to. It was also agreed that payment would be made upon delivery. He

further testified that Mr De Waal was at that time on his way from Aranos to Windhoek with

another load of tripe and he agreed that the defendant could take delivery of the container

from Mr De Waal, and that Mr De Waal would give the defendant the keys to the

container.

[7] The witness further testified that on 07 May 2011, the defendant paid the plaintiff an

amount of N$20 000 and shortly thereafter the defendant contacted the witness and told

the witness that he (defendant) wanted to return the goods as he was overwhelmed by the

amount of the goods and could not sell everything. The defendant also mentioned that the

goods were sub-standard. The defendant assured the witness that the payment he had

made was for the goods that he had indeed used. The witness further testified that he

accepted the defendant’s repudiation of the agreement knowing very well that the goods

were not sub-standard or inferior and told the defendant that he, in any event, had other

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parties interested in purchasing the remainder of the goods in the container. He further

testified that he agreed with the defendant that the plaintiff would take delivery from him of

the remainder of the goods as soon as an employee of the plaintiff was able to come to

Windhoek, and that the goods must be left as they were in the container until such time

when the plaintiff comes to Windhoek.

[8] He testified further that Mr De Waal and he came to Windhoek on 20 September

2011 and met the defendant at the container where defendant unlocked the container and

presented the remainder of the goods to them. It was clear to see that there had been a

fair amount of the goods removed and it was also plain to see that the goods were no

longer neatly packed. He furthermore testified that he told the defendant that they would

have to count everything and repackage the goods and then neatly repack them into the

container and that the defendant would have to pay for any goods not accounted for. After

that conversation the defendant then left and did not remain in attendance for the

counting.

[9] He testified that Mr De Waal and the plaintiff’s employees remained, repackaged

and counted the goods and then provided him with a report from which he was able to

ascertain that the following items remained in the container; 2328 heads, 9312 feet, 2312

entrails and 3448 paunches. He further testified that initially when the defendant took

delivery of the container there were 4000 sets of offal, which meant that there were; 4 000

heads, 16 000 feet; 4 000 entrails and 4 000 paunches. The difference between what was

originally in the container and what was found in the container after repackaging and

recounting was 1 672 heads; 6 688 feet; 1 688 entrails and 552 paunches.

[10] The witness further testified that he then sent a letter to the defendant per facsimile

in which he set out the shortages and explained that the defendant needed to pay the

plaintiff an amount of N$31 989-20. He further explained in the letter that, the amount that

was being demanded was calculated and arrived at as follows; 1 672 sets of tripe inclusive

of 1 head and 4 feet charged at N$15 per set amounting to N$25 080, 1 688 entrails

charged at N$8 per entrail amounting to N$13 504 and 522 paunches charged at N$12

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per paunch amounting to N$6 624. The gross total for these offal was thus N$45 208 plus

15% VAT payable on this is N$6 781-20. Therefore the total amount due and payable by

the defendant for the missing goods inclusive of VAT was N$51 989-20. The defendant

had already made a payment of N$20 000 which he subtracted from the amount of N$51

989-20. The outstanding amount is therefore N$31 989-20.

[11] During cross examination the witness conceded that his earlier evidence that the

price of N$35 is exclusive of VAT was incorrect, he also conceded that the pleadings

were incorrect in so far as it is stated in the pleadings that the agreed price would be

thirty-five dollars per set excluding VAT. He conceded that the price of N$35 was

inclusive of VAT. The concession by Mr. Steynberg resulted in the plaintiff further

amending its Declaration to reflect the price at which the set of tripe was sold as N$35

inclusive of VAT and the amount for the unaccounted sets of tripes to be the amount of

N$ 25 208.

The evidence of Jan Christiaan De Waal

[12] The second witness to be called on behalf of the plaintiff was a certain Mr Jan

Christiaan De Waal. He testified that during the latter part of March 2011, he was

instructed by Mr Steynberg to transport a load of 4 000 frozen sets of offal to Container

World in Windhoek where they would be stored in a refrigerated container, pending sale.

He testified that the parcels of the offal were made up as follows, 1 000 bags each bag

containing four heads and sixteen feet, 500 bags each containing eight paunches and 500

hundred bags each containing eight entrails. He personally supervised the loading of the

offal and obtained the necessary certificate from the Department of Agriculture. The

certificate was submitted into evidence and marked as Exhibit “B”, it also reflects content

of the truck as being 4 000 parcels of offal. The truck was sealed after loading. The

temperature in the truck remained at minus 25 degrees Celsius.

