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[2017] ZAGPJHC 105
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Silvo Transport CC v Minister of Safety and Security (24711/1996) [2017] ZAGPJHC 105 (24 February 2017)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG PROVINCIAL DIVISION,
PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE
NO:
24711/1996
In the matter between:
SILVO TRANSPORT CC
Plaintiff
and
MINISTER OF SAFETY AND SECURITY
Defendant
J U D G M E N T
KATHREE-SETILOANE
[1] The plaintiff, Silvo Transport CC
instituted action against the defendant, the Minister of Safety and
Security for payment of
the sum of:
(a) R346 200,00 being the fair and
reasonable market value of its truck a 1982 Mercedes Benz with
registration number [N....] with
chassis and engine numbers
62314564859766 and UF1042SA005694S respectively (“the
truck”);
(b)
R250 000,00 being the fair and reasonable market value of the
plaintiff’s trailer,
being a 1993 model trailer with
registration number [R....], with chassis number H85208 (“the
trailer”);
(c)
R460 800,00 as a result of the plaintiff’s loss of income
flowing from plaintiff
being unlawfully deprived of the use of its
truck and trailer in respect of its business.
[2]
The issues pertaining to the merits and quantum were separated in
terms of Rule 33(4) of the Uniform Rules of Court. The determination
of the merits proceeded before Motata J. He found in favour of the
plaintiff. The matter has its origins in a seizure of the plaintiff’s
truck and trailer described above, on 15 November 1995, by the South
African Police Services (SAPS). Subsequent to the seizure
in December
1995, members of SAPS handed them over to Rauties Transport
(“Rauties”). It, however, turned out that there
were no
grounds for the SAPS to have seized the plaintiff’s truck and
to have handed it over to Rauties, as it did not belong
to Rauties.
Accordingly, Motata J found as follows:
‘
When
the truck and trailer were attached the plaintiff at that juncture
carried the risk of loss of damage to the trailer at the
time of the
attachment and at the very least from its date of incorporation. See
Smit
v Saipem
1974
(4) SA 918
(A). It is not necessary for the plaintiff and ABSA Bank
to have entered into a new agreement. The assignment and cession of
rights
and obligations that clearly took place at the time of
incorporation was never objected to by ABSA Bank in any way
whatsoever.
At the time when the written cession was sought as proof
of the said cession, ABSA Bank Limited, according to Arbee was fully
apprised
of the circumstances and had no hesitation to effect the
cession as aforesaid. As such and it was correctly submitted that the
plaintiff, as owner of the plaintiff’s truck and cessionary of
the rights of ownership in respect of ABSA Bank’s trailer
had
satisfied all the elements of the action
ad
exhibendum
and I make a finding in plaintiff’s favour in this regard that
it would be entitled to payment of the proven market values
of the
vehicles in question as at the date of the position thereof during or
about December 1995.
In
my view, the plaintiff proved its delictual claim against the
defendant in that at the very least the plaintiff either as owner
or
bona fide possessor of the vehicles in question was entitled to the
lawful possession thereof, more particularly so in view
thereof that
the undisputed evidence of Arbee had been that substantial amount had
been spent on the restoration and overhaul of
the vehicle in question
and in view of the fact demonstrating that the member of the SAPS
wrongfully, unlawfully relinquished possession
of the aforementioned
vehicles to parties unknown to the plaintiff whilst at the relevant
time they, in doing so, breached a duty
of care owing to the
plaintiff to keep the plaintiff’s vehicle as aforesaid in safe
custody of the SAPS and to restore the
said vehicle to the plaintiff
in the condition they were at the time of the attachment once the
detention thereof in police
custody were no longer required,
which the members of the SAPS failed to do.’
Motata
J accordingly made an order that plaintiff succeeds on the merits and
that the defendant pays its costs.
