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[2016] ZAGPJHC 217
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South African Bank of Athens v 24 Hour Cash CC (A3027/2016) [2016] ZAGPJHC 217 (11 August 2016)
11REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3027/2016
DATE:
11 AUGUST 2016
In the
matter between:
The
South African Bank of
Athens
.........................................................................................
Appellant
And
24
Hour Cash
CC
...................................................................................................................
Respondent
Judgment
Van der Linde, J:
Introduction
[1]
This
is a case about a longstanding
customer of
good
credit who walks into its bank to get a guarantee that
it
could present to its landlord as rental security.
The bank duly issued the guarantee a few days later. In due time the
guarantee
was no longer needed. The customer told the bank this.
[2]
However
,
and this is where the dispute comes in,
the
customer also said that
it
wanted back the
money that it had paid in cash
to the bank
as
security for the guarantee to be issued. The bank said the customer
never paid
any
cash, and that the guarantee
was issued on the basis of the customer's good credit with the bank.
The
central factual
issue before the court
a quo, and on appeal before this court, is where in this tale the
probabilities lie.
[3]
The
customer's version is that its member, Mr Gouskos, walked into the
bank, spoke to the manager a Mr Sardinah,
and
got
told by him to deposit the required amount into a certain account.
This Mr Goukos did, gave the deposit slip to Mr Sardinah,
and was
told to collect he guarantee a few days later. When he collected the
guarantee
it
was not signed by Mr Sardinah
but by someone else purporting to be the bank manager.
[4]
Some
three months later, when the guarantee had to be increased by a
marginal amount, the process repeated itself, the increased
guarantee
being R67 670. The same individuals were involved then.
This
time the guarantee was in fact signed by Mr Sardinah in his capacity
as bank manager.
[5]
Also,
it should be mentioned that five years earlier the guarantee was
first established, but here the facts are different.
The
guarantee was for some R16 135, no cash was deposited, and Mr
Sardinah was not involved. The cash was simply transferred from
the
customer's current account to a secure call account, on the back of
which the initial guarantee was issued. As pointed
out above,
on no version is this what happened in December 2008 and March 2009.
The
factual dispute
[6]
In
civil cases the measure of proof is a preponderance of probabilities.
When the two competing versions intersect the question
of credibility
comes into play as well. Take the present matter. The narrow ambit of
the facts is whether or not the customer was
asked to deposit R51 235
on the December 2008 occasion. It is as narrow as that, because it
stands fast that in December 2008 the
customer asked for and was
granted the guarantee
,
increased by R51
235.
Two derivative factual
issues
are contested.
[7]
First,
that Mr Sardinah was involved. The bank contested this, saying that
as a hard fact Mr Sardinah only came to the bank the
next year.
And
it would seem that, as insistent as Mr Gouskos was on the point that
he dealt with Mr Sardinah, the latter was only appointed
bank manager
at this branch in 2009. Does it follow, as was argued by the bank,
that Mr Gouskos’ version must be rejected?
[8]
The
second
subsidiary
issue was whether the
guarantee was for cash or for credit. The customer says it was for
cash, and that he was given a specific
account number, which was not
his current account number, into which was to deposit the money,
which he duly did. The bank says
that they have no record at all of
such a deposit having been made, and so they say the guarantee must
have been issued on the
basis of the customer's good credit alone,
unusual as this was. Again, does it follow,
as was argued by
the bank, that Mr Gouskos’ version must be rejected?
