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[2021] ZAGPJHC 517
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Mashegoane v ABSA Bank Limited and Another (41715/2015) [2021] ZAGPJHC 517 (5 March 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 41715/2015
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
5/03/2021
In
the matter between:
GODFREY
KGOBISI MASHEGOANE
Plaintiff
and
ABSA
BANK LIMITED
First Defendant
PATRICK
SHAIN
LAMENT
Second Defendant
JUDGMENT
SOUTHWOOD, AJ:
1.
This judgment concerns a special plea of prescription raised
by the
first defendant, ABSA Bank Limited (‘
ABSA
’).
2.
Before dealing with the merits of the special plea, I record
that the
plaintiff (‘
Mr Mashegoane
’) did not appear and I
continued with the hearing of the special plea in his absence. My
reasons therefor are set out below.
A.
Mr Mashegoane’s absence
3.
The combined summons is dated 19 November 2015 and signed by
R Masilo
of R Masilo Attorneys. From at least that date until 27 January 2021,
R Masilo Attorneys were the attorneys of record
for Mr Mashegoane.
4.
The matter was first set down for trial on 1
August 2019.
On 7 August 2019, an order was made in terms of Rule 33(4) directing
that ABSA’s special plea of prescription
would be decided first
and staying the remainder of the issues in the action. The matter was
then set down for hearing on 20 April
2020 for determination of the
special plea. In terms of the Judge President’s Practice
Directive of 24 April 2020 consequent
on the national lockdown, all
trial cases set down between 14 April to 30 April 2020 were
automatically removed from the roll and
re-enrolled. Matters enrolled
on 20 April 2020 were re-enrolled for hearing on 25 June 2020. By
agreement between Mr Mashegoane
and ABSA, the matter was removed from
the roll.
5.
On 12 November 2020, ABSA’s attorneys served a notice
of set
down for the trial on 1 February 2021 on Mr Mashegoane’s
attorneys.
6.
Absent any indication that Mr Mashegoane was not aware of the
date
for this hearing, such service constituted compliance with the rules.
7.
On 27 January 2021, R Masilo Attorneys served a notice of withdrawal
as attorneys of record for Mr Mashegoane on attorneys representing
ABSA and the second defendant (‘
Mr Lament
’). The
notice indicated Mr Mashegoane’s contact details as:
7.1.
street address: [....] N[....] Street, Mhluzi Location, Ext 4,
Middelburg, Mpumalanga;
7.2.
cellphone number: [....]; and
7.3.
postal address: PO Box 216, Skhukhune.
8.
The notice did not reflect compliance with Rule 16(4)(a) of
the
Uniform Rules of Court which requires notice to
inter alia
Mr
Mashegoane; and Rule 16(4)(d) which requires that Mr Mashegoane be
informed of his obligations in terms of Rule 16(4)(b).
9.
R Masilo Attorneys were, accordingly, requested, through my
registrar, to upload onto CaseLines, proof that Rule 16(4)(a) and
Rule 16(4)(d) read with (b) had been complied with. In response
to
the request, a notice, dated 27 January 2021, and titled, Notice in
terms of Rule 16(4)(d) read with Rule 16(4)(b), was uploaded
onto
CaseLines. The notice reiterated the withdrawal of R Masilo Attorneys
as Mr Mashegoane’s attorneys and informed Mr Mashegoane
of his
obligations in terms of Rule 16(4)(b). The notice indicated that it
would be served on the defendants’ attorneys via
email.
10.
Accompanying the notice, was a service affidavit deposed to by one Mr
de Heus,
an attorney employed by R Masilo Attorneys.
11.
He indicated that both notices of withdrawal had been served on Mr
Mashegoane
by registered post sent on 29 January 2021 to Mr
Mashegoane’s address at [....] N[....] Street, Middelburg. It
is doubtful
whether Mr Mashegoane would have received these notices
before the hearing on 1 February 2021.
12.
However, Mr de Heus also explained why his firm had withdrawn.
13.
Mr de Heus indicated that from November 2020 until the withdrawal of
his firm
on 27 January 2021, R Masilo Attorneys had experienced great
difficulty getting hold of Mr Mashegoane in order to consult and
prepare
for the trial.
