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[2010] ZAGPPHC 263
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Afgri Edryfs Beperk v Duvangilla BK (A645/08) [2010] ZAGPPHC 263 (1 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: A645/08
DATE:01/06/2010
IN
THE MATTER BETWEEN
AFGRI
BEDRYFS
BEPERK
...................................................................................
APPELLANT
AND
DUVANGILLA
BK
...............................................................................................
RESPONDENT
JUDGMENT
BAM.
AJ
[1]
The appellant appeals against the whole of the judgment of the
magistrate of Schweizer Reneke, delivered on 25 January 2008
by the
Honourable Magistrate Ms L Heyns. In terms of the said judgment the
appellant was ordered to pay to the respondent the amount
of R83
170,60 plus interest and costs on a party and party scale.
(The
appellant was the first defendant and the respondent the plaintiff in
the court a quo.)
[2]
It was common cause-fa) that the respondent's claim against the
appellant originated from a credit agreement entered into between
the
appellant and the erstwhile second defendant (one Barkhuizen), in
terms of which the appellant, as creditor, granted a summer
production facility to second defendant; (b) on 15 December 2004 a
letter with the following contents (see volume 1 pi 1) was forwarded
to the respondent (by the appellant):
"Graag
wens ek u mee te deel dat 'n somerproduksiefasiliteit vir R893 000.00
aan u klient toegestaan is en dat 50% van die
gemelde bedrag reeds
aan u klient beskikbaar gestel is. 'n Bedrag van Rl78 600,00 word
deur Afgri teruggehou. synde kostes asook
versekeringspremies. Die
saldo van R267 900,00 word tans teruggehou, in afwagting van ons
verslae, welke verslae reeds in die komende
twee weke beskikbaar
behoort te wees.
Op ontvangs van positiewe
verslae asook u bestelling sal die nodige oorbetalings aan u gedoen
word."
(d) that the
abovementioned letter and its contents referred to the business
relationship between the appellant and the respondent;
and
(e)
the respondent is a supplier of chemicals to farmers.
[3] On 31 August 2006,
the respondent filed its amended particulars of claim. The
particulars now read as follows:
"4.
4.1 Op of ongeveer Desember 2004 en te Schweizer Reneke
het
die eerste verweerder, behoorlik verteenwoordig deur J N Viljoen
mondelings teenoor die eiser, behoorlik verteenwoordig deur
P Louw,
belowe en onderneem om aankope te doen deur S H Barkhuizen by die
eiser te betaal. 4.2 Voormelde mondelinge onderneming
is deur die
eiser aanvaar.
5.
5.1 Na ontvangs van gemelde belofte/onderneming en op die
tweede
verweerder se spesiale aandrang en versoek en gedurende die periode 1
Desember 2004 tot 18 Januarie 2005, het die eiser goedere
verkoop en
gelewer aan die tweede verweerder soos blyk uit aanhangsels Al"
tot 'A5" hiertoe.
5.2 Uit hoofde van die
belofte/onderneming deur die eerste verweerder aan die eiser, het die
eerste verweerder aanspreeklik geword
vir betaling van goedere gekoop
en gelewer deur eiser aan die tweede verweerder.
5.3 Eiser het die
fakture, aanhangsels 'AT tot 'A5' hiertoe, by eerste verweerder
ingedien vir betaling, maar het eerste verweerder
in gebreke gebly om
enige betalings in die verband te maak.
6.
6.1 In die alternatief het die eerste verweerder, behoorlik
verteenwoordig
deur J N Viljoen, op 15 Desember 2004 'n skriftelike onderneming aan
die eiser verskaf in terme waarvan die eerste
verweerder onderneem
en/of beloof het om op ontvangs van positiewe verslae asook 'n
bestelling, die goedere wat deur die tweede
verweerder by die eiser
bestel is, te betaal."
[4]
The appellant, in its pleadings, denied that it was liable to pay the
respondent the amount claimed. The appellant further denied
that the
respondent placed any orders with the appellant as it was required to
do (see p56, paragraph 9.3):
"9.3 Die eerste
verweerder ontken dat eiser enige bestellings by eerste verweerder
geplaas het, pleit verder dat geen betalings
aan eiser gemaak is deur
eerste verweerder nie en dat eerste verweerder nie verplig is om
enige betaling aan eiser te maak nie."
