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[2010] ZAGPPHC 593
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Debanath v Zwane (4171/2007) [2010] ZAGPPHC 593 (24 March 2010)
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Certain
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO:
4171/2007
DATE:
24 MARCH 2010
In the matter
between
UPAL CHANDRA
DEBANATH
.........................................................................................................
Plaintiff
and
SAMUEL DEMOCRACY
ZWANE
................................................................................................
Defendant
JUDGMENT
Ismail AJ;
[1] The plaintiff
instituted proceedings against the defendant wherein he sought an
order that the Defendant pays the sum of R300
000-00 together with
interest thereon at a rate of 15,5% per annum from 1 March 2006 to
date of payment. The plaintiff also sought
an order for the costs of
suit.
[2]
The Plaintiffs action is based on an oral agreement which was reached
between himself and the defendant during December 2005.
In terms of
which the defendant sold to the plaintiff who purchased the goodwill
in the business known as ‘Moonlight' [hereinafter
referred to
as the business] .The purchase price of R300 000-00 for the business
was paid in installments by the plaintiff to the
defendant. The final
payment was due by no later than the end of February 2006.
Upon payment of the
purchase price the defendant undertook to conclude a lease agreement
with the plaintiff in respect of the business
situated at 2 Laingnek
Street Volksrust, Mpumalanga.
The trial
[3] It is common
cause that the amount of R300 000,00 was paid by the plaintiff to the
defendant during the period December 2005
and February 2006, however,
the defendant alleges that the amount was paid in respect of
equipment which the defendant purchased
on behalf of the plaintiff.
[4] Plaintiff called
Mr Kekana as a witness. Mr Kekana corroborated the plaintiff’s
version that he accompanied the plaintiff
to the defendant’s
house and that the plaintiff handed over the sum of R40 000-00 to the
defendant. The payment related to
the purchase of the business
Moonlight. Mr Kekana also testified that he accompanied the plaintiff
to the business Moonlight.
[5] The defendant
relied upon a Cash Sale document which is contained at page 12 of the
bundle A. It would be prudent for me to
incorporate this document in
the judgment. The document appears hereunder:
HARRIS RICHARD
JACOBUS VAN DER MERWE ERMELO
(hereinafter called
the SELLER)
CASH
SALE
.......................................................................................................
Invoice
No. 01
Customer
Name
Upal
Chandra Debenath
….................................................................
Date
20- Jan -2006
Address
Warm
Bath
__
…..............................................................................
Rep
Harris
I
D No
6[...]
…...............................................................................................
Acc
no
Phone
..............................................................................................................
Tel
No.
Description
.......................
Quantity
............................
Unit
...................
Total
Amount
…
.................................................................................
Price
Set of super Market
shelves
...........................................
01
.................................
16
000-00
...............
16
000-00
2.4
X 2.4 Cold room
deep
freezer
...................................
01
…...........................
40
000-00
...............
40 000-00
Microwave
stove
...........................
01
..................................
4
000-00
.................
4 000-00
Wall display
fridge
........................
02
.................................
2
500-00
.................
5 000-00
Fish
Freyer
.....................................
01
................................
5
000-00
.................
5 000-00
Stove Meat
freyer
..........................
01
................................
5
000-00
.................
5 000-00
Computer
Counter
........................
02
...............................
5
000-00
...................
5 000-00
Fish Freyer
canope
.......................
01
...............................
6
000-00
...................
6 000-00
Counter
Fridge
..............................
01
...............................
7
500-00
...................
7 500-00
TOTAL
...............................................................
287
500-00
VAT
14%
…........................................................
40
250-00
GRAND
TOTAL
...............................................
327
750-00
Name of equipment
receiver: Asad
Date: 20-01-06
Signature:
[6] The plaintiff
denied that he purchased the items appearing on the invoice reflected
above. Mr Zwane, the defendant, on the other
hand testified that the
amount of R300 000-00 which he received from the plaintiff was used
in order to purchase the equipment
from Mr van der Merwe. This
equipment was received by Asad who he alleged was the plaintiff’s
partner. The plaintiff denied
knowing Asad and he also denied that
Asad was his partner.