[3]
During the commencement of the trial in respect of the quantum of the
plaintiff’s claims, the defendant conceded the amended
market
values of the truck and trailer in question. The value of the truck
was settled in the amount of R96 491, 00 excluding VAT
and the value
of the trailer (a DBJ body trailer) was settled in the amount of R57
017, 00 excluding VAT.
[4]
The plaintiff accordingly claims judgment in its favour in respect of
prayers (a) and (c) of its amended particulars of claim
and interest
on R96 491.00 and R57 017.00 at the rate of 15.5% per annum from the
date of receipt of the letter of demand being
16 October 1996, up to
and including 13 March 2001 and thereafter from date of judgment to
date of payment. The parties have agreed
that any payment awards made
by the court will not carry interest from 14 March 2001 until the
date of judgment and that any interest
claimed before 14 March 2001
is subject to legal argument and/or the evidence.
Interest payable in terms of
prayers (b) and (d) of the particulars of claim
[5] The defendant opposes the relief
sought in prayers (b) and (d) of the particulars of claim with
reference to section 4 of the
Prescribed Rate of Interest Act 55 of
1975 (“the Act”) which provides:
‘”
demand”
means a written demand setting out the creditor’s claim in such
a manner as to enable the debtor reasonably
to assess the quantum
thereof.’
The
common law has been replaced by the introduction of s 2A into the
Act. It provides in relevant part:
‘
(2)(a)
Subject to any other agreement between the parties the interest
contemplated in subsection (1) of Act 7 of 1997 shall run
from the
date on which payment of the debt is claimed by the service on the
debtor of a demand or summons, whichever date is the
earlier.’
[6]
The plaintiff’s letter of demand was received by the defendant
on 16 October 1996. It described the truck and trailer
with
sufficient detail so as to enable the defendant “reasonably to
assess the quantum thereof”. The defendant could
not possibly
have been unable to reasonably assess the market value of the truck
and trailer from the description provided in the
letter of demand.
Defendant’s contention to the contrary is not supported by any
evidence. As a matter of common sense
and logic, a defendant on
whom a letter of demand has been served cannot merely sit back and do
nothing to assess the demand. As
contended for on behalf of the
plaintiff, with the resources available to it, the defendant would
have certainly been in a position
to commission the services of an
expert to assess the market value of the truck and trailer. The SAPS
had the truck and trailer
in its possession for at least 15 days
after seizing them on 15 November 1995, and could not genuinely have
been in any doubt about
their condition and market value right from
the start, even before the letter of demand had been received. The
fact that the trailer
had a BDJ chassis as opposed to a Hendred
chassis should similarly not have posed a hindrance to the
defendant’s ability
to assess its market value. The defendant’s
belated concession of the market values of both truck and trailer
demonstrates
the fallacy of the defendant’s contention relating
to the interest claimed in prayers (b) and (d) of the plaintiff’s
particulars of claim. In the premises, the plaintiff is entitled to
the relief sought in prayers (a), (b), (c) and (d) of the plaintiff’s
particulars of claim.
[7] The issues that remain for
determination are:
(a)
Whether
the plaintiff (Silvo Transport CC) traded at the time of the
purported loss of income; and
(b)
whether
the plaintiff suffered a loss of profit as a result of being deprived
of possession of the income-generating truck and trailer
for the
duration of the contract which it concluded with Marlin Granite (Pty)
Ltd (“Marlin”).
[8]
Mr Louis Phillipus Snyman (Mr Snyman) of Marlin and Mr Ismail Arbee
(“Mr Arbee”), a member of the plaintiff, testified
for
the plaintiff. The defendant closed its case without calling any
witnesses.
Was
Silvo Transport CC trading during the period of the contract with
Marlin?
[9]
Mr Snyman has been the Logistics Manager of Marlin since 1990. He
testified that Marlin entered into a contract with Silvo Transport,
on 1 November 1995, in terms of which Silvo Transport was required to
supply Marlin with two trucks and two trailers (Interlinks)
for the
conveyance of granite blocks from the quarry in Kwagga’s Kop to
the station which was 53 km away. According to Mr
Snyman, the
contract was entered into with Silvo Transport, the partnership and
not Silvo Transport CC. “Silvo Transport”
appears under
the heading “subcontractor” in the contract. Mr Snyman
said that he and Mr Arbee signed the agreement
on behalf of Marlin
and Silvo Transport, respectively. He was, however, aware that
Silvo Transport CC had been incorporated.
Mr Arbee wanted to
enter into the agreement on behalf of Silvo Transport CC.
Marlin insisted on a bank statement that reflected
Silvo Transport CC
as the account holder (probably to ascertain whether the said CC was
in fact trading). Mr Arbee advised
that due to financial
constraints, the bank would not allow the account holder to change
from Silvo Transport, the partnership,
to Silvo Transport CC.
Mr Arbee was consequently unable to furnish the required bank
statement. Marlin was worried
“about fraud” and
decided not to enter into the contract with Silvo Transport CC. Mr
Snyman’s evidence was as
follows in this regard:
‘
Who
rendered the services? Silvo Transport
Who
traded as Silvo Transport? Mr Ismail Arbee
The
CC or Mr Arbee?’ Mr Arbee.’
This
version was later confirmed in cross-examination: Marlin insisted on
a bank statement from Silvo Transport CC and when Mr Arbee
could not
furnish same, the contract was carried out as before, with Silvo
Transport, the Arbees (partnership). Mr Snyman
dealt with Mr
Arbee and did not know who the other partners were.
[10]
Mr Arbee testified that he signed the contract on behalf of Silvo
Transport CC t/a Silvo Transport. Notably, the capacity in
which he
signed the contract is not reflected on the written agreement. Nor
does the plaintiff’s registered name (Silvo Transport
CC)
appear from the contract. He admitted during
cross-examination that the requirement of a bank statement did
come
up, but then rejected Mr Snyman’s version. He was
seemingly of the opinion that if a contracting party harbours
an
undisclosed intention (namely to contract on behalf of a CC and not a
partnership) that such an undisclosed intention should
be given
effect to. What he was unaware of is that if a close corporation does
not disclose to the outside world that it is acting
as such, the
members lose their protection afforded by the legal persona of the
close corporation.
[1]
[11]
The judgment of Motata J on the merits became final and definitive
when leave to appeal was refused by the Supreme Court of
Appeal on 18
December 2002. As is apparent from the judgment, it is common
cause between the parties that the plaintiff (Silvo
Transport CC) was
incorporated during 17 July 1995 with its members being Mr Arbee and
his brother Essop Ebrahim Arbee. All the
assets and liabilities of
Silvo Transport (the partnership) were taken over by the plaintiff
(Silvo Transport CC). The trading
name of the plaintiff is Silvo
Transport. Thus as of 17 July 1995, Silvo Transport (the partnership)
had dissolved.
[12]
Notwithstanding the findings of Motata J that the partnership had
dissolved as of 17 July 1995, the evidence of Mr Snyman revealed
that
Marlin had entered into the agreement with Silvo Transport (the
partnership) and not the CC. Mr Snyman was an honest witness
and he
had no reason to lie to the court. He was concerned that the
plaintiff could not produce a bank statement and therefore
felt that
it was prudent to contract with Silvo Transport, the partnership. He
would have not been aware at the time that Marlin
was contracting
with a partnership that had dissolved some months earlier.
[13]
Whether or not Mr Arbee informed Mr Snyman that the partnership had
dissolved remains unknown. The probabilities dictate that
he would
not have. However, what is clear from the objective evidence is that
Marlin did not enter into the contract with the Silvo
Transport CC
(the plaintiff). I have difficulty accepting the testimony of Mr
Arbee that he had disclosed to Mr Snyman that Silvo
Transport CC
traded and conducted its business as Silvo Transport, and that Mr
Snyman was happy to conclude the contract as long
as it referred to
the trading name of Silvo Transport. On the probabilities, it is
unlikely that Mr Snyman would have been comfortable
with Marlin
concluding the contract with an entity that had no legal persona. The
reason why he was comfortable with concluding
the contract with the
partnership was principally because it could provide him with a bank
statement. This indicated to him that
the partnership was trading at
the time. I therefore reject the evidence of Mr Arbee on this aspect.
