About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 608
|
|
Visser v De Villiers and Another (1853/09) [2010] ZAGPPHC 608 (18 May 2010)
THE
HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG
DIVISION)
CASE NO: 1853/09
DATE: 18 MAY 2010
In the matter
between:
VISSER, ANDRE
STEPHANUS
..........................................................................................................
Applicant
v
DE
VILLIERS. JOHAN DANIEL
….........................................................................................
First
respondent
DE
VILLIERS. ANGELIQUE
…...........................................................................................
Second
respondent
in re
DE
VILLIERS. JOHAN DANIEL
…...........................................................................................
First
Applicant
DE
VILLIERS. ANGELIQUE
…............................................................................................
Second
Applicant
V
VISSER,
ANDRE STEPHANUS
….........................................................................................
First
Respondent
X-PRESSNET-
INLAND
(PTY)
LTD
….............................................................................
Second
Respondent
C ORAM: EBERSOHN AJ
DATE HEARD:
14/5/2010
DATE JUDGMENT HANDED
DOWN: 18/5/2010
JUDGMENT IN
APPLICATION FOR LEAVE TO APPEAL
EBERSOHN AJ.
[1] The applicant
(whom will he referred hereinafter to as the "first respondent"
except in the quotation from the application
for leave to appeal)
applied for leave to appeal against the order made by the Court
against him. stating the following as the
proposed grounds of appeal
(the second respondent in the main matter is referred to for some
reason or other by the first respondent
as "third respondent”
therein):
a. the Applicant
wilfulk caused the deposit to be paid into his own account by giving
false information - in that he gave his private
bank account number
to the First and Second respondent without disclosing it was his
personal account: and
b. The Applicant
knew at the time he provided the information into which account the
money was to be paid that he was not entitled
to it more
particularly; and
c. The funds were to
be utilised to enable the Third Respondent to comply with the
requirements of the deed of sale.
d. The money were
earmarked to be paid into the account of the Third Respondent."
[2] Clause 1.1 of
the agreement of sale, annexure "C" to the founding
affidavit, which was amended, which fact is not
disputed by the first
respondent, after the amendment read as follows:
1.1
Cash of R1 million (ONE MILLION RAND)
to
be paid to
seller
directly
, this
offer and payment is subject to the conditions as contained in
paragraph 16 below
”
(Own
emphasis)
[3] Clause 1.4 of
the deed of sale reads as follows:
"1.4 The
Seller warrants that the purchase price is sufficient to cover the
outstanding bond /s, Agent’s commission,
rates and taxes
electricity and water and other imposts levied by the local
municipality."
[4] Mr. Smith, who
appeared for the first respondent, argued that the purchase price
would have been sufficient if it was not for
the R1M which was paid
into the monev market bank account of the first respondent and when
the RIM was paid into the money market
bank account of the first
respondent the group of companies which belonged to the first
respondent was negotiating a deal with
Nedbank to refinance the group
and that the RIM would thereafter have been paid into the bond bank
account of the second respondent
so as to enable the bond to be
cancelled and transfer of the purchased property could be registered
into the name of the applicants.
It is common cause, so went Mr.
Smith's argument, that the group's refinancing deal did not
materialise and the first respondent
did not have the means to pa\
back the R1 M to the second respondent.
[5] The first
respondent alleged in paragraph 9.4 of the answering affidavit that
upon enquiring from Nedbank. the outstanding amount
on the bond was
R1.6 million, but this version was suddenly thrown into disarray when
at a later stage (although not substantially
later) Nedbank
apparently indicated that amount owing on the bond was R2.4 million.
(Paragraph 9.4 of the answering affidavit.)
No explanations was
provided for this R800 000.00 discrepancy and this further
allegations was completely implausible and left
unexplained. This was
a further indication that the first respondent was not candid with
the Court.
[6] But for the bald
allegations of the first respondent in that regard there is no proof
attached to the answering papers to prove
the "group deal"
and accordingly these allegations does not hold eater and in any case
is not a defence to the applicants'
case.
[7] When
requested by the Court to address the Court on the provisions of
section 226 of the Companies Act, Mr. Smith argued
that the first
respondent's case was that he utilised the RIM to pay die expenses of
the first respondent's group of companies
including that of the
second respondent. The first respondent in fact made the bare
allegation in paragraph 9.1 I of the answering
affidavit namely “at
that stage 1 was dispersing funds continuously for the group of
companies” clearly from his own
money market bank account. No
averment, however, was made that he was authorised to mix the funds
of the various companies with
his own funds in his personal money
market loan account, nor was any written proof in the form of a
resolution and/or exnacts from
minutes of a meeting of the second
respondent's board of directors annexed to prove this glaringly
improbable allegation.
