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IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

NATAL PROVINCIAL DIVISION

Case No. 7669/04

In the matter between

N3 TOLL CONCESSIONS (PTY) LTD Plaintiff

and

NIRGHIN’S TRANSPORT CORPORATION CC Defendant

PRESENTLY KNOWN AS NIRGHIN’S TRANSPORT

PROPRIETARY LIMITED

AMENDED JUDGMENT

____________________________________________________________

Delivered:

11 December 2007

TSHABALALA JP

Background

[1] This is a claim for the amount of R205 227, 20 with interest from the defendant, arising from a representation made by the defendant in an application for toll concession. The defendant represented to the plaintiff that its principal place of business was at 4 Link Road, Ladysmith, KwaZulu-Natal. Prior to a conversion of the close corporation into a company its sole member was Mr Dhewenthra Nirghin (hereinafter referred to as Mr Nirghin), and who is also the sole shareholder and director of the company. The plaintiff claims that it is a victim of fraudulent misrepresentation made to it by the defendant. The gravamen of the plaintiff's complaint is that it was falsely led to believe that the defendant’s principal place of business was at 4 Link Road, Ladysmith.

The issue

[2] Before the matter was argued before me a pre-trial conference was convened by the parties on 7 December 2005 (Exhibit A). In this conference fundamental issues in the case were identified, namely: whether the defendant was based for its trucking operation at Ladysmith during the period February 2003 to July 2003; and the issue of the quantum of plaintiff’s claim. Both issues had to be argued at the same time. However, while plaintiff was leading its evidence through Mr Fourie, an expert witness, the defendant admitted the computation of the total discount of R205 227, 20 for a period from 1 July 2001 to 19 June 2003, in the event of the plaintiff succeeding in proving that the defendant is liable (Exhibit J) (transcript vol 3, page 2, line 20 to page 3, line 3 & page 224). It was uncontroverted evidence of the plaintiff that the defendant received a discount on 1 July 2001. The defendant admitted the evidence of Mr. Fourie. The defendant made an admission in this court that the card numbers recorded against registration numbers of motor vehicles are defendant’s. Consequently, as the issue of quantum fell away, only one issue remained to be determined. I therefore proceed to decide the case on the merits.

Relevant Facts

[3] The plaintiff (N3 Toll Concession (Pty) Ltd) is a company with limited liability duly incorporated in accordance with the laws of the Republic of South Africa, with its registered address at 2^nd Floor Acacia Block, Pellmeadow Office Park, 60 Calvin Drive, Bedforview, Johannesburg, Gauteng. The plaintiff has its principal place of business at Tugela Toll Plaza N3, KwaZulu-Natal. The plaintiff operates, controls, and manages the De Hoek, Wilge, Tugela, Tugela East, Bergville, Mooi Treverton and Mooi Toll Plazas including relevant ramps in accordance with section 28 of South African National Roads Agency Limited and National Roads Act 7 of 1998 (hereinafter referred to as the “Act”). In terms of sections 27 and 28 of the Act the plaintiff is entitled to levy and collect toll tariffs from motor vehicles travelling through these plazas.

[4] In terms of the Act the plaintiff has to allow discounts on the toll tariffs for bona fide residents, with registered motor vehicles, of designated magisterial districts, which include Ladysmith. Moreover the businesses whose operations are based within the designated magisterial districts are allowed discounts on the toll tariffs. Toll concession is part of the contract agreement between the plaintiff and the South African National Roads Agency, that the plaintiff will provide toll tariff discounts to three designated areas that affect ‘local commuter’ (residents of neighbouring towns through the toll route, that are affected by tolls in terms of the tariff). A resident of Ladysmith would be entitled to discounts on the following plazas and ramps, namely: Tugela East, Tugela Mainline, Bergville Ramps, Mooi Treverton, Mooi North Ramp, Mooi Mainline, Mooi South Ramp.

[5] The defendant (Nirghin’s Transport Corporation CC) is a close corporation incorporated in terms of the laws of the Republic of South Africa, and which on 24 February 2004 was converted into a company, namely, Nirghin’s Transport (Pty) Ltd, a company with limited liability duly registered in accordance with the laws of the Republic of South Africa. The defendant’s registered office address is at 34 Centenary Road, Ladysmith. The defendant operated a depot at 51 Sea Cow Lake Drive, Durban (transcript vol 3 pages 127). The defendant operates a trucking business. During the period February 2003 and July 2003 defendant had made an application to the plaintiff for concession. The defendant admitted the plaintiff’s locus standi in judicio.