[7] The defendant
called a witness, Mr Greyling, the plaintiff’s erstwhile
attorney to testify. Mr Greyling in response to
a question from the
court stated that he did not have the permission from his former
client to testify. This aspect will be dealt
with later in this
judgment under the heading of privilege.
[8]
Mr Greyling testified that he wrote a letter to the defendant which
appears at page 9 of the bundle. The gist of the letter
being that
the plaintiff paid in total the sum of R300 000 for movable property
as set out in an annexure which was attached. The
annexure being the
invoice referred to in paragraph 5
supra.
Mr
Greyling denied that the plaintiff instructed him that the amount was
for the purchase of the business. Mr Omar during cross-
examination
of Mr Greyling requested to see the latter’s consultation
notes. Mr Sullivan objected to Mr Omar viewing the
notes. Mr Greyling
was subpoenaed by virtue of a subpoana
decus
tecum.
I
permitted Mr Omar to view the notes as Mr Greyling had no objection
to him perusing his notes. The Court adjourned in order to
allow Mr
Omar an opportunity to peruse the notes.
[9] When the matter
resumed defendant’s counsel sought an indulgence order to take
instructions from the defendant. At that
stage Mr Greyling was still
being cross -examined by Mr Omar.
[9] Mr Omar was of
the view that the court should permit him to complete his
cross-examination of Mr Greyling where after the matter
could stand
down for Mr Sullivan to take instructions. Mr Sullivan informed the
court that if the matter stood down it could curtail
proceedings.
[10] The court
granted Mr Sullivan an indulgence in order to discuss the matter with
his client. When the matter resumed Mr Sullivan
informed the court
that he was instructed to apply for a postponement. Mr Omar
strenuously objected to the request and I thought
that it would be
appropriate for Mr Omar to complete his cross-examination of Mr
Greyling before an application for a postponement
should be
entertained.
[11] The
cross-examination of Mr Greyling revealed that the plaintiff
instructed him that he had paid the sum of R300 000-00 for
the
purchase of a business from Mr Zwane. Mr Greyling could not explain
on what basis he wrote the letter contained at page 9 of
the bundle,
to the effect that the monies were paid to purchase equipment.
[12] Mr Sullivan
thereafter informed me that he could not proceed with the matter as
his instructing attorney’s mandate was
terminated.
[13] I enquired from
the defendant whether it was correct that he had terminated the
mandate of his legal team and Mr Zwane confirmed
that he had done so.
Mr Zwane thereafter requested that I postpone the matter. I gave him
an indulgence till the next day to get
his witness(es) to court with
a new legal team if he intended to use lawyers failing which the
matter would proceed without lawyers
representing him.
[14] The court was
informed by Mr Sullivan that the defendant was only intent to lead
two witnesses during the presentation of its
case, namely the
defendant and Mr Greyling.
[15] The following
day Mr Koos Pretorius from the Pretoria bar came to see me in
chambers accompanied by Mr Omar. He informed me
that he was
instructed to apply for a postponement in the matter and that he
required an indulgence until 10:45 as the affidavit
pertaining to the
postponement was being typed. I granted him the indulgence until
10:45 a.m.
[16] At 10:45 a.m I
went up to the court and waited until 11:10 for Mr Pretorius who only
arrived at 11:35 a.m. Mr Pretorius did
not have the courtesy of
informing the court nor Mr Omar that he was experiencing problems and
that he would be delayed. When the
matter resumed Mr Omar immediately
addressed the court regarding the discourtesy shown by Mr Pretorius
and he stated that he phoned
Mr Pretorius in order to find out why he
was not at court. His mobile phone was apparently on voice mail.
[17] Mr Pretorius
proceeded to address me on the issue of obtaining a postponement. I
gave a judgment whereby the application for
a postponement was
dismissed.
[18] Mr Pretorius
thereafter sought permission to withdraw from the matter as his
instructions were to merely seek a postponement.
[19] I than
explained to Mr Zwane what his rights were and the latter closed the
defendant’s case.
Evaluation of the
Evidence
[20]
I am confronted with two mutually destructive versions in this
matter. It is trite that in such a situation the court should
follow
the approach laid down by Wessels JA in
National
Employers Mutual General Insurance Association v Gany
19931
AD 187 at 199 where the learned judge stated:
“
where
there are two stories mutually destructive, before the
onus
is discharged, the
Court must be satisfied upon adequate grounds that the story of the
litigant upon whom the
onus
rests is the true
version and the other false. It is not enough to say that the story
told by Clark is not satisfactory in every
respect. ”
Coetzee
J in
African Eagle
Life assurance Co Ltd v Cainer
1980
(2) SA 234
(W) at 237 H-238 B referring to the
Gany
matter
stated:
It
is frequently said that the dictum in the
Gany
case
does not apply to civil cases because of the omission of the learned
Judge to have regard to the measure of proof in civil
cases being on
a balance of probabilities. But the criticism is invalid because,
unless suitably qualified, it confuses proof with
the measure of
proof. Where there is no probability there is simply no proof of
anything (regardless of the measure by which you
measure it) unless
you believe one person and disbelieve the other. Until then the
chances of it being black or white remain exactly
evenly balanced”
[21] The plaintiff
and his witness corroborated each other. Mr Greyling the defendant’s
witness proverbially shot the defendant’s
case in the the foot.
He confirmed that the plaintiff came to see him and advised him that
he purchased a business from the defendant.
See his notes exhibits C1
and C2. This prompted Mr Sullivan to seek an indulgence and he stated
to the court that the indulgence
would curtail proceedings. One need
not be a rocket scientist to conclude that Mr Sullivan realized that
Mr Greyling’s concession
during cross-examination sounded the
death knell to the defendant’s case. The interlude during the
cross-examination of Mr
Greyling set in motion a train of events,
namely:
1. Mr Sullivan
unexpectedly seeking a postponement;
2. the termination
of Mr Sullivan’s mandate;
3. the appointment
of Mr Pretorius to seek a postponement
[21] Mr Zwane did
not impress me as a good witness. He deliberately avoided simple and
straightforward questions which were put
to him. Many questions had
to be repeated several times before he would answer questions. This
was in spite of him understanding
English and having had the benefit
of the question being interpreted to him in Zulu. When he addressed
the court I was not at all
surprised at his fluency in the English
language. He is a successful businessman who is not a stranger to
using lawyers to conclude
business deals on his behalf. However, when
the amount of R300 000,00 was given to him this was not recorded into
writing nor was
the purchase for which this amount was intended for.
[22] Had the monies
been for equipment as he alleges one wonders why he did not hand over
equipment to the value of R300 000-00
to the plaintiff and retain
equipment for the balance of R27 000,00 in his possession until the
plaintiff paid him that amount.
He could have kept the meat freyer;
fish freyer, computer counter and the counter fridge amounting to R27
500-00 as security for
the balance due to him.
Attoney Client
Privilege
[23]
The writers Zeffert and Paizes in their book
The
South African Law Evidence
2
nd
edition at pages 647 et seq deal with the issue of privilege.
In
S v
Nkata and
Others
1990
(4) SA 250
(A|) at 255 l-J
“
The
rule is based on public policy and regarded as fundamental to the
proper functioning of our legal system. (Cf S
v
Safatsa and Others
1988
(1) SA 868
at 885D-886G.) Wigmore (
supra
at
para 2291) points out that:
'In order to promote
freedom of consultation of legal advisers by clients, the
apprehension of compelled disclosure by the legal
advisers must be
removed, hence the law must prohibit such disclosure except on the
clients’ consent’
[24]
In
Marais v Smith
2000
(2) SA 924
(W) the court held that a witness brought to court by a
subpoena
duces
tecum
in
order to produce documents cannot refuse to testify. He or she must
claim the privilege and set out the grounds supporting it.