[8] It is common
cause that the RIM deposit the applicants had to pay in terms of the
deed of sale was transferred on the 1 Oth
March 2008 into the money
market account of the first respondent, instead of that of the
seller, namely the second respondent.
This was done because the first
respondent gave the account number to Thomas to give to the estate
agent which in turn gave it
to the applicants.
[9] Contrary to Mr.
Smith's said argument in Court the first respondent, quite
surprisingly, attempted to persuade this Conn in
his answering
affidavit that "the true” reason why the applicants were
provided with the first respondent’s priv
ate money market
account number into which to transfer the RIM deposit was:-
“
...as
the
group of companies
was then awaiting the opening of the new accounts funding promised by
Ned bank and as far as I w as aw are the
Second Respondent had no
banking account into which to deposit the funds, 1 furnished him with
my private money market banking
account details....”.
(Answering
affidavit para 9.11).
This
feeble reason is most improbable in the light of.
mieralia.
the
following:
a) On the first
respondent's own version he purchased shares in a group of companies
during 2007, and the second respondent was
one of those companies.
The shares were purchased for an amount of R6 million. The first
respondent expected this Court to believe
that the companies forming
a group of companies to the value of R6 million would not have bank
accounts.
b) The first
respondent provided no details as to why the second respondent did
not have it's own bank account number and why it
should take longer
than a matter of hours to open a new bank account for the second
respondent if it had a bank account which was
closed.
c) The first
respondent alleged that the group had a fleet of trucks and other
vehicles which could be refinanced for an amount
of R20 million
additional cash (Answering affidavit paragraph 9.6) but did not state
and or explain why it did not have a bank
account, or why it could
not obtain a bank account in time.
d) If the rather
improbable version was true that there was no bank account, no
explanation was provided why the deposit could not
be paid into the
trust account of the second respondent's attorneys.
[10] The printouts
relating to the first respondent's money market bank account relative
to that date and the month thereafter,
were attached to the founding
affidavit as annexures "FI". "F2” and "F3".
Regarding these printouts
the first respondent stated in paragraph 19
of his answering affidavit, which passage is to be found on page 76
of the record,
the following:
“
a
simple perusal of annexure “F” will reveal the manner in
which the monies in my personal account were disbursed and
the
numerous payments for the same made on behalf of companies in the
Ex-pressnet Group”.
[11] The statements
"F" reflected an opening balance of R90 080,12 on the 10th
March 2008 to which the RIM was added on
that date. The first payment
from this bank account was made on the 17th March 2008 and subsequent
payments were made from the
account up to the 12th April 2008 when
the RIM and part of the opening balance of R90 080,12, was expended,
leaving a balance of
R76. 753.18 (taking in account only one other
deposit which was made on the account during this period, namely R20
000.00 on die
9th April 2008:
17
March
....................
First Auto Fuel
74098
...........................
R200
000,00
19
March
...................
Bentleys Suit
Andre Visser
......................
R
6.219.00
26
March
...................
Xpressnetbloemacc
A visser Xpressne R200 000,00
27 March
…...........
Genif Waarman
Hzepopx
...........................
R 2
514,00
27
March
................
Gorge
TripXzfbh
........................................
R
4 722,00
28
March
.................
Merino Stop
X-press Diesel
.....................
R 40
000,00
28
March
................
Pieter Kruger
George 0144fxz
....................
R 7
629,00
28
March
................
Accomm Pieter K
204313
..........................
R 1
100.70
28
March
................
Av
.............................................................
R
20 000,00
28 March
…..........
Xpa
.............................................................
R
80 825.17
1
April
....................
Loan A.S.
Visser
.........................................
R
7 024,00
3
April
....................
Av
.............................................................
R
60 000,00
3
April
....................
Loan A.
Visser
.........................................
R200
000.00
5
April
...................
Cpx
PetrolXpresnet Diesel
........................
R
20 000,00
8
April
....................
Alarm Lukas
Rand A.S. Visser
................
R 15
000,00
8
April
....................
Merino I
StopXpressnet diesel
.................
R
30 000,00
8
April
....................
A.S. Visser
Loan
.....................................
R
100 000,00
8
April
....................
A.S. Visser
Loan
......................................
