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[2010] ZAGPJHC 80
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Elandsfontein Beverage Marketing (Pty) Limited v Joubert Scholtz Inc and Others (1167/03) [2010] ZAGPJHC 80 (21 September 2010)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Not Reportable
CASE NO
:
1167/03
DATE:
21/09/2010
In the matter between:
ELANDSFONTEIN BEVERAGE
MARKETING
(PTY) LIMITED
Appellant
(Plaintiff in the court
a
quo
)
and
JOUBERT
SCHOLTZ INC
First Respondent
(First Defendant in the court
a
quo
)
POLLOCK, R K, N.O. AND
MATLALA, N A, N.O.
(in their capacities as joint Trustees of
GOOSEN, PIETER ANDRIES) Second Respondent
(Second Defendant in the court
a
quo
)
ELANDSFONTEIN
95 CC
Third Respondent
(Third Defendant in the court
a
quo
)
ELANDSFONTEIN
BOTTLING CC
Fourth Respondent
(Fourth
Defendant in the court
a
quo
)
J U D G M E N T
LAMONT, J
:
[1] During December 1999 the appellant (then bearing a different
name) Goosen, Elandsfontein 95 CC, Elandsfontein Bottling CC
and
Platinum Food and Beverages CC entered into a suite of contracts.
Subsequent to the conclusion of the contracts Goosen’s
estate
was sequestrated. The trustees are cited as the second respondent.
For the sake of convenience the second respondent will
be referred to
as Goosen.
[2] The suite of contracts concluded during December 1999 included
contracts of sale of businesses, the sale of an immovable property
and a shareholders agreement.
[3] In terms
of the contract to sell immovable property Goosen was to sell certain
immovable property to the appellant at a price
of R13, 4 million.
[4] In terms of the sale of business contract Goosen, the third
respondent, fourth respondent and Platinum Food and Beverages
CC
(hereafter Platinum) sold to the appellant a business comprising the
Elandsfontein 95 business, the Elandsfontein Bottling business
and
the Platinum business. It was a term of the contract that the
appellant accept responsibility for certain of the liabilities
of the
business and the property limited to an amount of R12 million.
[5] The purchase price for the sale of the business and the property
was R30 million comprising:
1. Sale of the property owned by Goosen R13,4 million.
2. Sale of fixed assets of the business R15,8 million
3. Stock R00
,8 million
[6] The purchase price was to be paid as follows:
The issue to Goosen of 10 million ordinary par value shares in the
Appellant of R1 (an amount of R10 million).
Payment by the appellant to the creditors of Goosen in respect of
any obligations secured by mortgage bond over the immovable
property and the creditors of the other sellers in respect of such
creditors of the businesses as the appellant would determine
up to
an amount of R12 million.
As to the balance by the creation of a loan account in favour of
Goosen in the books of the appellant.
[7] It is immediately apparent that the mechanism of payment of the
amount of R30 million comprises a set of payments to be made
by the
appellant by the issue of shares, the creation of a loan account for
the difference between R12 million and the amount paid
by the
appellant to the creditors of Goosen for debts secured by a mortgage
bond or bonds over the immovable property and such
other creditors of
the sellers as the appellant decided. No monies were to be paid
directly to Goosen. No monies were to be paid
directly to any of the
sellers. Neither Goosen (save in respect of creditors secured by
bonds over the immovable property) nor
the sellers were entitled to
require payment by the appellant to any of their creditors. Any
amount paid in the discretion of the
appellant to creditors of the
sellers was to be taken into account in determining the amount to be
paid to Goosen by way of adjustment
to the loan account to be created
for him. This being so any rights of accounting by the sellers lie
against Goosen.
[8] At the
time the contracts were concluded the sellers were in dire financial
straits as was Goosen. For some 3 years Goosen
had been assisted by
Mr Joubert (“
Joubert
”),
his close friend and attorney in his efforts to stave off his
creditors and the other sellers’ creditors. Some
creditors had
instituted proceedings and were aggressively pursuing their rights
including perfecting security over movables and
taking steps to
execute on the mortgage bond over the immovable property.
[9] An amount was due to FNB Limited (FNB) in respect of monies it
had lent and advanced to Goosen which were secured by the mortgage
bond registered over the immovable property. An amount was due by the
third respondent to Standard Bank of South Africa Limited
(Standard)
in respect of monies lent and advanced. This debt was secured by a
general notarial bond which had been passed over
movables including
the plant and equipment of the third respondent.
[10] Before
the contracts could be implemented the rights of the banks had to be
dealt with and the amounts due to them had to
be paid to release the
security they held over property which could not be transferred or
dealt with until that time. The appellant
in terms of the sale of
Goosen’s property would have to pay the amounts due to obtain
the release of immovable property from
the FNB bond. At the time of
the conclusion of the contracts the appellant did not know of the
existence of the notarial bond.
It only came to know of the bond
during or about April 2000. The appellant knew it had to make
arrangements to pay the FNB bond
debt and included provision for this
in the contract. Goosen represented to the appellant that the amount
required to obtain the
release of the immovable property was some R4,
6 million. The obvious person to deal with the payment was Joubert.
Joubert had
been dealing with FNB for years. He had, together with
Goosen, been present at the settlement with FNB of the amount due to
obtain
the release. That amount during November 1999 was settled at
R3, 8 million (unbeknown to the appellant) to be paid by 17 January
2000.
[11] The
appellant’s evidence given by one Abdoola (“Abdoola”)
was that the appellant and first respondent represented
by Joubert
had orally agreed that the appellant would pay the first respondent
the monies to be paid to FNB. The first respondent
would pay only
such monies as were required to obtain the release of the immovable
property from the bond (appellant believed this
to be R4, 6 million
in fact it was only R3, 8 million). At the time this arrangement was
reached these were the only monies which
were to be paid by any
person other than the appellant to any creditor. They were also the
only monies to be paid to any of Goosen’s
creditors.
[12] Joubert claimed not to have been aware of the terms of the
suite of contracts as he had not been available to deal with their
drafting. It is improbable however that Goosen would have concluded
the contracts without having taken the advice of Joubert.
Joubert
knew the affairs of Goosen and the other sellers intimately. The
conclusion of the suite of contracts was an event involving
the
transfer of approximately 50% of Goosen’s income earning assets
at a price of many millions.
[13] If the contracts were implemented Goosen anticipated he would
be saved from his parlous financial situation. I find on the
probabilities that Joubert knew of the terms of the contracts and in
particular knew of the financial obligations of the appellant
under
the suite of contracts and how those obligations were to be
performed.
[14] At the time the mandate was given to Goosen there was
accordingly to the knowledge of both Goosen and Joubert no question
of the monies being paid to the first respondent being used for any
purpose other than paying FNB the amount required to release
the
immovable property from the security held by FNB. It is unthinkable
that any creditor other than FNB would even have been discussed
at
that time. In addition the only pressing issue at the time was the
payment due to FNB.
[15] The
appellant induced by Goosen paid R4,
6 million to the first respondent in two tranches one of R3, 8
million and one of R800 000,00. This was more than was required
to
obtain the release of the immovable property from the bond. The first
respondent paid FNB R3, 8 million and paid the excess
to persons
directed by Goosen. It is that excess (R800 000) which forms the
subject matter of the first claim against the first
respondent.
[16] Joubert
and Goosen claimed that the terms of the mandate were that first
respondent would receive the monies, and was to pay
them to FNB and
also to whomsoever Goosen indicated. Goosen’s evidence was
that he could use the monies, give instructions
with regard thereto,
in due course there would be an accounting and that this had been
arranged with Abdoola. Goosen said he believed
that the money which
was paid to the first respondent was in fact his.
[17] It is
however improbable that the terms of the mandate would have
encompassed payment to anyone other than FNB. The suite of
contracts
did not provide for Goosen to determine who would be paid. The
appellant did not leave funds readily available and was
required to
borrow them. It is probable that the appellant would not have wanted
to borrow funds until it was absolutely necessary
and then in the
minimum amount necessary. It is also improbable that the appellant
who in terms of the contract maintained control
over who was to be
paid would relinquish that right.
[18] Much
later during 2000, the appellant paid the first respondent an amount.
R2 724 024, 65 believing that to be the amount
required to obtain the
release of Standard’s notarial bond as that was what Goosen had
told Abdoola. In fact only the amount
of R2 011 238, 13 was required
to obtain the release of that bond and only that amount was paid by
the first respondent to Standard.
The first respondent paid the
excess (an amount of R712 786, 52) as directed by Goosen. Goosen and
Joubert gave evidence that
those payments were authorised by the
appellant represented by Abdoola. The evidence of Abdoola was that
the mandate provided for
monies to be paid to first respondent to pay
Standard and no one else.
[19] The
appellant’s case was accordingly that amounts of R800 000,00
and R712 786, 52 were paid by the first respondent
otherwise than
pursuant to the mandate; the first respondent’s case was that
the amounts were paid in accordance with the
mandate.
[20] It is
necessary when analysing evidence to have regard to the quality of
the witnesses and also to the probabilities. A witness’s
evidence is contradictory and vague usually because it is inaccurate.
It may be inaccurate for many reasons, deliberate falsehood,
mistaken
observation or mistaken recollection. A witness’ evidence may
be clear and satisfactory on the face of it but when
it is considered
in the light of the probabilities it may readily become apparent that
it is unacceptable. A trial court is required
to consider all these
aspects and make findings accordingly. Findings and inferences not
consonant with all the facts cannot be
made.
[21] There are three primary methods used to determine
probabilities. Probability theory is a branch of mathematic concerned
with determining the likelihood a particular event will occur. The
three primary methods are:
Subjective probability.
Classical or theoretical probability.
Empirical probability.
[22] Subjective probability is determined by an individual’s
best available knowledge and his personal judgment of how events
are
likely to occur. This probability is not based on formal
calculations but comprises the globular knowledge of the person who
makes the judgment and so reflects his opinions and past experiences.
[23] Classical or theoretical probability is a probability which can
be determined in advance of any experiment. There are two
sides to a
coin and the chance (assuming the coin to be regular) of either of
the surfaces facing up is equal.
[24] There is empirical probability, a probability calculated
pursuant to experiments. Empirical probability is the most accurate
or scientific guess based on the results of experiments. Naturally
the more experiments conducted the more likely the guess is
to be
accurate.
[25] It is
not necessary for a judge to wander into the realm of precise
calculation and scientific correlation of events. A judge
is required
to determine a probability only. A judge’s answer to a
particular question is that it is probably so based on
the totality
of the evidence. A scientist’s approach to a particular
problem is different. A scientist attempts to assess
likelihood in
terms of scientific certainty. This is not the correct approach of a
judicial officer. See
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at para [40].
[26] A judge
when determining the probabilities will consider the totality of the
evidence and draw appropriate inferences from
those facts he finds
proven. A judge may not read between the lines to speculate. See
Nedbank
Ltd v Pestana
[2008] ZASCA 140
;
2009 (2) SA 189
(SCA) para [10];
South
African Post Office v De Lacy and Another
2009 (5) SA 255
(SCA) at paras [34] and [35].
[27] The facts relevant to determining the probabilities include the
matters set out below:
Goosen and Joubert were well known to each other. They had had
contact for many years and Joubert was au fait with the
circumstances in which Goosen found himself.
Goosen and the artificial entities which he controlled were in
severe financial difficulty. The straits of Goosen were such
that
his estate was later sequestrated. The banks were aggressively
seeking to recover debt due to them. The debts due to
the banks
were secured by bonds. The property bonded could not be transferred
without obtaining the release of the bonds.
The contracts disposing of the businesses and Goosen’s
immovable property did not provide for Goosen to be paid money
to
deal with as he pleased or for him to pay creditors of the
businesses and movable property. He was to receive a credit
in a
loan account. The appellant was to decide which creditor was to be
paid and to actually implement payment.
The appellant had limited readily available liquid resources to
use to make payment. The Applicant was compelled to borrow
monies
to enable it to pay.
If monies were paid to Goosen to enable him to make payment to the
creditors, such monies were at risk. Goosen’s other
creditors could attack the payments as comprising impeachable
transactions. The result would be that the creditor intended
by
the appellant to be paid might have to disgorge the payment made by
Goosen. This would place assets of the businesses at
risk and
create a possibility of the appellant being required to pay the
debt afresh.
It would be
sound business practice for the appellant to put in place controls
over the monies paid over. There was no reason
for the appellant
to have become involved with paying over moneys to an attorney to
act in accordance with its mandate if
it wanted to permit Goosen
to deal with the monies as he pleased.
Goosen
produced a list of creditors at a point in time. The creditors of
the close corporations were identified by Maria Goosen
who is
Goosen’s wife. She prepared a creditors’ list which
was used to identify the creditors of the business
to Abdoola.