The
approach to assessing evidence
[9]
We return to these questions after having first discussed the correct
approach to the assessment of the evidence. A helpful discussion
of
this topic appears in the judgment of Van der Spuy, AJ in Selamolele
v Makhado,
[1]
:
“
The onus of proof and
the legal requirements as to the discharge thereof
It is common cause that plaintiff
bears the overall onus of proof, ie he must prove his version that he
was pushed from behind and
did not fall fortuitously backwards
after a scuffle with defendant. It may be that defendant has some
duty of adducing evidence
in support of the latter version but the
onus of proof in the overall case never shifts and remains on
plaintiff. See Pillay v
Krishna 1946 AD 946 at 952-3. A disagreement
arose between counsel for the two parties, ie Mr Botha for plaintiff
and Mr Pieterse
for defendant, concerning that approach which I
should adopt when determining whether plaintiff has discharged the
onus of proving
his version on a balance - preponderance - of
probabilities. The disagreement arises from the well-known statement
of the law in
National Employers' Mutual General Insurance
Association v Gany
1931 AD 187
at 199:
'Where there are two stories
mutually destructive, before the onus is discharged, the Court must
be satisfied that the story of
the litigant upon whom the onus rests
is true and the other false.'
Mr Pieterse submits that this case
presents 'a classic example of two mutually destructive versions. The
one excludes the other.'
With that submission I agree. Mr Pieterse
then quotes cases in which the dicta in Gany's case have been
interpreted, ie Koster
Koöperatiewe Landboumaatskappy Bpk v
Suid-Afrikaanse Spoorweë en Hawens
1974 (4) SA 420
(T) at
426 and African Eagle Life Assurance Co Ltd v Cainer
1980 (2) SA
234
(W) at 237 - 8, the latter case being cited with apparent
approval but without comment in AA Mutual Insurance Association Ltd
v
Manjani
1982 (1) SA 790
(A) at 793G - H. He then submits
that where there are probabilities, inherent or otherwise, the Court
decides on the balance -
preponderance - of probabilities. At the end
of the day, so he contends:
"The question to be decided
will always be: which of the versions of the particular witnesses is
more probable considering
all the evidence that was led by plaintiff
and defendant and all their respective witnesses as well as all the
surrounding circumstances
of the case.'
It is clear to me that defendant's
submissions tend to overemphasise a scrutiny of the probabilities of
the matter as against findings
on credibility. Mr Pieterse no doubt
had in mind what Coetzee J stated in the case of Cainer (supra at
237F): 'Where there are
probabilities, inherent or otherwise, there
is no room for this approach.' (The Gany approach.) But one must be
careful not to
interpret those remarks as signifying that the Court's
function of discerning the truth or falsity of witnesses' evidence
becomes
unnecessary where probabilities exist or less important when
looking at the probabilities. One must not lose sight of the earlier
conclusion of the same learned judge at 237H when dealing with
mutually destructive versions:
The position is simply that there is
no proof, by any criterion, unless one is satisfied that one witness
(sic witness's) evidence
is true and that of the other is false.'
Ultimately the question is whether
the onus on the party, who asserts a state of facts, has been
discharged on a balance of probabilities
and this depends not on a
mechanical quantitative balancing out of the pans of the scale of
probabilities but, firstly, on a qualitative
assessment of the truth
and/or inherent probabilities of the evidence of the witnesses and,
secondly, an ascertainment of which
of two versions is the more
probable. See Maitland and Kensington Bus Co (Pty) Ltd v Jennings
1940 CPD 489
at 492 where Davis J stated:
For judgment to be given for the
plaintiff the Court must be satisfied that sufficient reliance can be
placed on his story for there
to exist a strong probability that his
version is the true one.'
(Italicised by me.) As pointed out
by Clayden J. in International Tobacco Co (SA) Ltd v United Tobacco
Co (South) Ltd (1)
1955 (2) SA 1
(W) at 13 - 14:
Though a "strong probability"
may be less than "absolute reliance" it seems with respect
that an unnecessary
adjective has been introduced.'
It would therefore be correct for me
to say that in order to give judgment for plaintiff I must be
satisfied on adequate grounds
that sufficient reliance can be placed
on the story of the plaintiff and his witnesses, showing that their
version is more probable
than that of the defendant. But one still
has to go through the process of considering the credibility of the
witnesses and of
assessing their weight or cogency and after these
processes have been completed
what is being weighed in the
"balance" is not quantities of evidence, but are
probabilities arising from that evidence
and all the circumstances of
the case'.