14.
In November 2020, R Masilo Attorneys contacted Mr Mashegoane on his
cellphone
number ([....]) in order to consult with him in preparation
for the hearing. Mr Mashegoane undertook to confirm a date for
consultation
in early December 2020. This did not occur.
15.
In the beginning of January 2021, R Masilo Attorneys contacted Mr
Mashegoane
again on his cellphone and arranged a consultation at the
firm’s offices on 18 January 2021. Mr Mashegoane failed to
attend
the consultation. Mr de Heus states that he also tried to
contact Mr Mashegoane by calling his mother and two brothers. They
indicated
that Mr Mashegoane was not living at the address given to
the firm and they refused to disclose his whereabouts.
16.
On 26 January 2021, Mr de Heus was contacted by a Mr Masenya from
Masenya Inc,
shortly before emailing him a letter, dated 2 December
2020, stating that Masenya Inc. was acting for Mr Mashegoane and
requesting
‘
a full account of what you have done since March
2015 to date hereof
’ in relation to Mr Mashegoane’s
claim against ABSA and Mr Lament. Masenya Inc has never entered
appearance in this
matter as Mr Mashegoane’s attorneys.
17.
On 27 January 2021, Mr de Heus addressed a letter to Mr Mashegoane at
his street
address ([....] N[....] Street, Middelburg) and his postal
address (PO Box 216, Sekhukhune) to inform him of the firm’s
withdrawal
as his attorneys. The letter goes on to state, ‘
You
ignored our calls and messages notwithstanding the fact that you knew
it was urgent and that there were looming court proceedings
on 1
February 2021. We would strongly advise you to attend court on 1
February 2021 in order to address the judge alternatively
to appoint
another attorney to represent you at the proceedings in order to
avoid the proceedings continuing in your absence
’. The
letter was also sent by email to Mr Masenya on 27 January 2021.
18.
On 29 January 2021, my registrar sent my directive regarding the
virtual conduct
of the hearing and the Microsoft Teams link to the
defendants’ attorneys via email. The directive commences by
confirming
that the matter will be heard on 1 February 2021 at 10h00.
My registrar also sent a photograph of the directive to Mr Mashegoane
on cellphone number [....]. She requested Mr Mashegoane to indicate
if he would need assistance from the court to access the online
link
or to provide his email address so that she could email him the
online link.
19.
On the same date, an affidavit was deposed to by one Ayanda Lungani,
an attorney
in the employ of ABSA’s attorneys. She indicated
that, on 28 January 2021, a text was sent to Mr Mashegoane’s
last
known cellphone number, as indicated in the notice of
withdrawal, in which ABSA’s attorneys confirmed the withdrawal
of Mr
Mashegoane’s attorneys, the trial date being 1 February
2021, the court address, and that the matter would be heard
virtually.
20.
She also alleged that, on 29 January 2021, a text was sent to Mr
Mashegoane
containing the Microsoft Teams’ link for the hearing
as well as a copy of my directive relating to the conduct of the
trial
virtually over CaseLines and Microsoft Teams and the
safe-guarding of witness evidence.
21.
In regard to Mr Mashegoane’s last known physical address, a
return of
service is attached to Ms Lungani’s affidavit. The
return indicates that on 29 January 2021, the sheriff in Middelburg
served
ABSA’s answering affidavit in a joinder application
brought by Mr Mashegoane, by affixing it to the principal door at
[....]
N[....] street, Mhluzi Extension 4, Middleburg, after Mr
Mashegoane refused to accept service and informed the sheriff to send
him a copy of the document via WhatsApp.
22.
My registrar attempted to speak to Mr Mashegoane on multiple
occasions.
23.
My registrar attempted to speak to Mr Mashegoane on his cellphone on
28 January
2021 to confirm that he was aware of the hearing
commencing on 1 February 2021 and that the hearing would proceed
virtually. No-one
answered the first two calls. A third call was
answered. My registrar indicated who she was and was then interrupted
with ‘
Sorry madam, Godfrey isn’t here
’.
24.