Relevant provisions

[6] The plaintiff is a functionary of the Act by virtue of the ‘Concession Contract’ (Exhibit B(a)) as between the South African National Roads Agency (hereinafter referred to as the “Agency”) and plaintiff. The plaintiff, inter alia, was authorised to levy and collect toll fees. Section 28 of the Act provides that:

“28     Operation of toll roads and levying of toll by authorised

persons

1. Despite section 27, the Agency may enter into an agreement with any person in terms of which that person, for the period and in accordance with the terms and conditions of the agreement, is authorised-

1. to operate, manage, control and maintain a national road or portion thereof which is a toll road in terms of section 27 or to operate, manage and control a toll plaza at any toll road; or

2. to finance, plan, design, construct, maintain or rehabilitate such a national road or such a portion of a national road and to operate, manage and control it as a toll road.

2. That person (in this section called the authorised person) will be entitled, subject to subsections (3) and (4)-

1. to levy and collect toll on behalf of the Agency or for own account (as may be provided for in the agreement)-

          (i)     on the toll road specified in the agreement;

          (ii)     during the period so specified; and

3. in accordance with the provisions of the agreement only; and

(b) in the circumstances mentioned in subsection (1) (b) , to construct or erect, at own cost, a toll plaza and any facilities connected therewith for the purpose of levying and collecting toll.

3. Where the agreement provides for any of the matters mentioned in section 27 (1) (b) , (c) , (d) , (e) and (f) (ii), the authorised person will be subject to the duties imposed on the Agency by that section in all respects as if the authorised person were the Agency.

4. The amount of the toll that may be levied by an authorised person as well as any rebate on that amount or any increase or reduction thereof, will be determined in the manner provided for in section 27 (3), which section will apply, reading in the changes necessary in the context, and, if applicable, the changes necessitated by virtue of the agreement between the Agency and the authorised person.”

[7] In accordance with the provision of the ‘Concession Contract’, the Agency authorised and required the plaintiff to provide discounts to certain categories of road users utilising the N3 Toll Road. Clause 6.2 is relevant to tolls and discounts applicable to such road users. Clause 6.2 provides:

6.2 Discount Categories

… Discount 1

Motor Vehicles registered to bona fide residents of the magisterial districts of Harrismith, Van Reenen, Ladysmith, Colenso and Bergville will be entitled to this discount.

… Discount 3

Motor Vehicles registered to bona fide residents of the magisterial districts of Estcourt, Ladysmith, Colenso, Weenen and Klip River will be entitled to this discount.” (My emphasis)

[8] Clause 10 of the ‘concession contract’ provides that:

“10. Discounts

The Concessionaire may, at its discretion, implement further monthly commuter or frequent user discount systems, tokens, or such other promotional and marketing programs as it deems necessary provided that any discounts may only be implemented after such discounts have been reviewed by the Agency and published in accordance with Clause 15. For the avoidance of doubt, the Agency will not be liable for any consequences resulting from the introduction or implementation of any discounting systems or structure introduced by the Concessionaire.” (My emphasis)

[9] Clause 15 of ‘concession contract’ provides that:

“15. Publication of Toll Rates

The Agency shall conform to the statutory requirements with respect to setting Toll Rates and shall make representations to the Relevant Authority for the publication of the Toll Rates in the relevant national circulation newspaper or official government gazette, or as may otherwise be required by law in order to give full legal effect to the Toll Rates together with VAT payable thereon, at least 14 (fourteen) days prior to the Adjustment Date.”

[10] Pursuant to the aforementioned provisions the plaintiff developed and implemented a procedural system whereby road users making use of N3 Toll Road who qualified for discounts were entitled, by means of an ‘Application Form for Concession Cards’ to apply to plaintiff for the relevant discounts.

Law

[11] The plaintiff has made reference to fraudulent alternatively negligent misrepresentation. In the case of Standard Bank of South Africa Ltd v Coetsee 1981 (1) SA 1131 (A), Viljoen JA, at page 1144G-H, said:

“The nature of the action instituted by Coetsee and the requisites to be proved are set out by McKerron Delict 7th ed at 210 as follows:

"The wrong or fraudulent misrepresentation consists in the act of making a wilfully false representation to another with intent that he shall act in reliance on it, and with the result that he does so act and suffers harm in consequence."

In Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A) the following dictum from the judgment of Steyn CJ appears at page 441C - D:

"The plaintiff does not base its case upon a representation negligently made, but upon wilful falsehood, i.e. an intentional wrongful act on the part of the defendant. What it has to allege and prove, therefore, is that the defendant has, by word or conduct or both, made a false representation, that it knew the representation to be false, that the plaintiff has lost or will lose customers, that the false representation is the cause thereof, and that the defendant intended to cause the plaintiff that loss by the false presentation."”

[12] In his dictum at page1145A-B, Viljoen J said:

“In my view it is not necessary, generally, in a delictual action based on a fraudulent misrepresentation that it should be alleged and proved that the representor intended to occasion the loss which the representee suffered. All that is necessary to allege and prove is that the representor made a false representation which he intended, whatever his motive might have been, the representee to act upon. The loss or damage which the representee suffered need not have been intended by the representor, it must simply have followed as a result of the representee acting upon the false representation.”

[13] At page1145D-E, Viljoen JA further succinctly summarised the essentials as follows:

    “(a)     a representation,

    (b)     which is, to the knowledge of the representor, false,

    (c)     which the representor intended the representee to act upon,

  (d)     which induced the representee so to act, and

    (e)     that the representee suffered damage as a result.”

[14] In the case of Standard Bank of South Africa Ltd v Coetsee a promissory note of R170 000, 00 was made and presented as a guarantee of debts owed to respondent. Upon presentation for payment it was dishonoured by non-payment. In the Court a quo respondent instituted an action claiming damages from the appellant as a result of certain fraudulent misrepresentations by Hart in his capacity as manager of the appellant and which induced Coetsee to enter into the contract.

[15] In Standard Bank of South Africa Ltd v Supa Quick Auto Centre 2006 (4) SA 65 (N), as postulated by Viljoen JA, my brother Swain J agreed that these were essentials for a case of fraudulent misrepresentation, and I believe the requirements are the correct ones. The plaintiff in an action for fraudulent misrepresentation must prove its case on the balance of probabilities in relation to the aforementioned requisites to succeed.

[16] In Bayer South Africa (Pty) Ltd v Frost [1991] ZASCA 85; 1991 (4) SA 559 (A), at pages 570I - 571A, a representation was made by appellant to the respondent that it had tested a new herbicide called Sting. The herbicide was sprayed from a helicopter and it was represented that it would not be harmful to crops adjacent to vineyards. Despite this herbicide caused damage to crops and respondent sued appellant for damages arising from negligent misrepresentation. Corbett CJ formulated the following questions to be answered in order to establish whether there was negligent misrepresentation:

“(1) whether appellant's representatives made the statements attributed to them in respondent's pleadings;

(2) whether these statements were materially false;

(3) whether there rested upon appellant's representatives a legal duty to take reasonable steps to ensure that the statements made were correct (this being pertinent to the question of unlawfulness);

(4) whether appellant's representatives failed to carry out this legal duty, i.e. acted negligently in the making of the statements; and

(5) if appellant's representatives did negligently fail in the carrying out of the legal duty referred to in (3) above, whether such failure caused respondent's loss.”

Bayer South Africa(Pty)Ltd v Frost was followed in Alzu Ondernemings (Edms) Bpk v Agricultural and Rural Development Corporation and another [2001] 2 All SA 368 (T).

[17] Furthermore in Standard Bank of South Africa Ltd v OK Bazaars (1929) Ltd 2000 (4) SA 382 (W), Gautschi AJ, at 393E-G, said the plaintiff would have to establish the following elements:

“(1)     a statement,

    (2)     which was false,

(3)  that the misstatement was material, in the sense that it would have influenced or induced a reasonable man to act or rely thereon,

(4)     that the defendant intended the plaintiff, or a person in the position of the plaintiff, to act or rely thereon, and

(5) that the plaintiff in fact acted or relied thereon, i.e. was in fact induced,”

[18] The Court in Standard Bank of South Africa Ltd v OK Bazaars said that the elements do not form part of an enquiry into unlawfulness.

Evidence

[19] In the present case it appears apparent that the whole purpose of concessions is that people residing in Ladysmith or operating a business in Ladysmith should not suffer prejudicial effect so near the N3 toll route.