See Hoffmann and Zeffertt SA Law of
Evidence 3rd ed at 411. When, on the other hand, Mr Botha submits
that
'in view of the overwhelming
evidence tendered by plaintiff and in my view the unreliability of
the evidence preferred by the defendant,
the Court is not called upon
to consider inherent probabilities in the matter other than those
borne out by the evidence'
his submission is also not entirely
acceptable. Because, in the process of determining credibility, the
Court is charged with the
investigation not only of seeking
demonstrations of falsehood in the evidence of an individual witness
but of weighing the inherent
probabilities in his/her evidence
showing that it may be false, though these improbabilities would, of
course, be revealed by the
circumstances of the case as a whole. But,
as I have said, Mr Pieterse in emphasising the 'probabilities
favouring defendant's
version' might also have underestimated the
Court's duty of examining the credibility of the witnesses on both
sides. I must say
something about the balance of probabilities or the
preponderance of probabilities argued by both counsel. It is of
course clear
that the Court is not engaged at the end of the day in a
mere mechanical process of balancing out the number of acceptable
witnesses
on the one side and the other because
'the object of the law is, or ought
to be, to secure the sequence of I certain results
upon certain objective
facts'.
See Wigmore Evidence (1981 ed) para
2498. As to the degree of probability that is sufficient for
plaintiff to discharge the onus,
see the remarks of Denning J in
Miller v Minister of Pensions
[1947] 2 All ER 372
(KB) at 373 cited
in Ocean Accident and Guarantee Corporation Ltd J v
Koch
1963 (4) SA 147
(A) at 157D. If the acceptable evidence is such
that I can safely say 'I think that it is more probable than
not' the burden
is discharged, but if the probabilities are equal, it
is not.”
[10]The
court a quo referred to the judgment in the Supreme Court of Appeal
in Stellenbosch Farmers’ Winery Group Ltd and
Another v Martell
Et Cie and Others.
[2]
In that case Nienaber, JA summarised the legal
position as follows:
[3]
“
[5] On the central
issue, as to what the parties actually decided, there are two
irreconcilable versions. So, too, on a number of
peripheral areas of
dispute which may have a bearing on the probabilities. The technique
generally employed by courts in resolving
factual disputes of this
nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court
must make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As
to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness'
candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial statements
or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance
compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend,
apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the
event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis
and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
In the light of its
assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with the
onus of proof
has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
Assessing
the evidence
[11]One takes from these dicta then the
cue that where versions collide, the three aspects of credibility,
reliability and probability
are intermixed, and all three must be
examined. This endeavour is not to be equated with box-ticking; the
constituent parts of
the exercise are indicated merely to underscore
the breadth of the field to be covered. The focal point of the
exercise remains
to find the truth of what had happened; these
considerations are markers along the way.
Credibility
[12]Starting
then with credibility, on appeal we suffer from the disadvantage of
not having been steeped in the trial, and not having
had the
advantages of the trial court in seeing the witnesses testify. In
this context the Constitutional Court has most recently
in Makate v
Vodacom (Pty) Ltd
[4]
restated the position.
[13]Trial courts have advantages that
appeal courts do not have. The former are steeped in the
matter; they observe witnesses,
and are able and required to assess
probabilities as they manifest within the circumstances prevailing,
and as they apply to the
particular witnesses testifying. In the
result, unless the factual findings of the trial court are clearly
wrong, or unless the
trial court will have misdirected itself, those
findings are not to be upset on appeal.
[14]It is instructive to quote the relevant portion
of the judgment of Jafta, J in Makate:
“
[37] In these
circumstances, interference with the factual findings made by the
trial Court is neither necessary nor justified.
Ordinarily
appeal courts in our law are reluctant to interfere with factual
findings made by trial courts, more particularly if
the factual
findings depended upon the credibility of the witnesses who testified
at the trial. In Bitcon, Wessels
CJ said:
‘
[T]he trial judge is
not concerned with what is or is not probable when dealing with
abstract business men or normal men, but is
concerned with what is
probable and what is not probable as regards the particular
individuals situated in the particular circumstances
in which they
were.’