[13] The 4 000 sets of offal were offloaded at Container World on the same day. He

personally supervised the offloading, which took approximately 3 hours. The temperature

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in the container was also set at minus 25 degrees Celsius. The offal remained frozen

during the whole offloading process and never defrosted. He locked the container after this

and retained the keys in his possession. He continued to testify that during the latter part

of April 2011, he was back in Windhoek and he was instructed by Mr Steynberg to meet

the defendant at Container World and hand the keys of the container to him (i.e. the

defendant) as he had purchased the offal. The defendant opened the container and

looked inside and told him that he was satisfied with the content and that he would at a

later stage replace the plaintiff’s locks with his own and that upon doing this he would

leave the plaintiff’s locks and keys with Heiko, the manager of Container World.

[14] The witness testified that Mr Steynberg and he came to Windhoek on 20

September 2011, and they met the defendant at the container. The defendant unlocked

the container and presented the remainder of the goods to them. He testified that he

observed that a fair amount of the offal was removed and he also observed that the offal

was no longer neatly packed. In his presence Mr Steynberg told the defendant that they

would have to count everything and repackage the goods and then neatly repack them

into the despatching truck for the new client. He testified that he also heard Mr Steynberg

telling the defendant that he would have to pay for any goods not accounted for and the

defendant replying that the N$ 20 000 he had made during May 2011 was sufficient to

cover the offal that he had removed from the container and sold. After that conversation

the defendant left and did not remain in attendance for the repackaging and counting.

[15] He testified that he and some of his co- employees remained, repackaged and

counted the goods. He submitted into evidence the worksheet marked as exhibit F1 which

he used to count the offal. He explained that the process they followed was to take each

offal (i.e. the head, entrail, feet or paunch) mark it off on the worksheet and at the end add

up all the ticks he made. When they finished counting which took them approximately

three hours he provided Mr Steynberg with a report which indicated that the following

items remained in the container; 2328 heads, 9312 feet, 2312 entrails and 3448

paunches. He further testified that initially when the defendant took delivery of the

container there were 4000 sets of offal, which were packed as follows 1 000 bags

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containing ; 4 heads, 16 feet packed in each bag, 500 bags containing eight entrails in

each bag and 500 bags containing eight paunches in each bag. The difference between

what was originally in the container and what was found in the container after repackaging

and recounting was 1 672 heads; 6 688 feet; 1 688 entrails and 552 paunches.

EVIDENCE ON BEHALF OF THE DEFENDANT

The evidence of Mr. Rupert Prenn

[16] The defendant also called two witnesses to testify on his behalf. He testified that

he is a businessman trading as Meat for Africa in Wanaheda since 2008. His primary

business is the selling of tripe to the general public. He sells at least 1 000 sets of tripe

a week. He further testified that during early May 2011, he acting in person and the

plaintiff (the plaintiff represented by Mr. Steynberg) entered into an oral agreement in

terms whereof he bought 4 000 frozen sets of offal at a net price of N$35 per set or if

they are sold individually at the price of N$15 for one head and four feet, N$12 for each

paunch and N$8 for each entrail. He further testified that he agreed with the plaintiff that

he would remove the offal from the container as and when he needed it for resale at his

butchery and to pay the agreed purchase price for all sets of offal or pieces of offal,

once sold.

[17] The defendant furthermore testified that at the time of entering into the

agreement the offal was already in a container at the yard of Container World for some

time and that Mr. Steynberg advised him that it was not worthwhile for him (i.e.

Steynberg) to travel all the way to Windhoek to open the container. He gave the

container number to the defendant and instructed him to remove the plaintiff’s lock and

then replace it with his lock. Defendant went to Container World and the manager of

Container World pointed out plaintiff’s container to him, the manager also pointed out a

worker on site who could assist with the removal of the lock. That worker knocked the

lock off with a hammer and a piece of flat iron. The offal was frozen and could thus not

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be counted. He testified that he decided to count the amount of sets or individual pieces

as he removes it from the container. He thereafter put his own lock on the container.

[18] For a day and a half thereafter he and his staff removed sets of tripe and

individual pieces from the container and transported it to his butchery with his vehicle

and trailer. He was personally present during removals from the container. He testified

that due to the fact that the entire content of the container was frozen, it was impossible

to remove the offal set by set. His staff had to dislodge the contents by force by using

iron levers. Most of it would not be in bags once dislodged, but were loose individuals

pieces. He counted the stock as he sold same. After selling the offal, either in sets or

individual pieces for a day or two, his regular customers complained that the offal was

rotten. His staff also complained that, as soon as the tripe started to defrost, it gave off

an unpleasant smell and was rotten. It was not fit for human consumption, which was

the purpose for which he bought it.