R
25 000,00
8
April
....................
Spartan
True
............................................
R
46 000,00
11
April
..................
Bollie Diesel Av
Xpressnet
.......................
R 3
124,18
11
April
..................
Loan A.S. Visser
Xpressnet audit
...........
R 31 700,55
12
April
.................
AlarmLukas Rand
A.S. Visser
................
R 20 556,60
12
April
.................
Personal Trainer
A.S. Visser
.....................
R 2
000,00
12
April
.................
A.S. Visser
Loan
.....................................
R
50 000,00
12
April
...........
Merino I Stop X pressnet
Diesel
................
R 30 000,00
( There was a small
credit for interest on the credit balance fi'om time to time and some
small debits for banking fees which items
were not taken into account
in the above as they do not affect them.)
[12] The second
respondent has only the fixed properry which was sold and none of the
entries in the bank account of the first respondent
relates to the
property of the second respondent. When studying the items and
amounts set out in paragraph [11] supra one notices
that vast items
were expended for fuel, obviously or the fleet of trucks which do not
belong to the second respondent and for which
the second respondent
was not liable and also a vast amount regarding personal loans to the
first respondent.
[13] The allegation
of the first respondent referred to in paragraph 8 supra read
together with the expenses set out in paragraph
9 supra, indicate
that the first respondent fraudulently siphoned off the R1M. which
was to be paid into the loan bank account
of the second respondent
and fraudulently utilized it to his own benefit by vast loan and
expenses of other companies.
[14] It is quite
clear that the first respondent did want to expose himself more and
therefore did not deal more particularly with
the payments made from
his own money market account annexures "FI". "F2"
and "F3".
[15] The first
respondent did not prove that the applicants were either informed or
aware thereof that the RIM was paid by them
into the first
respondent's mone> market bank account and their version that they
transferred the amount into the account they
v\ ere led to believe by
the first respondent, and his agent on his instructions, to be the
account number of the bond over the
property, was in fact proven by
the applicants. The first defendant in fact stated under oath that he
deliberately gave his own
money market bank account number to his
agent to give to the applicants as. he, so went his allegation, could
do as he pleases
as it was his company and that there was no account
number with Nedbank. the bondholder over the property purchased by
the applicants
which averment by the first respondent was, to his
know ledge, false and in any case not proven by him.
[16] It is clear
that by paying the RIM into the first respondent’s money market
account, as the applicants were falsely induced
to pay by the first
respondent, they were seriously prejudiced as the bondholder over the
property purchased. nameh Nedbank. refused
to cancel the bond and the
applicants cannot take transfer.
[17] The bald
allegation by the first respondent in his answering affidavit to the
effect that he was entitled to the R1 M is rejected
as being false
under the circumstances.
[18] It is clear
that the first respondent cannot and did not rely on any agreement
with the applicants to the effect that they
must transfer the RIM
into the first respondents money market account and on that basis
alone the applicants were entitled to succeed.
[19] The first
respondent did not rely, as an excuse for having the R1M deposited
into his own money market bank account, that it
was a loan by the
second respondent to him as he then would have been foul of the
provisions of section 226 of the Companies Act.
[20] The following
facts appeal
-
to be common cause between the parties:
a) The agreement
concluded between the applicants and the second respondent which
appears as annexure "JDV2" on paginated
page 29.
b) The first
respondent was not involved in the negotiations and conclusion of the
agreement of sale on behalf of the second respondent
and as no
confirmatory affidavit by the person acting on behalf of the second
respondent was attached to the first respondent’s
answering
affidavit and the version of the first respondent in the answering
affidavit in this regard is no more than hearsay and
Ins denial of
the applicants' version is to be regarded as a mere bare denial.
c
The first respondent did not allege that there w as an agreement
between him and the second respondent which authorised him to
deposit
the RIM into his money market account. Therefore the first respondent
could not and did not submit that, in terms of the
agreement, he was
the
adictus
solutionis siratia
(Powell
v
Absa Bank Ltd
1998
(2) SA 80
" (SE))
d)
That the applicants were under the
hona
fide,
yet
mistaken belief, that the RIM was paid for the benefit of the second
respondent into its bond bank account thereby reducing
the amount
owing by the second respondent to Nedbank.
[21] The whole of
the first respondent’s defence is based upon the rather far
fetched allegation that he was entitled to the
RIM and to dispose
thereof as he saw fit.
[22] The first
respondent did not prove such right and he did not provide any proof
that he was so authorised by the second respondent
or ex lege
entitled to it.