That list is known as Annexure “E”. All the documents
of the close corporations were collated by
her and sent to Abdoola
in Durban. It is apparent from the fact that the close
corporations’ documentation was sent
to Durban that the
appellant was enabling itself to exercise the rights it had under
the contracts to identify and pay certain
creditors and also
disabling Goosen from being able to exercise control.
During November 1999 Joubert acting for Goosen and Goosen settled
Goosen’s indebtedness to FNB Limited at R3,8 million.
The
monies were to be paid to the bank on or before 17 January 2000.
The appellant was unaware of this fact until after payments
had
been made, notwithstanding the fact that both Goosen and Joubert
knew what the amount was. The appellant wrongly believed
that the
amount to be paid was R4,6 million.
On 17 January 2000 Goosen went to consult Joubert. During the
consultation contact was made with the appellant concerning
the
mandate. There was no reason for this contact unless Joubert knew
that Goosen was not authorised to deal with the funds,
This
corroborates the probability that Joubert knew the terms of the
suite of contracts.
A cheque for R3,8 million dated 17 January 2000 was delivered to
the first respondent. It was marked “for FNB”
and was
delivered on the day that payment was due.
A cheque for R0,8 million dated 16 February 2000 was delivered to
the first respondent. It was marked “in lieu of purchase
of”
the immovable property.
On 17
January the first respondent represented by Joubert
(notwithstanding that the reference is Mr. Scholtz) wrote a letter
to the appellant confirming that R3,8 million and R800 000 were to
be received by it “ten einde eerste Nasionale bank
te
betaal”. The letter continues, “Ons bevestig dat U
onderneem om met Eerste Nasionale bank to onderhandel en
te kyk
wat die minimum bedrag is wat hulle bereid sou wees om in volle en
finale vereffening te ontvang.” Abdoola who
knew only of the
existence of one debt due to FNB for R4,6 million would understand
the letter to be referring to that debt
and dealing with a mandate
he had given on his evidence. He would not be alerted to the
position claimed by Joubert and Goosen
to exist namely that the
entire Goosen debt to FNB had been paid and that negotiation was to
be undertaken in respect of another
debt to FNB. Joubert and
Goosen knew that the appellant was under a mistaken belief that
the amount of R4,6 million might
be reduced if there was successful
negotiation. In fact there was no such opportunity available. The
amount had long since
been settled. Seen in this light the true
intent of the author appears, namely, to perpetuate the
incorrectly held belief
of the appellant while setting out a
different gloss to a person with knowledge. The latter person
would understand what was
actually contemplated to happen to the
money namely that the R0,8 million was to be paid to FNB but not
for the debt of Goosen
for the bond. This language was inevitably
seized upon by both Goosen and Joubert as evidence of the fact
that the mandate
was as they alleged namely that Goosen had a
right to direct payment to FNB for other debts.
On 18
January 2000 Goosen wrote a letter to Joubert in the following
terms. “Jan, Na die vele telefoon oproepe na Abdoola
en
Moosa gedurende Desember en begin Januarie gaan ons nou R3,8
miljoen rand by jou inbetaal, vandag of môre, wat jy
asb. in
trust moet neem en mnr. Uys van ENB laat weet (dringend). Dit is
deel van die koopprys van die fabriek (deel van
die krediteure
lys). Die R3,8 m moet dringend aan Uys & Kie oorbetaal word en
kan nie langer wag nie. ‘n Verdere
bedrag van R800,000 sal
aan jou oorbetaal word in die nabye toekoms welke bedrag jy moet
oorhou totdat ek jou instruksies
gee (aangesien ek nog met ENB
probeer onderhandel vir afslag) hoe uitbetaling moet geskied. Is
dit moontlik dat rente verdien
kan word op gelde nog nie uitbetaal
nie? Dankie vir jou hulp. “P.A. Goosen” This letter
was solicited by Joubert.
It sets out the true position which had
been achieved by the implementation of the scheme. There was no
reason for this letter
to be written. Goosen was not authorised to
give any instructions. To the knowledge of Joubert the only
creditor of Goosen
the appellant would pay was FNB and only to the
extent it was necessary to do so to obtain release of the mortgage
bond. The
only part Joubert was playing in relation to the
appellant was as its hand in making that payment. There was no need
to discuss
any other creditors at that time. In these
circumstances it appears that Joubert solicited the letter in the
hope it would
bolster his claim that the appellant had agreed to
his disbursements at the instance of Goosen.
On 26 January 2000 the first respondent wrote to the appellant
confirming that the first respondent had paid R3,8 million
to FNB
“ter gedeeltelike vereffening van die eis” of FNB
against the appellant. The letter further sets out that
the
appellant awaits specific instructions as to what the amount which
had been agreed with the bank was as only R3,8 million
had been
received and as according to the calculations of the first
respondent a considerably larger amount was due to FNB.
There was
in fact to the knowledge of Joubert no such amount which the
appellant was contractually obliged to pay. His statement
that the
payment was made in partial reduction of a debt due by the
appellant is not comprehensible unless it was made in
the course
of misleading the appellant.
On 18
February the first respondent designedly wrote to Goosen, not to
the appellant, advising that it had received R800 000.00
and that
in accordance with instructions it had placed the funds in Goosen’s
account at NBS. (This was something never
part of his mandate on
any basis.) The letter further advises that Goosen had undertaken
to see to it that any amount outstanding
to FNB would be paid out
of those funds. This advice of Joubert appears to be a recordal of
an obligation. There is no other
probable reason for the recordal
save that one day Joubert might need to produce evidence of the
transfer of the obligation
from the first respondent to Goosen.
That obligation would only have existed initially if the evidence
of Abdoola is true
namely that the First respondent pay FNB. In
addition it is peculiar that this letter was sent to Goosen and
not the appellant.
A shareholders meeting of the appellant was held on 24 February
2000. At that meeting it was disclosed that the appellant
could
obtain a loan inter alia against security of the immovable property
and the movable assets. (This security could not
be given unless
the two banks rights to hold same as security was released). Goosen
expressed thanks for that but raised neither
the fact that lesser
amounts than the R4,6 million had been paid nor the fact that he
had been directing payments to persons
other than FNB from the
R4,6 million. It is probable that Goosen wanted to persist in
keeping concealed the fact that the
debt to FNB was settled at R3,8
to maintain the secrecy surrounding the windfall he had received.
During March
2000 Standard settled the amount of Goosen’s and the fourth
respondent’s notarial bond debt due to
it in an amount of
R2,6 million
.
Goosen did not pay Standard the monies on due date. Standard
demanded payment of interest if the due date was to be extended.
The appellant agreed to pay interest.
A cheque for
R1,0 million dated 30 June 2000 was delivered to the first
respondent. It was marked “Standard Bank”.
A cheque
for R1,6 million dated 31 July 2000 was delivered to the first
respondent. A cheque for R124 024,65 dated 10 August
2000 was
delivered to the first respondent. On the evidence of Abdoola all
the cheques were delivered to enable first respondent
to pay
Standard.
At some stage prior to 8 August 2000 the amount due by the business
to Standard bank was settled in the sum of R2 011 238,13.
The
amount due was actually paid over on 8 August 2000.
On the 11 August 2000 the bank advised the first respondent that it
had been paid and that no further action would be taken.
On 11 August 2000 the first respondent advised the appellant that
it had been instructed by Goosen to disburse monies in the
amounts
and on the dates set out below.
04/07 R900 000
31/07 R1,3 million
01/08 R200 000
01/08 R324 024,65.
In the
letter the first respondent advises the appellant that Goosen had
informed it that he, Goosen, had been paying for
small items out
of his pocket and that he required immediate reimbursement. The
letter continues to set out that Goosen had
been unable from his
inspection of the books to ascertain what amounts out of the R12
million allowances for such payments
had been made to creditors.
As Goosen was able to give instructions to the first respondent
that monies which had been earmarked for Standard were to
be
disbursed otherwise than to Standard the inference can be drawn
that the amount due to Standard by the business had been
settled
by that date.
The cheque
for R124 024.65 which was paid to the first respondent by the
appellant was handed to it by Goosen and deposited
to the trust
account on 10 August 2000. This amount represented interest on
R2,6 million and was calculated as if the debt
to Standard had not
been settled and as if it were still due in terms of the earlier
arrangement pursuant to which an extension
had been granted by
Standard. The pretence that the full amount was due to Standard
was maintained. Joubert must have been
aware of the amount of the
debt due to Standard to obtain the release of the movables from
the notarial bond. He had been
involved in the affairs of Goosen
and his businesses for years and paid the amount to Standard. He
also dealt with the excess
in accordance with the instructions of
Goosen. It is improbable that he as he claimed in evidence had no
knowledge of the
Standard settlement. Joubert was aware that funds
were being collected from first respondent in excess of the
Standard debt
and that the first respondent was disbursing them
otherwise than all to Standard.