As will become clearer in
the course of the judgment, Mr Arbee was a
wholly unsatisfactory witness.
[14] This then brings me to the
related question: Did the plaintiff (Silvo Transport CC) trade in the
transport arena subsequent
to the dissolution of the partnership on
17 July 1995. In view of the judgment of Motata J, it must be
accepted that the truck
and trailer were the property of the
plaintiff (Silvo Transport CC). The question however arises whether
the said CC was trading
in the transport arena before and after the
seizure of the truck and trailer. Objectively on the evidence,
the following
is apparent:
a)
The CC has no bank account or financial statements. The only
tax returns
that exist relate to the partnership during the period
1993 – 1997: that notwithstanding application and a court order
to
compel further and better discovery. The numerous cheques
that had been discovered do not reflect the identity of the
plaintiff.
b)
In the tax office there is no official reference to the CC. Mr
Arbee testified
that he did not know where the tax records because
those records were lost when the business moved during 2000. It
should
with respect be remembered that the plaintiff gave notice of
its intended action on 16 October 1996. One would expect an effort
to
retrieve records from his then auditors, the Receiver of Revenue etc,
after having realized that these records were missing.
His testimony
that he is sure that the Silvo Transport CC was registered as a
taxpayer/vendor flies in the face of the official
records. It should
be remembered that he has access to these records, but his attitude
is that the Defendant should procure the
records and the witnesses to
rebut the said statement. At the end of the day, and
notwithstanding the efforts of the Defendant
to procure further and
better discovery, the Court is left with: (i) two Natis extracts that
prove that the seized truck NXP 630
T and another truck TVT 902 T
were registered in the name of Silvo Transport CC (Exhibit 3 - 5);
and (ii) invoices relating to
the motor trade and manufacturing
sector. Any useful information as to activity of the plaintiff
in the transport sector
is non-existent. There is thus a total
absence of information on which a claim of loss of income can be
based.
Loss of income from the Marlin
contract
[15]
Mr Snyman’s testified that one truck had to move a 100 tons in
4/5 trips per day x 20 shifts per month, i.e. 2 000 tons
per month
per truck. In the light of his evidence that 2 trucks and 2
Interlinks were necessary, one would have expected
an early
cancellation of the contract or the employment of an additional
outside contractor to get the job done. This was
not the
evidence. Broadly evaluated, the evidence was that there were
problems: performance was not 100% and short supplies
developed from
time to time. The problem probably came to a head during
June/July 1999 when Marlin decided to expand by opening
new mines at
Mapochs (Roos Senekal). The cancellation on the contract in
1999 was probably prompted by Silvo Transport’s
limited
capacity and the ongoing need for Marlin to accommodate it.
[16]
The effect of Mr Snyman’s evidence is that there were
problems from November 1995, due to the fact that two trucks
were not
constantly available. Marlin nevertheless accommodated Silvo
Transport. At times (two to three days per month) Silvo Transport
made available a second truck from Rocla and they worked over
weekends on Saturday and Sundays to get the work done. Marlin
accommodated
Silvo because they had known the Arbees for a long
time. Mr Snyman went so far as to say that Silvo Transport’s
loss of profit may lie in the fact that it had to pay the
drivers overtime on Saturdays and Sundays. Marlin’s financial
manager was dissatisfied with the weekend situation as Marlin’s
employees had to work at a double tariff, resulting in increased
overheads for Marlin. Silvo Transport, however, received its normal
agreed tariff. A backlog developed through the years,
but it
was caught up over weekends.