[23] The first
respondent stated that he is "a director” of the second
respondent and neither alleged nor proved that
he was the sole
director and or shareholder of the second respondent and did not
attach any resolution adopted by the members and
or board of
directors of the second respondent authorising him to received the
R1M on behalf of the second respondent and io deal
therewith as he
pleased and also did not allege and prove any other manner of
authorisation by the second respondent.
[24] The first
respondent in fact, with regard to this application before this
Court, merely made the baid allegation that he was
"duly
authorised to represent it (being the second respondent) in these
proceedings", and did not attach a resolution
adopted by the
board of directors of the second respondent to that effect, to the
answering affidavit.
[25] The first
respondent made out a case that he is an astute businessman running a
group of companies. He was also represented
by an attorney and
counsel. He was thus aware that to contradict successfully the strong
facts and evidence against him. he w as
called upon to produce
evidence by way of documentation and supporting affidavits of others
who were involved on behalf of the
second respondent in the
transaction. The first respondent didn't do it and feeblv made bald
allegations which were not supported
by the necessary material.
[26] If the first
respondent's contention was indeed true that the fluids would be
disbursed by the first respondent on behalf of
the second respondent,
then there would hav e been no reason why the monies should not first
have been paid into the bond bank
account of the second respondent
and thereafter either disbursed from that account, alternatively paid
over by the second respondent
to bank account of the first
respondent, alternatively that the second respondent would provide
written instructions and/or permission
to the applicants to pay the
deposit to the first respondent acting as its representative and or
agent. The contention of the first
respondent that the second
respondent did not have a bona account number with the bondholder
Nedbank is disingenuous and manifestly
false.
[27] The applicants
made the payment intending it to be credited to the bond account of
the second respondent w ith Nedbank in terms
of the provisions of
clause 1.1 of the deed of sale, and their permission was not obtained
to deviate from the provisions of the
deed of' sale and in this
instance the first respondent also prejudiced the second respondent.
[28] The first
respondent referred to one Norman Thomas, allegedly his "Group's"
Executive Officer and David Veldman.
the Group's attorney, yet no
confirmatory affidavits from them with regard to the allegations
pertaining to them, were attached
to the answering affidavit. The
first respondent apparently expected this Court to believe that the
Chief Executive Officer of
the Group of companies would proceed to
provide the personal money market bank account number of one of the
directors as being
the account into which to pay the RIM of the
second respondent, in contradiction of all principles of coiporate
governance and
in patent dereliction of his fiduciary duties towards
the company. A negative inference is drawn in this regard against the
first
respondent.
[29]
Accordingly, and on the first respondent's own version, the Court
found unhesitatingly that the first respondent had no right
and never
had any right which entitled the first respondent to receive and use
the deposit of R1M paid by the applicants in the
belief that they
were paying it into the bond account of the second respondent and the
Court found that the first respondent fraudulently
caused the
transfer of the RIM to be made
indebiti
into
his personal loan account and that he was to repay it with interest
to the applicants (See
African
Diamond Exporters (Pty) Ltd. v Barclays Bank International (Pty) Ltd.
1978
(3) SA 699
(A) :
Absa
Bank Limited
\
Standard Bank of
South Africa Ltd.
[1997] ZASCA 71
;
1998
(1) SA 242
(SCA)).
[30] It is clear
that the proposed appeal has no merits and that leave to appeal
should be refused with costs.
[31]
With regard to costs it is clear that the application for leave to
appeal, besides not having am merit, was clearly made
mala
fide
with
the ulterior motive to delay the matter and a punitive costs order
should be granted against the first respondent.
[32] The following
order is accordingly made:
1. The
application for leave to appeal is refused and the applicant (first
respondent in the main matter) is to pay the costs of
the application
for leave to appeal on the scale of attorney and own client.
P.Z.
EBERSOHN
ACTING JUDGE OF
THE HIGH COURT
Applicant's
counsel: Adv. M.Smith
Applicants'
attorneys: Feldman Nance-Kivell Attorneys
c/o
Kruger
&
Meek
Ref.
S. Kruger /sg/2477
Tel.
012-460 1370
Respondents'
counsel: Adv. R.J. Groenevvald
Respondents'
attorneys: De Yilliers Mojapelo
c/o Kemp de Beer
& Goosen
Tel. 012 321
1105
Tel.
011-869 7574
Ref.Mr.W.S.Badenhorst/D1074