On 20
December 2000 the first respondent in response to a claim made in a
letter written by the appellant’s attorneys
dated 13
December 2000 stating that the purchaser had negotiated settlement
with FNB and Standard Bank. He stated “Wat
die
skikkingsonderhandelinge betref het u klient geen onderhandelinge
gevoer nie en was dit die firma (with reference to the
first
respondent wat dit gedoen het nadat die sake vir etlike jare geduur
het.” This is an admission that the first
respondent had
participated in the settlement negotiations and hence must have at
all times been aware of the true state of
affairs concerning the
amounts actually due to the banks.
[28] Joubert
sought to justify the conduct of the first respondent by relying on a
mandate which he stated included a right to
act on instructions
received from Goosen. His evidence concerning the FNB monies was
founded on an agreement reached with Moosa
on 17 January 2000. During
the meeting Moosa of the appellant had told him that monies which
were paid to first respondent were
to be paid out in accordance with
instruction of Goosen. At the time of the meeting there was no other
creditor to be paid. There
was no contractual obligation on the
appellant to pay any one of Goosen’s other creditors The
appellant was the person which
was to decide and direct which
creditors of the sellers was to be paid. Moosa was not the person
dealing with the matter on behalf
of the Appellant. The letter dated
17 January 2000 Joubert sent a letter to the appellant. In the letter
Joubert sets out that
he does not bear out the claimed arrangement.
Joubert sought to explain the contradictions which arise out of the
statements made
in the letter and made by Joubert in his evidence by
reference to a paragraph in the letter which indicates that the
appellant
had undertaken to negotiate with FNB in order to ascertain
what the minimum amount was which they would be prepared to receive
in full and final settlement. There was no such additional amount due
by Goosen. In addition the explanation furnished by Joubert
fails to
explain why the total amount to be paid namely R4,6 million
coincidentally amounts to the total amount originally due
to FNB and
was also the amount which had been represented to Abdoola as being
the amount which had to be paid to FNB. The letter
dated 26 January
2000 written by first respondent sets out that R3,8 million had been
paid to the bank and that this resulted in
a partial settlement of
the claim of FNB against the appellant. This statement is not
consonant with the facts. There was a full
payment of any claim which
FNB could make concerning the bond. Joubert cannot explain this at
all.
[29] The evidence of Joubert is improbable. Joubert’s
explanation that the extra amount represented a debt due by Goosen
to
FNB for another causa is implausible as that debt was of the order of
R500000 not R800000. There is also the inexplicable fact
that there
was no need to negotiate as the letter suggests and further no need
to do so at that time.
[30] In my
view the evidence of Abdoola falls to be accepted namely that the
appellant was told that an amount of R4,6 million
was required to
settle the FNB debt, that he paid it to the first respondent to
enable the first respondent to pay FNB the amount
due to obtain the
release of the bond over the immovable property. This debt was the
only one with which the appellant had to deal
at that time. The
probability is that the instruction given to Joubert was as described
by the appellant namely to receive the
money and pay only FNB with
it. The evidence in this regard is consistent with the terms of the
contract, the other evidence and
the probabilities.
[31] Joubert
throughout his evidence relied on the fact that Goosen was a director
of the appellant and hence was entitled to give
instructions in
relation to the affairs of the appellant. Goosen was a director of
appellant until July 2000. This issue does
not arise in relation to
the Standard payment. It is apparent from the first letter which was
written on 17 January 2000 which
recorded the mandate that the
mandate involved payment of particular monies to a particular person.
That instruction is clearly
recorded and would on the probabilities
not change unless the terms of the suite of contracts changed. That
had not happened. There
was no reason for anyone to give any
different instruction to first respondent. Joubert recognised that
the person, who had the
authority and control over the affairs of the
appellant, was Abdoola. Joubert well knew that Goosen was in deep
financial trouble
and had been so for several years. To Joubert’s
knowledge the debts to Standard and FNB were secured by bonds. The
entire
transaction between Goosen, the other sellers and the
appellant was to create a structure which would result in the affairs
of
the business being regularised and the new controlling entity
being able to deal in the assets. The sole debt known to the
appellant
at the time which impacted on the sales was the loan
secured by the bond. The suite of contracts recognised this. One
would have
expected Joubert to view an instruction to pay creditors
as directed by Goosen as unusual and unexpected. It would be
inexplicable
in the light of his actual and commercial knowledge. To
this must be added the fact that to Joubert’s knowledge Goosen
had
sold assets and a new person was relevant to instructions he
would receive from the appellant, namely Abdoola of 26 January 2000
in the manner in which he did to mislead the appellant and in an
effort to maintain the appellant’s belief that R4,6 was
due to
FNB.