[17]
Mr Snyman stated under cross-examination that he could not say what
the tonnage demand was in each specific month of the year
due to the
fact that these events occurred a long time ago. He testified that
the demand during 1994 was the same as in 1995, namely
2 000 tons per
month. His evidence was that a single truck could move 2 000 tons per
month: one truck x 100 tons per day x 20 shifts
= 2000 tons.
His evidence was somewhat ambivalent at times. One however, in
retrospect, does not know what the need
over and above 2 000 tons per
month was.
[18]
There was such a need. The parties seemingly managed to
accommodate each other in this regard. Under these circumstances,
the
plaintiff was required to prove the extent of the additional tonnage
that could have been transported had a second truck been
available.
Mr Arbee could not contribute to this aspect at all. The
Plaintiff’s scenario namely that Silvo Transport
could not
deliver an additional 2 000 tons per month is with respect devoid
from reality. It would mean that during the period
November
1995 - 31 July 1999 a backlog of 90 000 tons developed (45 months x 2
000 per month). It is totally unrealistic
to work on such
premise and assume that Marlin would accept such gross breach of
contract during the 45 month contract period.
Under the
circumstances, the court finds itself in the situation where it
simply cannot determine the extent of the alleged lost
opportunity.
[19]
As established on the evidence of Mr Snyman, and on the assumption
that there was a loss of profit, such loss was not that
of tSilvo
Transport CC. The contract was entered into with the
partnership/Mr Arbee and not Silvo Transport CC.
[20]
The evidence reveals that there were problems with the contract, but
backlogs were worked off and at best, insofar as there
is a loss, it
is a loss of having to employ and pay drivers for extra shifts during
Saturdays and Sundays (double time),
alternatively
there was a
loss of an indeterminable extent.
[21] In contrast to Mr Snyman’s
testimony, Mr Arbee was a wholly unsatisfactory witness. This is
illustrated by the following
examples:
[a]
He initially under cross-examination conceded that the partnership
was still trading
in the 1996 and 1997 tax years. He had to
make this concession: the tax returns were those of a partnership and
even the
leased vehicles were taken up in the partnership. After a
short adjournment, he changed his version - there was a CC from July
1999 and he intended to convey that these statements should have been
drawn up in the name of the CC, notwithstanding the fact that
he
signed the financials personally.
[b]
He initially denied having signed the Bankfin lease with the
handwritten inscription
“
t/a
Silvo Transport”
next to the names of Ebrahim Essa Arbee and his particulars. He
alleged that the handwritten portion must have been inserted
after
the signature. He was later constrained to concede that his
initial appears in this area, and that he might have initialled
next
to the Silvo Transport stamp. It leaves him with exactly the
same problem as in the Marlin contract.
[c]
His evidence in relation to the lease transactions for the vehicles
with registration
[P....] and [T....] and the Bothma
transaction for the vehicle with registration [T....] amounts
to nothing more than
fraud. Due to the fact that finance could
not be obtained from Bankfin/Absa, the witness colluded with Mr MF
Bothma and Casnum
Motors & Skroofwerf BK. Silvo Transport
was already the owner of the vehicles in the said leases. Sale
agreements
reflecting the sale of the same vehicles by Messrs Casnum
Motors and Mr Bothma to Silvo Transport were prepared and this
contract
was later ceded to Bankfin Bank. Bankfin then paid
over the monies to Casnum Motors and Bothma, whereupon the latter
channelled
the monies to Silvo Transport. The sale agreement is
nothing more than a sham. The bank could not have been aware of
the true state of affairs: on Mr Casnum’s evidence, the bank
did not want to make available any additional funds to Silvo
Transport. Mr Arbee later conceded that this transaction is not “100%
legitimate” and that he used a “loophole”
to effect
these transactions.
[d]
Exhibit 10, which is a credit application, is another example of
dishonesty: in paragraph
11 of the credit application it is indicated
that the nature of the CC’s business is transport and hardware
and that the
business commenced in 1965.