[20] The issue I have to determine is whether the defendant was based for its trucking operation at Ladysmith during the period February 2003 to July 2003. In the event that it is found that the defendant was based for its trucking operation during the period February 2003 to July 2003 at Ladysmith, then it escapes liability. I shall not deal with question of authenticity, originality or completeness of application forms because they were not put properly before this court. In addition both parties agreed during the aforementioned pre-trial conference that the documents are what they purport to be, and agreement related to plaintiff’s trial bundle transcript vol. 1.

Plaintiff’s case

[21] As per paragraphs 3 and 4 of plaintiff’s amended particulars of claim, the plaintiff avers that during or about 10 June 2001 the defendant made an application for concession cards and represented to the plaintiff that its principal place of business was at 4 Link Road, Ladysmith, KwaZulu-Natal. The plaintiff further avers that such representation was repeated about June 2003. The defendant made such an application to receive discount on toll tariffs from the plaintiff. Moreover the plaintiff avers that when making such representation, the defendant knew it to be false in that the defendant’s principal place of business was at 51 Sea Cow Lake Drive, Durban, KwaZulu-Natal.

[22] Mr S Naidoo, the plaintiff’s main witness, testified that a resident of Ladysmith who has his motor vehicles registered in Ladysmith but who operates out of Durban will not qualify for a toll concession (transcript vol 1 page 83). He further testified that for a body corporate to qualify as a bona fide resident its physical operation (main place of business) and main principal operating address had to be submitted with application form (transcript vol 1 page 84). Under cross-examination Mr S Naidoo testified that principal place of business is an interpretation of ‘bona fide residence’ (transcript vol 2 page 197). Mr S Naidoo testified that registered office of a body corporate at Ladysmith did not qualify it for toll concessions. This testimony was corroborated by Mr Le Roux that defendant represented that its main activity was in Ladysmith, whilst that was false.

[23] Under cross-examination he testified that upon application for toll concession there was no reason to doubt information supplied by defendant that it was not operating at 4 Link Road, (transcript vol 2 page 86-96), and because the motor vehicles had NKR registration licences plaintiff in good faith accepted the address and that defendant was resident in Ladysmith at face value (transcript vol 2 page 201 and page 415). He testified that the application was made on 10 June 2001. When they had received an audited report, Mr S Naidoo testified that there were ten cases of misuse of concession privileges. As a result forensic investigations commenced early in 2003.

[24] Mr S Naidoo testified that before mid 2003 he visited 4 Link Road, Ladysmith and found that defendant did not operate its trucking business there. This evidence was corroborated by Mr Van Wijk who testified that there were no signs of road damage as it would have been the case where interlink and superlink trucks had frequently used Link Road. This evidence was corroborated further by Mr S Naidoo under cross-examination that there was no physical indication that defendant operated out of 4 Link Road (transcript vol 2 page 197). He also testified that there was no evidence of a wash bay at the premises on 4 Link Road. Mr Van Wijk’s testimony was corroborated, inter alia, by photographs indicating that the business at 4 Link Road was sand and stone supply owned by Kimraj Nirghin and cartage business (transcript vol 1 pages 140-149). It was Mr S Naidoo’s unchallenged testimony that on the side of horses and rear of trailers owned by defendant was an inscription of address at 51 Sea Cow Lake, Durban. Mr S Naidoo testified that after investigations concession privileges to defendant were terminated on 19 June 2003. This testimony was corroborated by Mr Fourie (transcript vol 2 page 285). The date of termination is common cause between the parties. Mr Pillay testified that 4 Link Road is owned by Kimraj Nirghin who operates sand and stone business thereon (transcript vol 1 pages 166-169). Mr S Naidoo described a lease agreement of 4 Link Road, Ladysmith between Kimraj and Shamadevi Nirghin and Mr Nirghin (Exhibit B pages 317-321) as:

“A lease of convenience specifically drawn up to support Nirghin Transport Corporation CC for their application of concessions. The document is incomplete. There is no date, there’s half signatures. I think the document is a sham.” (Transcript vol 1 page 56.)

[25] Under cross-examination he maintained that the lease agreement was a lease of convenience (transcript vol 2 page 71). Mr Nirghin also conceded that this lease agreement was one of convenience.

[26] Mr Le Roux testified that upon the representation by defendant that it had its main business operation in Ladysmith, it represented to plaintiff that it qualified for regional discount 1 and regional discount 3.