On 29 January 2021, my registrar made numerous attempts to speak to
Mr Mashegoane
on his cellphone. The calls were not answered or
terminated, or the phone was turned off. There was no option to leave
a voice
message. She, thereafter, sent the text, referred to above,
as well as a text indicating who she was and that the trial would
commence
on 1 February at 10h00.
25.
On 1 February 2021, prior to the hearing, my registrar made various
attempts
to contact Mr Mashegoane, to no avail. She then contacted Mr
Masenya and informed him that she was experiencing difficulty
speaking
to Mr Mashegoane. She asked whether he was able to contact
Mr Mashegoane and if he would assist her by asking Mr Mashegoane to
take her call. Mr Masenya agreed and shortly thereafter phoned her to
inform her that he had spoken to Mr Mashegoane and that she
should
phone Mr Mashegoane as he would take the call.
26.
My registrar immediately did so. Mr Mashegoane answered her call and
confirmed
that he had received the text, sent on 29 January 2021.
When asked if he would be accessing the trial remotely or make use of
the
court’s resources, he indicated that he was in a rural
village in Limpopo and would not be attending court nor did he have
the resources to use the Microsoft Teams link.
27.
My registrar informed me that the voice of the man that she spoke to
on 1 February
was the same as the voice of the man that she spoke to
on 28 January 2021.
28.
In view of the aforegoing, I am satisfied that Mr Mashegoane was
aware of the
trial date, that his attorneys had withdrawn and that he
should attend the hearing. His absence is intentional. ABSA indicated
that it wished to proceed, and the hearing proceeded in the absence
of Mr Mashegoane.
B.
The first defendant’s legal point
29.
After leading evidence and closing his case on the issue of
prescription, ABSA’s
counsel, in argument, raised what he
termed a legal point, namely whether the claim for a statement and
debatement of account is
competent against ABSA.
30.
Given that I am seized with the separated issue of prescription only,
I have
declined to determine this point. I turn now to the special
plea.
C.
The special plea
31.
Mr Mashegoane claimed against the defendants, jointly and severally,
the one
paying the other to be absolved:
31.1.
payment of the sum of R1 265 700.00;
31.2.
that ABSA be ordered to account to Mr Mashegoane fully from April
2005 to June 2011 in relation to all bank accounts and statements
of
Mr Mashegoane and Mr Lament held by it within 15 days of the court
order;
31.3.
payments of further damages as determined and proved after debatement
of accounts; and
31.4.
interest at 9.5% [per annum] on the amounts to be paid from date of
judgment to date of final payment.
32.
ABSA framed its special plea as follows:
‘
1.
In the plaintiff’s action and particulars of claim, the
plaintiff claims as follows:
1.1
payment of the sum of R1 265 700.00;
1.2
an order that the first defendant be ordered to account to the
plaintiff fully from April 2005 to June 2011 in relation to all bank
statements and statements of the plaintiff and the second defendant
held by the plaintiff; and
1.3
payments of “further damages as determined and proved
after debatement of accounts”.
2
The alleged debts and/or claims that form the subject matter
of the plaintiff’s action and particulars of claim vis-à-vis
the first defendant arose and/or became due:
2.1
on or during 2010, alternatively
2.2
on or during November 2012, further alternatively
2.3
on a date prior to, but no later than, 24 November 2012
alternatively 3 December 2012.
3
The plaintiffs
(
sic
)
action as against the first
defendant was commenced by the issuing of the plaintiff’s
action and thereafter service of the
plaintiffs
(
sic
)
summons and particulars of claim on the first defendant on a date
on or after 4 December 2015; being a date more than three years
after
the date(s) alleged in paragraph 2 above.
4
In the premise
(
sic
)
, and in terms of
section
11(d)
of the
Prescription Act, No. 68 of 1969
, any indebtedness
allegedly owed by the first defendant and as claimed by the plaintiff
in his action and particulars of claim
has become prescribed.
’
33.
Section
11(d)
of the
Prescription Act
[1
]
provides:
‘
The
periods of prescription of debts shall be the following: … (d)
save where an Act of Parliament provides otherwise, three
years in
respect of any other debt
’.
34.