[25]
In this matter Mr Greyling came to court with his file and did not
raise the issue of privilege. The court asked him whether
he
discussed this with his client, the plaintiff, and he responded
negatively. “As regards a legal adviser, it is his or
her duty
to claim the privilege; but when the legal adviser does so (or when
he or she waives the privilege) he or she is acting
for the client
and not in his or her own right.”
The
Law of South Africa, Joubert
2
nd
edition vol 9 [Lawsa].
See:
Bank of Lisbon & S
Ltd v Tandrien Beleggings (Pty)Ltd
(2)
1983 (2) SA 626
(W)
Mr Omar at that
stage indicated that he was waiving privilege. Up to that point in
time Mr Greyling did not raise the issue of privilege
notwithstanding
him understanding and doctrine.
[26] Mr Omar
submitted that I should refer this matter to the Law Society of the
Northern Provinces [LSNP] in order for them to
investigate the
conduct of Mr Greyling on two grounds:
(i) that he did not
canvass the aspect of privilege with his erstwhile client;
(ii) that Mr
Greyling did not carry out the mandate of his client and that he
wrote the letter (contained at page 9 of the bundle)
without
reference to his hand written notes and instructions.
Mr Greyling
responded to the defendant’s attorneys letter without referring
to his instructions, which the plaintiff gave
him.
In the light of Mr
Greyling’s evidence before me I am duty bound to report Mr
Greyling to LSNP in order for the Society to
determine whether Mr
Greylings conduct was appropriate or not.
[27]
This judgment is not intended to be one relating to the conduct of
legal practitioners, unfortunately these problems manifested
during
the trial and they need to be ventilated. I was once again during
arguments before me requested to report the conduct of
adv Pretorius
to the bar council. The reason for doing so appears in paragraph 16
supra.
[28] I might add
that where a practitioner receives instructions belatedly as in this
case he or she should ensure that they are
prepared to launch
whatsoever application they intend to timeously and not utilize court
time in order to prepare their applications.
In this matter as a
consequence of the conduct of Mr Pretorius the court started 1 hour
and 45 minutes beyond the appointed court
time.
[29] Mr Omar is a
feisty and persistent practitioner, however, in this matter I believe
that he was perfectly entitled to criticize
his opponent for the
delay and indifference shown towards him and the court.
Costs
[30] Mr Omar in his
address submitted that the court should it find for the plaintiff
should award attorney and client costs against
the defendant. He
premised his argument upon the basis that Mr Greyling’s
evidence damaged the defendant’s case materially
and that the
defendant wasted the court’s time thereafter by seeking a
postponement. I do not agree with plaintiff’s
representative
that I should award costs as on the scale suggested.
The defendant was
entitled to defend the action and there was nothing which dictates
awarding costs on a punitive scale.
I am however, of the
view that the defendant should be ordered to pay the costs relating
to the application to have a document which
was not discovered
admitted.
[31]
I am satisfied that the plaintiff discharged the
onus
which
he had to meet on a balance of probabilities. Booth the plaintiff and
Mr Kekana impressed me as good and honest witnesses.
[32] In the
circumstances I make the following order:
(1) the defendant is
ordered to pay to the plaintiff the sum of R300 000-00;
(2) the defendant is
ordered to pay interest on the amount of R300 000-00 at a rate of
15,5% per annum
(3) the defendant is
ordered to pay the cost of the application for admissibility of the
document not discovered;
(4) defendant is
ordered to pay the plaintiff’s taxed party and party cost of
the trial;
(5) the LSNP is
ordered to look into the conduct of Mr Greyling regarding the
question of attorney client privilege and his failure
to carryout his
clients mandate;
(6) Mr Pretorius
failure to attend court at the appointed time is reported to the Bar
Council of Pretoria.
Appearances:
For
the plaintiff
:
Mr Z Omar Attorneys, Springs
For the
Defendant:
Adv
M Sullivan instructed by De Beer and Van
Heerden
attorneys - Pretoria.
- thereafter:
Defendant in person
Judgment delivered
on the: 24th March 2010.