[32] In my view the appellant established that the mandate given to
the first respondent was as it had claimed.
[33] Insofar as the Standard debt is concerned the debt was
originally settled at R2,6 million. The appellant sought an extension
of time within which to pay the debt and the debt became R2,6 million
plus interest at 14,5% per annum compounded monthly from
22 March
2000 to date of payment being no later than 30 June 2000. As at June
2000 the bank had perfected the notarial bond and
was entitled to
possession of the movable assets in accordance with the terms of a
Court order. These facts were drawn to the attention
of Joubert on 30
June 2000 by way of a letter written by the bank’s attorneys of
that date. On 8 August 2000 the bank confirmed
that the accounts of
the mortgagor and Goosen had been repaid in full and that the files
had been closed. There was accordingly
a release of the movable
assets from the effect of the pledge.
[34] During
June and July 2000 the appellant paid R2,6 million to the first
respondent. These payments were made to pay a debt
due to Standard.
Standard had written a letter claiming R2,6 million. Goosen
instructed the first respondent to pay Standard
an amount of some
R2,2 million being an amount which unbeknown to Abdoola he had
settled as being the indebtedness due by himself
and the fourth
respondent to Standard. Although a lesser amount than R2, 6 million
was due the full amount of R2,6 million was
required of the appellant
which then paid that amount. Subsequently on 10 August 2000 the
appellant paid the first respondent
the sum of R124 024,65 being the
amount represented to be due to Standard in respect of interest which
the appellant had agreed
to pay. On this basis the debt due to
Standard was R2,6 million. This cheque was handed to Joubert by
Goosen to whom it had been
handed by the appellant. It is apparent
that at the time this cheque was handed over there was no debt due in
respect of interest.
The total amount due to Standard had been
settled by Goosen previously. Goosen stated that he was unable to
calculate the amount
due and that it could only have been calculated
by Standard. The evidence shows that the only parties who could have
performed
the calculation were Standard, Joubert or Goosen. Standard
had no reason to and is unlikely to have calculated interest which
was not due to it and in respect of which it made no claim. Goosen
said he could not do the calculation. The only person who could
have
done the calculation was accordingly Joubert. It is probable in my
view that Joubert did do the calculation. If this calculation
was
done by Joubert, as it appears to have been at a time after the debt
to the bank had been compromised then Joubert was party
to the
representation made by Goosen that this was the interest amount and
that it was due to the bank. The amount was calculated
down to the
last cent and is calculated on an artificial amount (R2,6 million)
which was not due to the bank as the amount had
been settled. In a
letter of 11 August 2000 written by the first respondent to the
appellant Joubert confirmed that Standard had
been paid in full and
that these amounts had been paid pursuant to instructions given. This
letter corroborates Abdoolsa’s
evidence. It is however
misleading in that it is not apparent that there was an excess paid
over the amount due to release the
movables from the operation of the
notarial bond.
[35] At the
time Joubert made payment to Standard he must have known that that
was more than the amount due to the bank to release
the bond. It is
improbable that he paid other debts without knowing the causa for the
payments. Joubert knew he was dealing with
monies otherwise than in
terms of the mandate and knew that the excess over the actual amount
due to Standard in terms of the mandate
had been received by first
respondent. The probabilities in my view favour that Joubert had
knowledge of what the amount was which
was due to the bank in reality
and also that he knew that the appellant would not want to pay more
than that amount to him. On
20 December 2000 the first respondent
accepted that all negotiations with reference to FNB and Standard had
been conducted by the
firm comprising the first respondent. This
telling admission is in a letter written at a time closer to the
events and further
indicates that Joubert must have had knowledge of
the settlement.
[36] The protestations of Joubert that he did not wish to become
involved in the negotiations with Standard Bank which was a client
of
the first respondent in my view do not stand up to close scrutiny.
These protestations amount merely to an attempt by Joubert
to avoid
the consequences of his having knowledge of the outcome of the
negotiations.