Sections 12(1)
and (3) of the
Prescription Act provide
as follows:
‘
(1)
Subject to the provisions of subsections (2), (3), and
(4), prescription shall commence to run as soon as the debt
is due…
(3)
A debt shall not be deemed to be due until the
creditor has knowledge of the identity of the debtor and of
the facts
from which the debt arises: Provided that a creditor shall be deemed
to have such knowledge if he could acquire it by
exercising
reasonable care’.
35.
Mr
Mashegoane did not replicate. Accordingly, ABSA bore the onus of
proving all the facts underlying the special plea.
[2]
36.
In particular, ABSA was required to establish:
36.1.
that the debts became due for the purposes of
section 12(1)
of the
Prescription Act on
a date in excess of three years prior to the
interruption of prescription (4 December 2015, the date of service of
the combined
summons on ABSA, as evidenced by the return of service);
36.2.
the date when Mr Mashegoane acquired knowledge of the identity of the
debtor, and of the facts from which the alleged debts
arose, as
contemplated by
section 12(3)
of the
Prescription Act.
37.
The
first issue to be determined is whether the relief claimed
constitutes a debt.
38.
The
Prescription Act does
not define debt.
39.
ABSA’s
counsel referred me to
Off-Beat
Holiday Club
[3]
to contend that before an analysis can be undertaken as to whether
the claim constitutes a debt, it must first be established what
the
correct characterisation of the claim is.
[4]
40.
What this
means is that the relief sought must be compared to the narrow test
enunciated in
Escom
[5]
which held that a debt is anything which is owed or due; anything (as
money, goods or services) which one person is under obligation
to pay
or render to another.
[6]
41.
The test
was confirmed and explained in
Makate
[7]
which indicated that there is nothing in
Escom
that remotely suggests that a debt includes every obligation to do
something or refrain from doing something, apart from payment
or
delivery.
[8]
42.
ABSA’s contention that the claim, properly characterised, is
one of an
alleged theft/fraud/embezzlement of funds by Mr Lament from
Mr Mashegoane during the period 2005 to 2010 is misplaced. The
contention
fails to assess the claims in relation to the narrow test
in
Escom.
43.
Prayers 1 and 3 are claims for payment. Applying the narrow test,
these claims
constitute debts.
44.
Is the claim for the rendering of an account and debatement thereof a
debt?
45.
No authority was referred to dealing pertinently with this question.
46.
Instead, ABSA contended that there can be no doubt that the claim for
the rendering
of an account and debatement thereof concerns the
exercise of a personal right. However, as is clear from the judgments
in
Makate
and, thereafter, in
Off-Beat Holiday Club
,
not all such claims are debts.
47.
Does the claim for the rendering of an account and the debatement
thereof constitute
money, goods or services which one person is under
obligation to pay or render to another?
48.
In my view, the answer is no.
49.
Accordingly, the claim for the rendering of an account and debatement
thereof
is not a debt.
50.
Turning now
to the question whether the claims for payment in prayers 1 and 3 of
the particulars of claim have prescribed, in order
to establish the
facts in support of its special plea, ABSA relied on the evidence of
Mr Emile Scholtz, an employee of ABSA Insurance
and Financial
Advisors (‘
ABSA
Insurance
’),
and on the allegations made by Mr Mashegoane in his particulars of
claim and in his further particulars.
[9]
51.
Accordingly, it is necessary to consider Mr Mashegoane’s
allegations.
52.
In his particulars of claim, Mr Mashegoane alleges that:
52.1.
on/or about 2005, he won approximately R20 million by playing in the
National Lottery and deposited an amount of R18 million
into a bank
account held with the ABSA;
52.2.
ABSA advised Mr Mashegoane that it had instructed and allocated Mr
Lament, who is alleged to be employed by ABSA, to advise
and assist
Mr Mashegoane on how and where to invest his money to make maximum
profit and to build sustainable wealth for him;
52.3.
Mr Lament advised Mr Mashegoane that he would be investing in
different investment products with different institutions and
that he
required Mr Mashegoane to sign certain documents to enable him to
make such investments;
52.4.