[e]
His statement under oath in the supplementary affidavit in Vol 2,
Exhibit 2, p192,
is on his own version false where he deposed under
oath that the CC stopped trading on 31 July 1999.
[6]
He testified that he was sure that Silvo Transport CC was registered
as a tax vendor. This allegation is without any factual
substantiation. One would expect him, as the representative
taxpayer of Silvo Transport CC, to submit proof but he failed
to do
so.
The plaintiff’s loss of
profit
[21]
The plaintiff alleged a monthly loss of profit in the amount of R38
400, 00 both in its letter of demand; the summons and in
the
pre-trial bundle. In par 4 of this bundle, the following
question was raised: “
On which basis is a loss of income at
a rate of R38 400, 00 per month calculated? Full particulars are
required”
. The answer appears in par 8 of the further
particulars furnished as follows:
‘
Calculated
over 24 days at an average of 22 loads, an average of R110.00 to
R115.00, gross of R35.00 net per ton, on average of
30 tons. From the
gross income, the following expenses are deducted: A – 25% for
diesel, B – 15% tyres and 9% for insurances,wages,
repayments,
tollgates etc.’
On
the first day of trial, Plaintiff’s counsel intimated that the
said amount is going to be adjusted downwards and indicated
the basis
of the downward calculation. The formal notice of amendment
only followed on the second day of trial.
[22]
During cross-examination Mr Arbee could not explain how a loss of R38
400,00 was initially calculated. He furthermore
conceded that
on the formula as contained in par 8 of the pre-trial bundle the loss
would have amounted to R37 026, 00 per month
on that formula. He
further testified that everything in par 8 of the further particulars
but for paragraphs A, B and C were incorrect.
The loads per
month (22 loads) were incorrect, and the rate (R110 - R115 per ton)
was incorrect. He later testified that this calculation
probably
related to another contract and not the Marlin contract. This
causes me to wonder whether the Plaintiff initially
calculated the
loss on the Marlin contract or just decided to make use of the said
contract on the trial date or shortly before
trial.
[23]
Mr Arbee initially testified that the expense percentage (49%)
applies to both the calculation in par 8 of the pre-trial bundle
(read with Exhibit 7)
[2]
,
and to the trial calculation, Exhibit 8
[3]
.
As pointed out by the defendant, there is an inherent fallacy in this
proposition: the diesel expense in Exhibit 8 must be a lot
higher
than in Exhibit 7, due to the fact that 4 or 5 loads are catered for
in Exhibit 8, and only one load per day in Exhibit
7. So the
percentages cannot be the same. Upon being confronted with the
problem that the very liberal expense percentage
cannot apply to all
contracts, in cross examination, Mr Arbee responded by stating that
this and the other percentage only applied
to the Marlin contract and
by application not to the calculation in Exhibit 7.
[24]
It later transpired that he was using an industry norm. He did
not make any calculations to ascertain whether the industry
norm
applied to his business and whether it would lead to a profit in the
business of the CC as a whole. He testified as
a layman and was
not an expert. As such, he was unable to assist the Court in respect
of the underlying assumption of the percentage
deduction. Mr Arbee
admitted as much under cross examination.
[25]
Mr Arbee’s evidence is of no evidential value in as far as the
Plaintiff’s loss of income is concerned. It seems
as though the
Plaintiff used the monthly contract sum and then deducted presumed
expenses to reach a profit margin. However,
no provision had
been made for business overheads like administrative costs, regional
services costs, municipal rates and taxes,
etc in the calculation.
These expenses were also not allocated proportionally to specific
vehicle(s).