[27] Mr Fourie testified, as time delays by defendant’s motor vehicles were spent on south of Marianhill toll plaza, that the base of defendant was southern side of Marianhill toll plaza (transcript vol 2 page 279 - 293). Mr Fourie testified that during vacation period all defendant’s motor vehicles were on the southern side of the Marianhill toll plaza for a minimum period of 15 days (transcript vol 2 page 294). He testified that, in the present case, he understood business address to mean the place of business where everything was managed and where trucks would come in and out.

Respondent’s case

[28] Prior to March 2002 the defendant was situated at 39 Centenary Road, Ladysmith. In March/April 2002 Mr Nirghin averred that he moved the business to 4 Link Road. (Transcript vol 3 page 119). Defendant used 4 Link Road as a hub of administration (transcript vol 3 128). The motor vehicles never arrived at 4 Link Road to depot, load, offload, or be serviced (transcript vol 3 page 131 & p147). The motor vehicles very seldom used 4 Link Road (transcript vol 3 page 132). Defendant deliberately put 2002 in a lease agreement of 4 Link Road instead of 2003 (transcript vol 3 page 134).

[29] Evidence was led on behalf of defendant that between 2002 and 2005 Mr Nirghin and his family were residing in Durban, and his children were also schooled in Durban (transcript vol 3 page 135). He still spent some days in Ladysmith at his father’s or brother’s house (transcript vol 3 page 151). Since his customers are based in Durban and Johannesburg, Mr Nirghin moved to Durban to be close to them (transcript vol 3 pages 137 & 139). Subsequent to mid 2002 Mr Nirghin never had his own residence in Ladysmith (transcript vol 3 page 140). After mid 2002 the only residence Mr Nirghin had was at 68 Deane Road, Durban (transcript vol 3 page 141). He left 4 Link Road about July 2003 and from then he was Durban based (transcript vol 3 page 144). In 2004 the motor vehicles were de-registered in Ladysmith and registered in Durban (transcript vol 3 page 148). During mid 2001 Mr Nirghin was residing in both Durban and Ladysmith (transcript vol 3 page 51).

[30] Mr Nirghin conceded that residence of a person is where a person frequently occupies particular premises and that premises becomes regarded as a residence (transcript vol 3 page 161). Mr Nirghin conceded that, irrespective of where the registered office of the company is, it is where the business is operated that you regard as the base of the business, and as the address of the business (transcript vol 3 page 163). In the lease agreement dated 22 October 2001 with eThekwini Municipality (Exhibit D) Mr Nirghin used 68 Deane Road, Glenmore as his domicilium citandi et executandi, which is a Durban address. Mr. Nirghin conceded that Rockdale Park Office was close to his place of business at Sea Cow Lake (transcript vol 3 page 192).

[31] Mr Nirghin made the following concessions relating to the office administration in Durban:

1. He collected post at Rockdale Park;

2. He received post at 51 Sea Cow Lake;

3. He did banking in, inter alia, Edwin Swales, Durban Port, Durban, Glenmore;

4. He met with clients, read taco graph, inspected trucks and checked on employees in Durban; and

5. The defendant had a telephone and fax machine number at 51 Sea Cow Lake (transcript vol 3 page 214).

[32] Mr Nirghin testified that 51 Sea Cow Lake Road was a satellite depot in 2001 and later became a depot but was at no stage an office. Mr Nirghin’s office at 4 Link Road, Ladysmith did not have a telephone, nor fax machine number, but instead he relied on his cellphone, Kim Nirghin’s telephone number to receive messages from clients. Mr Nirghin conceded that he did not do anything when the plaintiff ceased defendant’s toll concessions (transcript vol 3 pages 223-224). Mr Nirghin conceded that he took a chance and was ‘caught up and gave up’ (transcript vol 3 p 225). Mr Nirghin also conceded that he made up false documents, inter alia lease agreement and a letterhead, to prove that the defendant operated in Ladysmith (transcript vol 3 page 234). Mr Nirghin conceded that the defendant made an application for toll concession before July 2001 (transcript vol 3 page 251), and that there was no wash-bay at 4 Link Road (transcript vol 3 page 273). Mr Oelofse conceded that a trucking operator was responsible for filling in application forms and the Toll Company had nothing to do with it. He further conceded that Toll Company would accept that representation in good faith when granting concessions.