[19] He testified that he then called Mr. Steynberg and advised him that the offal was

rotten and that he is not prepared to purchase or sell any further sets or pieces of offal.

Mr. Steynberg agreed that he could return the few unsold frozen sets or individual

pieces of offal still in his possession to the container, which he did and locked the

container. His lock remained on the container. Since then he did not remove or sell any

further tripe. He calculated the tripe which he removed and sold to his customers and

paid an amount of N$20 000.00 in settlement of what he owed plaintiff. Many regular

customers, in any event, returned and refused to pay for the rotten offal and he suffered

damages as a result thereof.

[20] A few weeks later the plaintiff’s Mr. Jan de Waal phoned him and advised him

that his driver will be delivering more tripe to the container. At the time he advised

plaintiff that he was busy and was unable to attend to the container immediately to

unlock same. When he arrived at the container later, the plaintiff’s staff had already

removed his lock by force and where offloading unknown quantities of tripe into the

container. He protested and Mr. Jan de Waal informed him that he could not afford to

wait for him the whole day. He further testified that he provided another lock to relock

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the container after Jan had offloaded the further lot of offal. He furthermore testified that

later in the year, possibly September 2011, Mr. Steynberg called him again requesting

him to open the container which he did as they wished to remove the tripe and send it to

the North. He went to unlock the container but he was not present when plaintiff

removed the contents. A day later plaintiff called him to advise him that there were sets

of tripe short.

The evidence of Mr. Daantjie de Witt

[21] The second witness to testify on behalf of the defendant was a certain Mr.

Daantjie de Witt who testified that, he was employed at Sirkel Transport, Windhoek as a

driver, and that during 2011, he was also so employed. He testified that on 04 May

2011 Sirkel Transport was subcontracted by WP Transport to transport a load from

Aranos Abattoir Windhoek. On the same day he loaded 4 000 sets of offal at Aranos

Abattoir and transported it to Windhoek. He was instructed to off-load it at Container

World where Mr. Jan de Waal would meet him.

[22] The witness proceeded and testified that upon his arrival at Container World he

met Mr. de Waal at a locked container. Mr. de Waal informed him that a certain Mr.

Prenn (the defendant) had the keys to the lock. In his presence Mr. de Waal called the

said Mr. Prenn and he overheard De Wall telling the said Mr. Prenn that he would not

be able to wait for him. After ending the call he (i.e. De Wall) broke off the lock on the

container. Inside the container he noticed there was already some offal, he could not

say how much but he off-loaded approximately half of his load into the specific container

of which the lock was cut off by Mr. De Waal. After he off loaded the offal in that

container Mr. De Waal instructed him to move to the adjacent container, which he did

and the workers then off loaded the remainder of the offal in the second container. After

he finished off loading the offal in the second container the defendant then arrived. He

was clearly annoyed and protested to Mr. de Waal, enquiring why the lock to the

container was removed in his absence. He made it clear to Mr. de Waal that he was

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unhappy, since he had no idea of what was added or removed from the container to

which he had the keys. He thereafter left.

THE ISSUE IN DISPUTE

[23] From the pleadings and the evidence that was lead at the trial I have identified

the issue which is in dispute between the parties to be simply, how many sets of offal

the defendant took from the container, how many he sold and how many sets of offal he

returned to the container. The question thus revolves around how many sets of offal if

any the defendant is liable to pay the plaintiff for.

THE LEGAL PRINCIPLES

[24] In our law there is the principle of pacta sunt servanda which requires that

contracts must enforced however they may be.1 Hoffmann & Zeffert2 argue that: “Any

rule of law which annexes legal consequences to a fact such as negligence or the

making of a contract, must, as a necessary corollary, provide for which party is

supposed to prove that fact.”

[25] In respect of the burden to proof what a party is claiming from another Davis,

AJA said the following in the matter of Pillay v Krishna and Another3:

'The first principle in regard to the burden of proof is thus stated in the Corpus Juris ...If

one person claims something from another in a Court of law, then he has to satisfy the

Court that he is entitled to it. But there is a second principle which must always be read

with it... Where the person against whom the claim is made is not content with a mere

denial of that claim, but sets up a special defence, then he is regarded quoad that

defence, as being the claimant: for his defence to be upheld he must satisfy the Court

that he is entitled to succeed on it ... But there is a third rule, which Voet states in the

1 Christie R H: The Law of Contract in South Africa 5th Ed at p199 also see Gelbuild Contractors CC v Rare Woods South Africa (Pty) Ltd 2002 (1) SA 886 (C).