[26]
In presenting its case to the court, the plaintiff failed to use the
data from the truck and trailer that transported the granite
during
the period 1995 to 1999. It would surely have been possible for
the Plaintiff to compile income and expenditure statements
in
relation to the said vehicle and allocate the business expenses of
the CC (insofar as the CC did in fact trade) to the said
expenses and
thus present the Court with a cogent picture that is supported by
expert evidence of, for example, a transport economist
and a forensic
auditor. The plaintiff presented no such evidence in support of
proving its loss of profit. The evidence presented
was nothing
more than unsubstantiated opinion evidence that is of no evidential
value in proving the plaintiff’s loss of
profits. The dictum in
R v Theunissen
1948(4) SA 34 (CPD) is apt in this regard:
‘
In
my opinion, and it is borne out by authority, he could have deposed
to the facts which he had found and upon which he relied
as the
foundation for the opinion, but an opinion,
unaccompanied
by the foundation on which it is based, is again of no value to the
judicial officer who has to make a finding on
it.’
[27]
The evidence of Mr Arbee was that the Silvo Transport partnership was
alive and well and trading in the transport arena during
the 2006 -
2007 tax years. The financials in this regard are instructive.
Mr Arbee testified that the partnership auditors
are qualified and
professional people who drew up the said statements on the correct
information furnished. He had no reason
to doubt the
veracity/reliability of the said statements. In this regard the
profit margins are enlightening:
1994: Turnover R1 042 805; profit R60
606, 26
1995: Turnover R1 731 556; profit R106
403,00
1996: Turnover R2 495 635; profit R47
130,00
1997: Turnover R3 202 015;
Loss
R56 509,00.
These
profits and losses fly in the face of the claims for loss of income
advanced on behalf of the Plaintiff.
[28]
On a consideration of the totality of the evidence of the plaintiff,
I find that the plaintiff has failed to prove its claim
for loss of
income flowing from the plaintiff’s unlawful deprivation of the
use of its truck and trailer during the period
in question.
Costs
[29]
For all practical purposes, the trail was conducted on one issue
only: Did the plaintiff suffer a loss of income? Costs
must
therefore follow the result. The plaintiff must therefore bear the
costs of these of the action.
[30]
In the result, it is ordered that:
1.
The
defendant is ordered to pay the plaintiff the amount of R96 491, 00.
2.
The
defendant is ordered to pay the plaintiff interest on the amount of
R96 491,00 at the rate of 15% per annum, from the date of
the receipt
of the letter of demand, being 16 October 1996, up to and including
13 March 2001 and thereafter from date of judgment
to date of
payment.
3.
The
defendant is ordered to pay the plaintiff the amount of R57 017,00.
4.
The
defendant is ordered to pay the plaintiff interest on the amount of
R57 017,00 at the rate of 15,5% per annum from the date
of receipt of
the letter of demand, being 16 October 1996, up to and including 13
March 2001 and thereafter from date of judgment
to date of payment.
5.
The
plaintiff’s claim for loss of income is dismissed.
6.
The
plaintiff is ordered to pay the defendant’s costs.
_____________________________
KATHREE-SETILOANE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG PROVINCIAL DIVISION,
PRETORIA
Counsel for the Plaintiff: Mr E
Wessels
Instructed by: Hesselink Konig
Incorporated
Counsel for the Defendant:
H J De Wet
Instructed by: The State Attorney
Transcript of evidence received - 23
October 2016.
Date
of Judgment: 24 February 2017.
[1]
Section
63(a) of the Close Corporation Act, Act 69 of 1984.
[2]
Exhibit
7: Calculation:
‘
1.
The gross remuneration method:
22 loads x 30 ton load x
R110,00 /ton (gross)
= R72 600,00 minus
expenses x 51% = R37 026,00 per month.
If we increase the gross
compensation by 10%:
22 loads x 30 ton/load x
R121,00/ton (gross)
=
R79 860,00 minus (expenses) x 51% = R40 746,60 per month.’
[3]
The
trial calculation in Exhibit 8 is as follows:
‘
20
days per month x 4 loads per day x 25 tons per load x 20, 75 per ton
= R41500,00 gross remuneration per month
20 days per month x 5
loads per day x 20 tons per load x R20, 75 per ton = R41500, 00
gross remuneration per month.
Gross method
R41
500,00 per month x 51 % = R21 165,00.’