Submissions on behalf of the plaintiff

[33] Mr Padayachee submitted on behalf of the plaintiff that discounts were allowed so as not to create economic hardship and distress for individuals and companies stationed, based or resident in small towns that would be affected by Toll Stations where, prior to the introduction of Toll Stations, these persons used the roads without paying therefor. It was submitted that a lease agreement of 4 Link Road, Ladysmith and business letter-head which bore a telephone number unrelated to defendant close corporation was a matter of convenience to mislead plaintiff that defendant did operate out of 4 Link Road. Mr Padayachee submitted that defendant did not have office at 4 Link Road but at 51 Sea Cow Lake, Durban. The defendant resided and operated its trucking business out of Durban as from June 2001 alternatively August 2001. It was submitted by mere fact that defendant did not challenge plaintiff upon terminating concession privileges due to alleged fraud, it could be safely assumed that defendant did not believe in the truthfulness of its own evidence.

Submissions on behalf of the respondent

[34] Mr Naidoo on behalf of the respondent submitted that there is no evidence of a misrepresentation because the plaintiff’s case does not rely on the original documents in order to prove the contents of the application in 2001. Mr Naidoo relied on Standard Merchant Bank Limited v Creaser 1982 (4) SA 671 (W) and Hoffman and Zeffert South African Law of Evidence (year) in submitting that no evidence is ordinarily admissible to prove the contents of a document except the original document itself. It was submitted that no application for concession cards was completed in 2001. It was also submitted that defendant prior to March 2002 was situated at 39 Centenary Road, and was only situated at 4 Link Road from March 2002.

[35] It was submitted that in the application form no definition of a close corporation’s ‘bona fide’ residence was provided and therefore regard should be had to the registered office of the defendant which is at 34 Centenary Road, Ladysmith.

Evaluation

[36] In several respects the evidence for the plaintiff and the defendant is mutually destructive. Mr S Naidoo testified on behalf of the plaintiff that the defendant did its trucking operation and administration out of Durban, whilst Mr Nirghin testified on behalf of defendant that it did its trucking operation and administration out of Ladysmith. Mr Nirghin conceded that defendant’s motor vehicles visited 4 Link Road, Ladysmith very seldom.

[37] In National Employers’ General Insurance v Jacobs1 1984 (4) SA 437 (E), Eksteen AJP (as he then was) said at 440D-G:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he 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 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.”

[38] Defendant conceded that it made application to defendant for concession cards in 2001. It is defendant’s submission that prior to March 2002 it was at 39 Centenary Road. Plaintiff, through Mr Pillay, led evidence that 39 Centenary Road was vacant as from January 2002. Mr Pillay is an elderly man who is an independent witness, and defendant conceded that he held nothing against it. In my opinion it is unlikely that Mr Pillay lied. I find the testimony of Mr Pillay credible. In January 2002 defendant was not situated at 39 Centenary Road, Ladysmith.

[39] The plaintiff submits that on 10 June 2001 defendant represented to it that it was having a principal address and operating trucking business at 4 Link Road. Furthermore plaintiff submits that defendant knew that such representation was false and it did not operate trucking business at 4 Link Road. It is the evidence of Mr Naidoo that defendant did not operate its main activity of its trucking business at 4 Link Road, but at 51 Sea Cow Lake, Durban from June 2001 alternatively August 2001. Such evidence was corroborated by a number of witnesses on behalf of plaintiff including Mr Van Wijk and Mr Fourie.

[40] Further, the defendant conceded that it collected post at Rockdale Post Office; received post at 51 Sea Cow Lake; did banking in, inter alia, Edwin Swales, Durban Port, Durban, Glenmore, met with clients, read taco graph, inspected trucks, checked on employees in Durban; had a telephone and fax machine number at 51 Sea Cow Lake; irrespective of where the registered office of the company is, it is where the business is operated that you regard as the base of the business, as the address of the business. The defendant failed to lead evidence to show that it operated out of Ladysmith. Instead when the defendant’s application for renewal was refused it concocted a number of documents including letter-head and lease agreement to mislead plaintiff that it was a ‘bona fide’ resident of Ladysmith.

[41] Upon first application plaintiff accepted in good faith the principal business address of defendant as 4 Link Road, Ladysmith at face value. It was only after an audit was done that there were suspicions of misuse of concession privileges which led to forensic investigations against, inter alia, defendant. I also find the evidence of Mr Fourie that the defendant’s motor vehicles spent most of vacation period in Durban to be credible. In my opinion it is unlikely that between the period of February 2003 and July 2003 Mr Nirghin operated his business at 4 Link Road.