[38] In our system, as in many
similar systems of appeal, the cold record placed before the appeal
court does not capture all that
occurred at the trial. The
disadvantage is that the appeal court is denied the opportunity of
observing witnesses testify
and drawing its own inferences from their
demeanour and body language. On the contrary, this is the
advantage enjoyed by
every trial court. Hence an appeal court
must defer to the trial court when it comes to factual findings.
In Powell
& Wife, Lord Wright formulated the principle thus:
‘
Not to have seen the
witnesses puts appellate judges in a permanent position of
disadvantage as against the trial judges, and, unless
it can be shown
that he has failed to use or has palpably misused his advantage, the
higher court ought not to take the responsibility
of reversing
conclusions so arrived at, merely on the result of their own
comparisons and criticisms of the witnesses and of their
own view of
the probabilities of the case.’ ”
[15]The court a quo was favourably
impressed with both the respondent’s witnesses. The court
considered that Mr Gouskos gave
his evidence in a clear and concise
manner, and made appropriate concessions. It held that the
cross-examination did not
discredit him; and that his evidence
contained no inconsistencies or contradictions. The court also held
that Mr Fritz corroborated
Mr Gouskos on material aspects, and that
he too was a credible witness.
[16]Testing the credibility on appeal,
one asks why the respondent’s witnesses would have wanted to
fabricate the version
to which they testified? One knows that their
deliberately falsely implicating Mr Sardinah would hold no advantage
for them, because
they must have considered that he would be
available to testify for the bank. Far better for them, if their
version was a deliberate
fabrication, to say that they cannot
remember the name of the person with whom they spoke.
[17]Yet they steadfastly insisted that
the person they dealt with was Mr Sardinah. This conduct is more
consistent with a person
who is convinced about the accuracy of his
(albeit incorrect) recollection, as one has so often experienced,
than with a person
deliberately fabricating a version.
[18]Likewise, the evidence about the
arrangement being for cash rather than on credit: if the respondent’s
witnesses were
deliberately fabricating the cash version, they would
have had to have catered for the possibility that the bank will
produce documentary
evidence corroborating the fact that internal
contemporaneous notes would prove a credit arrangement. They did not,
and no such
rebutting evidence was forthcoming.
[19]The court a quo was less favourably
impressed with Mr Sardinah. Although the court held that he had
testified in a clear and
concise manner, it held that he was not
independent and objective. He was held to appear biased and
gave evidence on issues
on which he did not have knowledge.
Reliability
[20]Moving on to reliability, the
respondent’s witnesses were obviously suffering from the
expected minor memory lapses, having
regard to the passage of time.
As a general proposition, however, it bears remarking that the two of
them were testifying to events
in which they were directly involved,
whereas the appellant’s witness was, on his evidence, not
there. The respondent’s
witnesses may therefore be expected to
provide more reliable evidence than the absent witness of the bank.
[21]In fact, not only did Mr Sardinah
testify to events at which he was not, but he also distanced himself
professionally, saying
that he was a salesperson, and that others in
the bank would have undertaken the preparatory work necessary for the
issuing of
the guarantees. He could not explain the absence in court
of the documentation, although he vouched for their existence.
Probabilities
[22]Turning finally then to
probabilities, these must be examined in view of the two subsidiary
questions identified above, being
whether Mr Sardinah was involved in
December 2008, and whether that guarantee was for cash or on credit.
Concerning Mr Sardinah’s
involvement, its relevance to the
issue is really only as to the credibility of the respondent’s
two witnesses, because there
must have been a person who on behalf of
the bank interviewed and interacted with the two gentlemen when they
came asking for the
increased guarantee.
[23]There is also a complicating
dimension on this issue, which is that the fact that Mr Sardinah was
not then employed by the bank,
was not taken up in cross-examination
of the respondent’s witnesses. In argument before us, Mr Peter,
SC who appeared for
the bank, argued that in fact it was taken up in
cross-examination.
[24]With respect, the passages relied
on by counsel deal with the identity of the person who executed the
guarantee on behalf of
the bank, and not with the question whether it
was at all conceivably possible for Mr Sardinah to have interacted
with the two
witnesses. That is important, because it is
possible that an exculpatory explanation for the memory lapse, or
incorrect recollection,
might have been forthcoming.
[25]Indeed,
the argument now advanced is not that someone other than Mr Sardinah
had signed the guarantee; that was never an issue.
The argument now
advanced is that the respondent’s two witnesses are dishonest,
because Mr Sardinah was in fact not there
in December 2008.
This is not permissible; as was held in Small v Smith:
[5]
“
It is, in my opinion,
elementary and standard practice for a party to put to each opposing
witness so much of his own case or defence
as concerns that witness
and if need be to inform him, if he has not been given notice
thereof, that other witnesses will contradict
him, so as to give him
fair warning and an opportunity of explaining the contradiction and
defending his own character. It is grossly
unfair and improper to let
a witness's evidence go unchallenged in cross-examination and
afterwards argue that he must be disbelieved.”
[26]Since on anyone's version
there must have been a body representing the bank when the customer
walked in there that December
day to get an increased guarantee,
there was at least potentially a witness available to the bank to
come rebut the version that the guarantee was cash based.
Yet
the bank was reticent to offer to the respondent’s witnesses in
cross-examination and to the court in argument who that
person might
have been.
[27]That introduces the probabilities
surrounding the second issue, being whether the guarantee was for
cash or for credit. The
respondent’s two witnesses gave direct
evidence that it was for cash. The bank set out to rebut that
version. They did so
by testifying that the only accounts within
their system into which the cash deposits could conceivably have
gone, do not reflect
the money.
[28]But Mr Sardinah explained that in
the case where cash deposits are received as security for a
guarantee, back-office, in this
case head-office, would take steps to
ensure that the funds will have been transferred into the appropriate
security account before
the guarantee would be issued.
[29]He explained too that issuing
a guarantee without money received as security is not common
practice; but when this does occur,
the same process is followed by
back-office, meaning that there would have been back-office credit
assessments in place and necessary
authority would have been given;
“
you cannot lend money to anybody
without having that proof,”
he
said.
[30]The bank did not discover such
documentation. The submission on appeal in response to the absence of
this material was that
a claim for repayment of a deposit was not the
pleaded case; the pleaded case was encashment of a guarantee. I am
not sure where
this submission goes, in the end. If the case were
simple encashment of a guarantee, and the defence was that the
guarantee had
not been given for cash but on credit, the evidence
required to substantiate that defence would be the same. Then too the
bank
would have had to have discovered the documentation
substantiating the credit afforded.
[31]In any event, the particulars of
claim, even if they could have been drawn better, do convey that the
respondent had deposited
money for the guarantee, no longer requires
the guarantee, and now wants the money back. On the bank’s
plea, those allegations
were squarely disputed, so that whether or
not moneys had been deposited in December 2008 was an issue defined
for trial determination.
Concluding
discussion
[32]Where does a consideration of the
three issues of credibility, reliability and probability then leave
one? The respondent’s
witnesses were credible, and so too
Mr Sardinah. But the respondent’s witnesses testified to events
which the bank’s
witness was not in a position personally to
rebut, apart of course from his own alleged involvement. But, as
pointed out above,
whether or not he was personally involved does not
discredit the respondent’s version.
[33]From a reliability perspective, the
tally also favours the respondent’s witnesses, who were on the
scene, and not like
Mr Sardinah, who was not at the coalface.
The probabilities are, at an objective level, in favour of the
respondent, if only
because issuing a guarantee on the back of cash
is the norm, not the exception, as is the case of issuing a guarantee
on credit.
[34]One must accept that had a deposit
been made, a paper trail would have followed as night follows day;
but then again, the approval
of a guarantee on credit would also have
left a paper spoor, as night follows day. Both are absent from the
evidence; but that
is not to say that either does not exist.