2 Hoffmann L H & Zeffertt D T: The South African Law of Evidence 4TH Ed at 495.3 1946 AD 946 at 951-952.

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next section as follows:

"He who asserts, proves and not he who denies, since a denial of a fact cannot

naturally be proved provided that it is a fact that is denied and that the denial is

absolute" '.

[26] In the matter of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd4 Corbett, JA said:

‘The use, without proper definition, of the term onus in this context has, I believe, been a

source of some confusion. As was pointed out by DAVIS, A.J.A., in Pillay v Krishna and

Another, 1946 AD 946 at pp. 952 - 3, the word onus has often been used to denote, inter

alia, two distinct concepts: (i) the duty which is cast on the particular litigant, in order to

be successful, of finally satisfying the Court that he is entitled to succeed on his claim or

defence, as the case may be; and (ii) the duty cast upon a litigant to adduce evidence in

order to combat a prima facie case made by his opponent. Only the first of these

concepts represents onus in its true and original sense. In Brand v Minister of Justice

and Another, 1959 (4) SA 712 (AD) at p. 715, OGILVIE THOMPSON, J.A., called it "the

overall onus ". In this sense the onus can never shift from the party upon whom it

originally rested. The second concept may be termed, in order to avoid confusion, the

burden of adducing evidence in rebuttal ("weerleggingslas"). This may shift or be

transferred in the course of the case, depending upon the measure of proof furnished by

the one party or the other. (See also Tregea and Another v Godart and Another, 1939

AD 16 at p. 28; Marine and Trade Insurance Co. Ltd. v Van der Schyff, 1972 (1) SA 26

(AD) at pp. 37 - 9.)’

APPLYING THE LEGAL PRINCIPLES TO THE FACTS

[27] In the present matter the plaintiff claimed and testified that it concluded an

agreement with the defendant in terms of which it sold 4 000 sets of offal at a price of

N$35 per set. A set consisted of one head, four feet, one entrail and one paunch. This

evidence is admitted by the defendant. The plaintiff further testified that the defendant

4 1977 (3) SA 534 (A) at 548.

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removed sets of offal and sold it and thereafter repudiated the agreement allegedly

because the offal was not fit for the purpose for which he acquired it. The plaintiff

accepted the repudiation but held the defendant responsible for the offal removed.

[28] The plaintiff further led evidence to the effect that after it took possession of the

container with the offal which the defendant did not sell and which the defendant

returned it repackaged it and counted the offal left. The difference between the 4000

sets that it initially packed in the container and what it found in the container after

repackaging and recounting was 1 672 heads; 6 688 feet; 1 688 entrails and 552

paunches. The heads and feet were priced at N$15 per one head and four feet giving an

amount N$ 25 080 (for 1 672 heads and 6 688 feet); the entrails were priced at N$8 per

entrail giving an amount of N$ 13 504 (for 1 688 entrails) and the paunches were priced at

N$12 per paunch giving an amount N$ 6 624 (for 552 paunches). The sum total of these

offal amounted to N$ 45 208. The plaintiff then deducted the N$ 20 000 which the

defendant paid leaving a balance of N$ 25 208 and that is the amount it claimed from the

defendant.

[29] The defendant did not contradict that evidence by the plaintiff. The defendant opted

to raise doubt about the chain of custody of the container containing the offal, he testified

that on 04 May 2011 Mr De Waal (the second witness who testified on behalf of the

plaintiff) added some more offal to the container which was sold to the defendant. The

defendant further testified that when Mr De Waal so added the offal to that container he

did so in the absence and without the permission of the defendant. Mr De Waal on the

other hand denies that he added offal to the container containing offal which was sold to

the defendant.

[30] In circumstance such as this where the evidence of the parties is conflicting the

approach to resolve such a conflict was set out in the well-known case of National Employers' General Insurance Co Ltd v Jagers5 where Eksteen, AJP said:

‘[The plaintiff] can only succeed if he satisfies the Court on a preponderance of

probabilities that his version is true and accurate and therefore acceptable, and that the

5 1984 (4) SA 437 (E) at H 440E – G.

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other version advanced by the defendant is therefore false or mistaken and falls to be

rejected. In deciding whether that evidence is true or not the Court will weigh up and test

the plaintiff's allegations against the general probabilities. The estimate of the credibility

of a witness will therefore be inextricably bound up with a consideration of the

probabilities of the case and, if the balance of probabilities favours the plaintiff, then the

Court will accept his version as being probably true. If however the probabilities are

evenly balanced in the sense that they do not favour the plaintiff's case any more than

they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes

him and is satisfied that his evidence is true and that the defendant's version is false.’