[42] With regard to application form for concession card I refer to Welz and Another v Hall and Others 1996 (4) SA 1073 (C) submitted by defendant. At 1079C-E, Conradie J observed that:

‘As far as the best evidence rule is concerned, it is a rule which applies nowadays only in the context of documents and then only when the content of a document is directly in issue. It does not apply where the document serves to record a fact capable of being proved outside the document. It provides that the original of a document is the best evidence of its contents. The rule is a very ancient one. It goes back to the Dark Ages, well perhaps the twilight days, before faxes and photocopying machines, when making copies was difficult and such copies as were made often inaccurate. Under those circumstances Courts, naturally, insisted upon production of the original document as being the most reliable evidence of its contents. Nowadays, a Court can be asked to permit the use of a copy if the original of a document is not available.’

[43] The defendant conceded that he made application for concession cards in 2001. Therefore the application forms were not directly in issue in the present case. In the event that the original documents cannot be found copies are permitted. I therefore dismiss defendant’s contention that plaintiff cannot prove misrepresentation in the absence of original application forms.

Conclusion

[44] On the facts of this case and evidence led, I am of the opinion that the probabilities are overwhelmingly in favour of the case that defendant did not operate the trucking business in Ladysmith at all. The defendant falsely represented to plaintiff by filling in the address at 4 Link Road, Ladysmith in the application forms, and this misrepresentation was material in that the plaintiff relied on it. The defendant intended the plaintiff to rely on this representation in allowing concession. Since the defendant did not operate in Ladysmith at all, it should have paid the full toll despite concessions being allowed. Consequently the plaintiff suffered loss by allowing concessions to defendant which were not due.

Quantum

[45] In the course of proceedings the defendant made an admission to the affect that in the event of the plaintiff succeeding in proving that defendant is liable and indebted to plaintiff and discharging the onus in terms of the particulars of claim, then defendant accepts computation of the loss suffered in the sum of R205 227, 20 for a period from 1 July 2001 to 19 June 2003 and as set out in the report of Mr Fourie (Exhibit B volume 2). The plaintiff succeeded in proving defendant’s liability and indebtedness to plaintiff.

Costs

[46] On 23 August 2007 plaintiff applied for an order amending the issue of costs from that of party and party to that of attorney and own client. Defendant opposed application for amendment. Mr Naidoo submitted, inter alia, that defendant resided in Ladysmith and therefore an amendment was inappropriate. I have already found that defendant did not reside in Ladysmith between the period February 2003 and July 2003. I use my discretion as trial judge to grant order for leave to amend issue of costs.

[47] The plaintiff seeks an order that the defendant pays the costs on the scale as between attorney and own client. As to the costs, there seems to me to be ample justification for an award on the attorney and client scale. The defendant is guilty of using false information in applying for concession. Its initial defence of lack of locus standi in judicio which was later surrendered was not bona fide and its denials of the plaintiff’s allegations were dishonest in material respects. Whilst the defendant’s conduct is of such a nature that a special costs order ought to be made, the circumstances are not such that attorney and own client costs ought to be ordered. In the circumstances an award of attorney and client costs is appropriate.

The Order

[48] It is ordered that:

1. The defendant was not based for its trucking operation at Ladysmith during the period February 2003 to July 2003.

2. The defendant is liable to the plaintiff for the amount of R205 227, 20 for the period from 1 July 2001 to 19 June 2003 with interest thereon at 15.5% from date of service of summons.

3. The application to amend the issue of costs from that of party and party to that of attorney and own client is granted.

4. The defendant pay costs of the action on the scale as between attorney and client, such costs to include the qualifying fees of expert witnesses Christo Fourie and Miles James Le Roux, as well as the cost of the following necessary witnesses.

1. Jianyue Meng

2. Pooniaseelan Naidoo

3. Samaras Manicum Pillay

4. Marry-Anne Renaud

5. Irene Lynette La Grange

6. Adrianus Cornelius van der Meer.

_______________

TSHABALALA JP

Dates of Hearing: 24^th to 26^th April 2006

16^th to 20^th April 2007

20^th to 23^rd August 2007

27 September 2007

Date of Judgment: 11 December 2007

Counsel for Plaintiff: Mr. R. Padayachee, SC

Instructed by: Ngcobo, Poyo & Diedricks Inc

Counsel for Defendant: Mr. V.M. Naidoo

Instructed by: Sergie Brimiah & Associates

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