Specifically, I am not convinced that the bank has produced evidence
of the absence
of a deposit, as was submitted by Mr Peter, for a
reason mentioned below.
[35]Although an attempt was made to
prove the absence of a deposit, no attempt was made to prove the
presence of credit approval.
No explanation was offered through the
bank’s witness as to why it was not, particularly since the
bank was able to produce
what it said were the accounts into which
money would have been deposited. The bank cannot then begrudge the
fact that an inference
is drawn that proof positive of credit
approval does not exist.
[36]All that then really remains of the
probabilities is that guarantees are rather issued on the strength of
security than on credit.
That obviously favours the respondent’s
version.
[37]On the question of whether the bank
produced evidence of the absence of a deposit: is it possible that
the bank made a mistake?
That an account number was given to the
respondent’s witnesses that belonged to another customer?
[38]But whether or not the bank
made a mistake, the concluding words of Nienaber, JA quoted above
seem apposite: “
The hard case,
which will doubtless be the rare one, occurs when a court's
credibility findings compel it in one direction and its
evaluation of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But
when all factors are
equipoised probabilities prevail.
”
[39]In this matter credibility
ultimately tips the scales. Mr Gouskos’s evidence cannot, in
the light of the findings a quo,
and having regard to the
considerations raised above, be rejected without more. On the other
side of the scales, there is the bank’s
having put up the
accounts into which they say the deposit would have been received had
it been paid.
[40]But two potential flaws remain in
the persuasiveness of that rebuttal evidence: first, where is the
evidence about the guarantee
being for credit? And what if the moneys
were actually deposited into another customer’s account?
[41]In
the result the appeal cannot succeed. Interest on the judgment debt
must run from three days after the receipt of the demand
of 7 October
2013. Leaving seven days
[6]
for receipt, the date of mora would be 21 October
2013. The balance currently standing to the respondent’s credit
in the call
account must be deducted, since this formed part of the
R67 670.49. I have deducted R18 177.23, being the balance
at
31 October 2013, from the capital amount on which mora interest is
to run.
[42]In the result the following order
is made.
(a)
The appeal
against the judgment in the capital amount of R67 670.49 is
allowed.
(b)
The remainder of
the appeal is dismissed, with costs.
(c)
The judgment of
the court a quo is deleted, and the following is substituted for it:
“
Judgment is entered
against the defendant in favour of the plaintiff,
(i)
in
the amount of R67 670.49, less the amount currently standing to
the credit of the plaintiff in defendant’s books under
call
account 20000153379; plus
(ii)
interest
on R49 493.26 at 15,5% p.a. from 21 October 2013 to 31 July
2014; at 9% p.a. from 1 August 2014 to 29 February 2016;
and at
10.25% p.a. from 1 March 2016 to date of payment; plus
(iii)
costs
of suit.”
WHG van der
Linde
Judge, High
Court
Johannesburg
I agree.
KLaM
Manamela
Acting
Judge, High Court
Johannesburg
For the appellant: Adv.
J. Peter, SC
Instructed by:
Hirschowitz Flionis Attorneys
First Floor, Upper
Ground Level
8 Arnold Road
Rosebank
Tel: 011 880 3300
Ref: Mr A
Flionis/sp/bg/T325.09
For the respondent:
Adv. D.J. Winterton
Instructed by: KG
Tserkeris
Unit 1, Ground Floor
280 Kent Avenue
Ferndale
Tel: 011 285 3500
Ref: D Tserkezis/sr/24
HOUR
Date argued: 2 August,
2016
Date of judgement: 11
August, 2016
[1]
1988(2) SA 372 (V), at 374.
[2]
2003(1) SA 11 SCA.
[3]
At [5].
[4]
[2016] ZACC 13
at
[37]
to [41], the judgment in
the Please Call Me case, handed down on 26 April 2016.
[5]
1954 (3) SA 434
(SWA), at 438.
[6]
Compare s.7 of the Interpretation Act 33 of 1957.