[37] The claim based on unjust enrichment is dealt with below.
The first respondent received the following payments from appellant
R3,8 million
R0,8 million
R2,6 million
R124 024,65
The claim of the appellant against the first respondent totals the
amounts it paid as allegedly directed by Goosen namely R800
000,00
and R712 786,52 i.e. R1 512 786,52.
The claim of the appellant against the other respondents is
represented by the amounts each received in pursuance of Goosen’s
directions. Those amounts are:
R800 000,00 paid to Goosen
R712 786,52 paid as follows:-
Goosen R150 000,00
Goosen R 50 000,00
Third respondent R 30 000,00
Goosen R150 000,00
Third respondent R 20 000,00
Third respondent R 60 000,00
Goosen R 64 024,65
Fourth respondent R188 761,87
The total receipts were accordingly:
Goosen R1 214 024,65
Third respondent R 110 000,00
Fourth respondent R 188 761,87
[38] The
monies were received sine causa as the payments were not made with
the authority of the appellant and as there is no cogent
evidence
that the payments were made about any obligation of the appellant
pursuant to the suite of contracts. The recipients were
unjustly
enriched by the amount each received. They bore an onus to establish
that they were not enriched. They failed to discharge
that onus.
[
39] The
counterclaim was founded on an obligation alleged to arise from the
shareholders agreement. In fact no such obligation is
to be found
there. It is however to be found in the sale agreements which provide
for the appellant to deal with monies and make
adjustments to the
loan account of Goosen. In my view on the probabilities the contracts
show a tacit or implied obligation to
account for the conduct of the
appellant in dealing with moneys due to Goosen which it had in its
control and which in due course
were to be dealt with by of
calculating a final amount due to Goosen. See:
Doyle
v Fleet
Motors.
The evidence was wide ranging and encompassed all issues concerning
this claim as if it had been formulated correctly In these
circumstances it is proper in my view to deal with it as if it had
been pleaded that the obligation arose from the suite of contracts.
[40] Goosen is
entitled to an accounting and the usual accompanying relief. It
follows that the appeal against the order made against
the second
respondent fails.
[
41] The
time spent on that portion of the appeal in which the appellant was
unsuccessful was insignificant and in my view the appellant
which has
been substantially successful is entitled to the costs of the appeal.
[
42] In
the circumstances I make the following order:
The appeal against the order dismissing the claims against the first
second third and fourth respondents is upheld. The first
second
third and fourth respondents are to jointly and severally pay the
costs of the appeal.
The
following
order is substituted for paragraph 1 of the order made by Tshiqi J:
“
A. Judgment
is granted against the first defendant for:
Payment of the amount of
R1
512 786, 52.
Interest on the aforesaid amount
from the date of summons being 21 January 2003 to date of payment at
the rate of 15, 5% per annum.
B. Judgment is granted against
the second defendant for:
1. Payment of the amount of
R1
214 018, 65.
2. Interest on the aforesaid
amount from the date of summons being 21 January 2003 to date of
payment at the rate of 15, 5% per
annum.
C. Judgment is granted against
the third defendant for:
Payment of the sum of R110 000.00;
Interest on the said amount
from date of issue of summons being 21 January 2003 to date of
payment at the rate of 15, 5% per
annum.
D. Judgment is granted against
the fourth defendant for:
1 Payment of the sum of R188
767.87;
2 Interest on the said amount
from date of issue of summons being 21 January 2003 to date of
payment at the rate of 15,5% per
annum.
E The liability of each defendant is joint and several with each
other defendant.
F Judgment is granted against the
first second third and fourth defendants jointly and severally for
the costs of suit.”
The appeal against the order made against the second respondent in
paragraph 2 of the order made by Tshiqi J is dismissed.
_____________________________
C.G. LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
I
agree: _____________________________
H. MAYAT
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
I agree: _____________________________
P. COPPIN
JUDGE
OF THE SOUTH GAUTENG
HIGH COURT,
JOHANNESBURG
Counsel for Applicant :S. L.
Joseph SC
Attorneys for
Applicant :Bouwer, Kobeli & Morabe
Counsel for 1
st
Respondent :E. F. Dippenaar SC
Attorneys for 1
st
Respondent :Webber Wentzel
Counsel for 2
nd
to 4
th
Respondent :
Attorneys for 2
nd
to 4
th
Respondent :Ramsay Webber
Date of hearing :10 August
2010
Date of judgment :