[5]
The court a quo was informed (see record, p60) that default judgment
was granted against the second defendant in the amount
claimed.
[6]
Evidence was adduced by both parties pertaining to what seems to have
been the only issue remaining, namely whether the respondent
in fact
placed or filed the necessary orders in accordance with the
requirements of the appellant. The issue regarding the positive
reports or "positiewe verslae" became common cause (see
p61, lines 14-15).
[7]
Mr P J Louw testified on behalf of the respondent, of which he was
the sole member. From his evidence it is clear that he was
concerned
about the payment of the chemicals respondent was supposed to supply
to the second defendant. After having received the
letter from the
appellant signed by Mr Goosen and dated 15 December 2004, he was
satisfied that the respondent would get his money
and that he should
proceed with the supply of the chemicals to the second defendant (see
record vol 1, p68, lines 15-20). Mr Louw
was satisfied that the tax
invoices (see record pp6-10) complied with the required provisions.
According to Mr Louw, he regarded
the invoices as orders (see record
p74 lines 22-24). Pertaining to the fact that he should have
registered as a supplier, his evidence
was that he only subsequently
learnt about that requirement (see record p82 lines 4-7). It is clear
in this regard that the registration
is nothing more than an
administrative requirement and not a condition.
[8]
Ms G J Smit testified on behalf of the respondent. She told the court
a quo that she, in her capacity as administrative clerk,
supplied the
invoices in question to the offices of the appellant. She did not
know anything about the registration number, and
neither did anybody
at the appellant's place of business at that stage inform her that an
order number was in fact necessary. What
she learnt about was that
there should have been a supplier number, but once that was issued,
it was kept on the system and did
not play any day to day role at all
(see record p94).
[9]
The appellant adduced the evidence of Mr Lin Truluck, a credit
manager with the appellant. This witness informed the court a
quo of
what was required of a supplier before the supplier would have been
paid for the services rendered. Mr Truluck's evidence
indicated that
once an order received by the plaintiff was numbered and there were
still funds available, the supplier would be
entitled to payment (see
ppl 12 and 113).
[10]
The learned magistrate posed certain questions to Mr Truluck, which
were recorded as follows (pi 13, from line 6):
"Just
to clear up, do I understand you correctly, you need a supplier
number and to get that what is registered on exhibit
'C, that is the
supplier number you get? — That is correct.
But
then you need a further number, an order number to actually get your
money? — That is correct.
After
you have received your supplier number, how do you get your order
number? — The supplier would then contact the branch
they were
dealing with.
Yes? — And request
them to give them an order, supply an order number to them which
would then reserve the credit against
the customer."
[11]
I am satisfied that the crux of the situation was summed up by the
learned magistrate in putting the afore-quoted questions
to Mr
Truluck.
[12]
It appears to me that the gist of the magistrate's questions to Mr
Truluck is that there are several administrative issues
to be
considered and adhered to, which cannot be termed "conditions"
to be complied with before the supplier gets paid.
In this regard, I
refer to the number issued to the supplier, the order number itself
and whether the "order form" should
consist of a mere tax
invoice or a document clearly marked as "order".
[13]
What seems to me to have been the "conditions" for the
payment to a supplier, are the following:
(a) that funds on behalf
of the farmer would still be available with the creditor; and
(b) that order forms
issued by the supplier, indicating that specific products and
material, and the amount charged, were in fact
delivered or furnished
to the farmer by the third party, the supplier.
[14]
This also appears to me to be consistent with the evidence of Mr
Viljoen, who testified on behalf of the appellant, the person
who
drafted the letter of 15 December 2004 and explaining (on pi33) what
exactly was meant by the said letter. It is of importance
to point
out that the "positiewe verslae" as it appears on the said
letter, were not an issue anymore on the date the
respondent expected
payment of the amount in question. It was common cause that the
aforesaid reports were in fact supplied to
the appellant, before the
appellant decided not to pay the respondent.
[15]
The learned magistrate, in considering whether the respondent was in
fact entitled to be paid by the appellant, remarked as
follows in her
judgment (see record pl54):
"Die
kern van die geskil in hierdie saak is baie duidelik: 'Sou die
redelike man met die inligting wat hy (eiser) ontvang het
met
betrekking tot betaling vir lewering, van oordeel wees dat hy
geregtig is op betaling?'"