Mr Mashegoane signed a myriad of documents. Most of the documents
were blank as Mr Lament had advised that he would ‘
fill the
document
’ on Mr Mashegoane’s behalf.
52.5.
Mr Lament advised Mr Masheogane that the investments would mature at
different times with the last of the investments maturing
in 2010, at
which date Mr Mashegoane could decide to invest further or withdraw
the proceeds;
52.6.
Mr Mashegoane received monthly income from these investments and in
varied amounts. He also made withdrawals for his personal
use
including buying property and vehicles;
52.7.
in 2011, Mr Mashegoane noticed that his monthly income had ceased. He
went to the bank to inquire about the investments which
were supposed
to have matured in 2010. Mr Lament informed him that the funds had
been depleted and that there was no money in his
account. He also
informed him that the investments would not be paying out as he had
sold or ceded them;
52.8.
Mr Mashegoane then lodged a complaint with ABSA. ABSA advised him, in
a letter dated 21 November 2012, that Mr Mashegoane
had sold or ceded
his investments and that he had received the proceeds with the result
that neither ABSA nor the investment companies
were liable to pay any
claims on those investments;
52.9.
Mr Mashegoane then laid a charge of fraud against Mr Lament, which
matter is still pending;
52.10.
as a result of the criminal investigation, Mr
Mashegoane learnt that
Mr Lament had not only sold his policies but had siphoned some of the
money in Mr Mashegoane’s bank
account into Mr Lament’s
own personal bank account without Mr Mashegoane’s knowledge or
permission;
52.11.
Mr Mashegoane is only aware of unlawful transfers
out of his account
between 2009 and 2011, in an amount of R1 265 700.00;
52.12.
Mr Mashegoane learnt of the pilfering of his
money from his account
by Mr Lament in May 2013;
52.13.
Mr Mashegoane only became aware of these acts
of dishonesty, fraud
and embezzlement during the investigation of the criminal case in
2014;
52.14.
ABSA was
mala fide
and/or negligent in failing to investigate
and find that Mr Lament was siphoning funds/money out of Mr
Mashegoane’s account
into Mr Lament’s personal account;
52.15.
Mr Mashegoane claims payment of the amount that
he is aware of being
transferred unlawfully out of his ABSA bank account into Mr Lament’s
bank account as well as any further
amounts that are discovered after
the rendering of an account and debatement thereof in relation to Mr
Mashegoane’s and Mr
Lament’s bank accounts.
53.
It is therefore clear that what Mr Mashegoane claims relates to
monies unlawfully
transferred out of his ABSA bank account into Mr
Lament’s bank account.
54.
This is confirmed in Mr Mashegoane’s further particulars, dated
10 July
2019. In these further particulars, he alleges that Mr
Lament’s acts of dishonesty, fraud and/or embezzlement consist
of
Mr Lament’s siphoning of money from his bank account and
that he discovered these acts during November 2012. He does, however,
indicate that he acquired this knowledge as a result of the fraud
investigation conducted by police. According to the particulars
of
claim, this would have been in May 2013 or in 2014.
55.
However, in response to a question as to when Mr Mashegoane first
learnt that
Mr Lament had sold his policies; siphoned some of the
money in his bank account; misappropriated some of his money;
unlawfully
transferred an amount of R1 265 700.00 into his
own account from Mr Mashegoane’s account; pilfered money from
Mr
Mashegoane’s account, Mr Mashegoane stated that he first
learnt of this during November 2012 and when the criminal
investigation
commenced in May 2015.
56.
Also, in his further particulars, Mr Mashegoane states that he became
aware
of Mr Lament’s acts of dishonesty; acts of fraud and acts
of embezzlement in January 2010 and, subsequently, 2012, when the
police commenced with the investigation.
57.
Turning to the evidence of Mr Scholtz, Mr Scholtz is employed and
was, at the
relevant time (i.e. between September to November 2012),
employed as a dispute resolution consultant by ABSA Insurance.
58.
Mr Scholtz’s evidence was that he had inherited Mr Mashegoane’s
complaint from his predecessor, one Pieter Swanepoel. This is the
complaint which Mr Mashegoane alleges that he lodged with ABSA
regarding his investments having been ceded.
59.
Mr Scholtz testified about his investigation which revealed that Mr
Mashegoane
had ceded his policies and received the proceeds thereof.
Mr Mashegoane, therefore, had no claims against either ABSA Insurance
or to any proceeds from the policies.
60.
The findings were sent to Mr Mashegoane, by post, in letters dated 7
and 21
November 2012, respectively.
61.
Mr Scholtz testified that he could not confirm that Mr Mashegoane had
received
the letters. He assumed that Mr Mashegoane had received the
letters because Mr Mashegoane had called him on his cellphone. He
concluded
that Mr Mashegoane could only have obtained his cell phone
number from the letters.
62.
Mr Scholtz did not indicate when he received the call from Mr
Mashegoane. Accordingly,
none of this evidence establishes when these
letters were received by Mr Mashegoane. In any event, given my view
that the claims
relate to the pilfering/siphoning of moneys from Mr
Mashegoane’s bank account, Mr Scholtz’s evidence is
irrelevant.
63.
ABSA contends that on Mr Mashegoane’s own version, he learnt of
the acts
of dishonesty/fraud/embezzlement in November 2012.
64.
As is clear from the allegations in the particulars of claim and the
further
particulars, referred to above, Mr Mashegoane does not have
one consistent version. If Mr Mashegoane proves that he only became
aware of the unauthorised transfers/pilfering/theft by Mr Lament out
of his bank account in May 2013 or in 2014 or in May 2015,
then the
claims have not prescribed.
65.
As a result, ABSA’s reliance on (some) of Mr Mashegoane’s
allegations
is misplaced.
66.
ABSA did not plead the date of attributed knowledge in its special
plea. However,
in the plea, ABSA pleads that, at all material times,
Mr Mashegoane would have acquired possession of or had access to the
relevant
bank account statements and that Mr Mashegoane, by
exercising reasonable care, could and would have acquired knowledge
of the alleged
debtors and the facts from which the alleged debt
rose.
67.
Given that the special plea was separated out, these allegations do
not form
part of the issue which I had to decide.
68.
If I am wrong in not taking these allegations into account, then, in
any event,
these allegations, if proved, do not establish that Mr
Mashegoane had the requisite knowledge. The bank statements may have
alerted
him that unlawful transfers were being made out of his
account but he would not necessarily have been apprised of the
identity
of the person effecting such transfers.
69.
In Mr Mashegoane’s particulars of claim, he alleges that he
only discovered
the identity of the pilferer when this was disclosed
to him by the police. The date of this disclosure is unclear, as
indicated
above.
70.
ABSA has failed to establish that Mr Mashegoane, by exercising
reasonable care,
could and would have acquired knowledge of the
alleged debtors and the facts from which the debt arose at a date
prior to 4 December
2012.
71.
In the premises, ABSA failed to discharge the onus of proving that Mr
Mashegoane’s
claims had prescribed.
ORDER
72.
The first defendant’s special plea is dismissed with costs.
F
SOUTHWOOD
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
defendants’ representatives by email and by uploading the
judgment onto CaseLines. The date of delivery of the judgment is
deemed to be 5 March 2021.
Date
of hearing:
1, 2 February
2021
Date
of judgment:
5 March 2021
Appearances
For
the plaintiff:
no appearance
Instructed
by:
For
the first defendant: M De
Oliveira
Instructed
by:
Lowndes Dlamini
[1]
68
of 1969
[2]
Masuku
v Mdlalose
1998 (1) SA 1
(SCA)
at 11D-E
[3]
Off-Beat
Holiday Club and Another v Sanbonani Holiday Spa Shareblock Limited
and Others
2017
(5) SA 9 (CC)
[4]
Off-Beat
Holiday Club
(
supra
)
at [33]
[5]
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Limited
1981
(3) SA 340
(A) (‘Escom’)
at
344F
[6]
Eskom
at
344F:
Off-Beat
Holiday Club
(
supra
)
at [49]
[7]
Makate
v Vodacom (Pty) Limited
2016
(4) SA 121 (CC)
[8]
Makate
(
supra
)
at [93]
[9]
See
the approach in
Masuku
(
supra
)