[31] In the matter of Motor Vehicle Accidents Fund v Lukatezi Kulubone6 Mtabanengwe, JA outlined the approach he adopts in determining which of two

conflicting versions to belief as the approach advocated by Mr. Justice MacKenna when

he said:

‘I question whether the respect given to our findings of fact based on the demeanour of

the witnesses is always deserved. I doubt my own ability, and sometimes that of other

judges to discern from a witness’s demeanour, or the tone of his voice, whether he is

telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose

statements are for that reason to be respected, or is he taking time to fabricate? Is the

emphatic witness putting on an act to deceive me, or is he speaking from the fullness of

his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight

in the face than if he casts his eyes on the ground perhaps from shyness or a natural

timidity? For my part I rely on these considerations as little as I can help... [This] is how I

go about the business of finding facts. I start from the undisputed facts, which both sides

accept. I add to them such other facts as seem very likely to be true, as for example,

those recorded in contemporary documents or spoken to by independent witnesses like

the policeman giving evidence in a running down case about the marks on the road. I

judge a witness to be unreliable, if his evidence is, in any serious respect, inconsistent

with those undisputed or indisputable facts, or of course if he contradicts himself on

important points. I rely as little as possible on such deceptive matters as his demeanour.

When I have done my best to separate the truth from the false by these more or less 6 An unreported judgment of the Supreme Court of Namibia Case No. SA 13/2008 (delivered on 05

February 2009) at para [51].

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objective tests I say which story seems to me the more probable, the plaintiff’s or the

defendant’s’. {My underlining for emphasis}.

[32] In the present matter the undisputed facts which both the plaintiff and defendant

accepted are amongst others that during the period October 2010 to December 2011 the

plaintiff only transported offal sets from Aranos to Windhoek on 3 different occasions

namely 31 March 2011, 18 April 2011 and 4 May 2011. That between 04 May 2011 and

20 September 2011 no one else, except the defendant, had access to the container which

contained the offal sold by plaintiff to the defendant.

[33] According to the defendant’s evidence the sequence of events was as follows; the

defendant phoned Mr Steynberg and concluded the agreement, he thereafter obtained the

keys, of the container containing the 400 sets of offal which he bought, from Mr Heiko of

Container World, he removed some of the offal and sold it and after a few days he

discovered that the offal was not fit for the purpose for which he bought it; he returned the

offal and paid the plaintiff (the payment was made on 07 May 2011). After he paid plaintiff,

Mr De Wall delivered some more offal to the container containing the offal which he

bought.

[34] The documentary evidence which I was provided with indicate that Mr Daantjie

delivered the offal on 04 May 2011 (this corresponds with the last batch of offal delivered

by the plaintiff to Container World) and the defendant paid the N$ 20 000 to the plaintiff on

07 May 2011. It therefore follows that by the 04 May 2011 when Mr De Waal had brought

the final batch of offal to Container World the defendant had not yet returned the offal

which he alleged was unfit for the purpose for which he bought it. It is therefore

improbable that Mr De Waal delivered more offal to the container after the 07 May 2011. I

am therefore of the view that both Mr Daantjie and the defendant are mistaken as to the

events of 04 May 2011 and I accept the plaintiff’s evidence that Mr De Waal did not add or

remove any offal to the container which contained the offal bought by the defendant.

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[35] Since the defendant did not lead evidence as to how many sets or individual pieces

of offal he has removed from the container or how many sets or individual pieces of offal

he sold or how many sets or individual pieces of offal he has returned to the container, I

am of the view that the defendant has failed to discharge the the duty cast upon him to

adduce evidence in order to combat a prima facie case made by the plaintiff. It follows

that the plaintiff must succeed in its claim. Finally, I come to the question of costs. There

are no reasons that have been advanced to me why the general rule that costs follow the

event should not apply in this matter. I am thus of the view that the plaintiff is undoubtedly

entitled to its costs.

[36] I accordingly, make the following order:

1. I grant judgment in favour of the plaintiff and the defendant is ordered to pay to

the plaintiff the amount N$ 25 208.00.

2. The defendant is furthermore ordered to pay interest on the amount N$ 25

208.00 at the rate of 20% per annum which is calculated from 17 April 2015 to

the date of payment both days included.

3. The defendant must pay the plaintiff’s costs at a party and party scale, which

costs include the costs of one instructing and one instructed counsel.

---------------------------------SFI Ueitele

Judge

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APPEARANCES

PLAINTIFF: J-PR JONES

Instructed by Dr. Weder, Kauta & Hoveka

DEFENDANT: Mr F Erasmus

Of Francois Erasmus & Partners