The gist of the learned
magistrate's decision in this regard is that the respondent in
reading the letter forwarded by the plaintiff
dated 14 December 2006,
acted reasonably. Any reasonable person who would have read the said
letter would have been in a situation
to accept that what was
contained in the letter was in fact correct.
[16]
The agreement entered into by the appellant and the second defendant
is a credit agreement, or more commonly known, a money
lending
transaction. In terms of the result of the agreement between the
aforesaid two parties, a sufficient amount was still available
to
cover the amount claimed by the respondent, R83 117,60, for the goods
sold and delivered by the respondent to the second defendant.
The
"remaining condition" was that the respondent should
furnish the appellant with order forms reflecting the above
mentioned
amount as value of the goods delivered to the second defendant. In
this regard the documents furnished by the respondent
were in the
form of tax invoices. The appellant contended that tax invoices do
not satisfy the requirement of orders in this matter.
However,
speaking for myself, I am satisfied that in view of the contents of
the tax invoices, referring to the detail of the transaction,
complied with the requisites of an order form.
[17]
It was the respondent's first and primary aim to ascertain who would
be responsible for the payment of its fees. I am satisfied
that in
the event of it being correct that the appellant needed "order
forms" and not the tax invoices, that the respondent,
without
question, would have supplied "order forms" in accordance
with the appellant's requirements. After all, as I
have remarked
above, the respondent was concerned about the question of who was
going to pay his fees. The respondent would on
the probabilities have
complied with any condition which the payments were subjected to.
[18]
Mr Goosen, appearing for the appellant, referred to several decisions
pertaining to the interpretation of the language used
in a document
and the "golden rule" of interpretation in that regard.
[See Coopers and Lyhrand & Others v O'Briant
[1995] ZASCA 64
;
1995 3 SA 761
(A).]
Mr Goosen's submissions pertaining to the law seems to be correct.
However, I do not deem it necessary to consider all the
issues in
that regard, save to say that I am satisfied that the respondent
objectively complied with the condition by furnishing
the tax
invoices as order forms reflecting delivery of the goods in question
by the respondent to the second defendant, as well
as the amounts due
to the respondent.
[19]
In view of the fact that an agreement existed between the appellant
and the first defendant regarding the advancing of the
capital to the
second defendant and that on all probabilities a sufficient amount
was still available to the second defendant to
pay his suppliers; I
am of the opinion that the onus rested on the appellant to prove on a
balance of probabilities that it was
not in the circumstances liable
and obliged to pay the amount in question to the respondent. In this
regard, I am further of the
opinion that the appellant failed.
[20]
Ms M Janse van Nieuwenhuizen, who appeared on behalf of the
respondent, referred to the case of Pieters & Co v Salomon
1911
AD 1921
regarding the conduct of the party who is sued for the
compliance with the terms of a contract like the one in casu. In this
regard,
counsel submitted that the correct interpretation of the
Pieters matter, and to make it applicable to this case, should be as
follows:
"The
whole business was conducted in a very slip shod manner, and there is
much force in the contention that Afgri never intended
to make
themselves responsible for payment of the invoices, but if their
course of dealing with the respondent was such as reasonably
to lead
it to believe that they intended to pay Duvangilla the full amount of
its invoices, Afgri's unexpressed intention to pay
only upon the
issue of an order number cannot avail them."
With
reference to what I have quoted above, I am of the opinion that Ms
Van Nieuwenhuizen's submission in this regard is fair and
a
reasonable summary of the issue referred to.
[21] I am therefore
inclined to find that the learned magistrate was correct in her
finding in favour of the respondent and I suggest
therefore that the
appellant's appeal against the said finding should be dismissed with
costs. I would further add that the appellant
and the second
defendant should be held liable to the respondent, jointly and
severally, the one paying the other to be absolved.
A J BAM
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
agree and it is so ordered.
N
P MNGQIBISA-THUSI
JUDGE OF THE NORTH
GAUTENG HIGH COURT
A645-2008
HEARD
ON:
FOR
THE APPELLANT:
INSTRUCTED
BY:
FOR
THE RESPONDENT:
INSTRUCTED
BY: