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[2010] ZAGPPHC 158
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Globul Roads v E H Barnard t/a E H Barnard Boerdery & Vervoer (A357/2009) [2010] ZAGPPHC 158 (19 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: A357/2009
DATE:
19/10/2010
IN
THE MATTER BETWEEN
GLOBUL
ROADS
...........................................................................................
APPELLANT
AND
E
H BARNARD t/a
E
H BARNARD BOERDERY &
VERVOER
...............................................
RESPONDENT
JUDGMENT
BAM.
AJ
[1
] The appellant and the respondent were contracting parties. In
accordance with the agreement entered into between the parties
the
appellant hired certain heavy equipment and machinery from the
defendant for certain periods of time, including the period
October
2007.
[2]
It was common cause that the appellant was obliged to pay the
defendant the amount of R23 712,00 for the said period.
[3]
The appellant did not pay the amount timeously and the respondent
subsequently, in April 2008, issued summons against the appellant
for
payment of the said amount. In the particulars of claim the
respondent referred to the agreement between the parties and attached
a document, which on the face of it is a "tax invoice" with
the number 8 and dated 9 November 2007. In paragraph 3 of
the
particulars of claim the respondent described the said document as
follows:
"'n
Afskrif van die geskrywe
(sic)
gedeelte
van die ooreenkoms word hierby aangeheg as aanhangsel A."
[4]
The respondent then applied for summary judgment alleging that the
appellant had no
bona
fide
defence
against the claim.
[5]
In opposing the summary judgment the appellant replied under oath,
with reference to the aforesaid tax invoice as follows:
"3.1
Tax invoice 8 dated 9/11/07 in the amount of R23 712,00 (twenty
three thousand seven hundred and twelve rand) was paid
by the
defendant via electronic transfer into plaintiffs bank account on 18
February 2008;
3.2
I attach proof of the payment transaction hereto as annexure A."
[11]
Despite objection by the appellant's attorney that any other
transaction or invoice regarding business between the parties
would
have been irrelevant and inadmissible on the basis that it referred
to another cause of action, the learned magistrate nonetheless
allowed the cross-examination of Mr Oosthuizen in this regard.
[12]
What is clear is that the issue pertaining to any prior business
and/or amounts owed to respondent by the appellant was not
ventilated
in the pleadings in this matter. In this regard Mr Vermeulen,
appearing for the appellant, submitted that the respondent
was in the
circumstances obliged to file a reply to the appellant's averments in
his plea, introducing the facts upon which the
respondent later on
endeavoured to rely upon, to entitle the respondent to address the
said issue. In the event where the respondent
did not file a
replication in terms of the Rules of the Magistrate Court, Mr
Vermeulen submitted that in terms of rule 21 of the
said rules the
defendant "shall be taken to have denied all the allegations of
fact contained in the plea". This includes
a denial by the
respondent that the appellant caused payment of the amount in
question on 18 February 2008.
[13]
To my mind it appears from the papers that at all relevant times it
was in the contemplation of the parties that the issue
turned about
payment of the amount reflected in invoice no 8 and nothing else.
[14]
Mr Geyser for the respondent argued that the respondent was entitled
to refer to the previous transaction between the parties
on the basis
that that evidence was used by the respondent to rebut the evidence
of the appellant for what purpose the said payment
was indeed
effected.
[15]
I do not agree with the contention of Mr Geyser, to my mind the
respondent was bound to what is contained in the pleadings.
In view
of the contents of the pleadings, where the parties were
ad
idem
that
the issue between the parties turned upon the payment of the amount
reflected in invoice no 8, there was no scope for the respondent
to
introduce new evidence.
[16]
It is trite that the
onus
to
prove payment lies heavily on the party who avers payment,
in
casu
the
appellant, see
Pillay
v
Krishna
1946
AD 946
at 955, Mr Geyser for the respondent further contended that
the appellant was obliged to prove that the specific debt in question
had been paid. In this regard we were also referred to the authority
Nedperm
Bank Ltd v P Lavarach & Others
1996
4 SA 30
(AD) at 47B. The principles re
onus
are
trite.
[17]
From the evidence it is clear that the respondent was not in doubt
who the party was who made the payment and also not in doubt
that it
turned about a certain transaction between the parties; and where
both parties at all relevant times focused upon the debt
reflected in
invoice no 8, there could, on the probabilities, have been no doubt
from the defendant's point of view that the payment
could have been
for anything else.
[18]
Accordingly I am of the view that the appellant succeeded in proving
that the payment made by the appellant to the respondent
was a
payment in connection with the issue referred to in the respondent's
particulars of claim, as envisaged in
Pillay
v Krishna (supra)
and
the
Nedperm
Bank
case
(supra).
I
would therefore suggest that the following order should be made.
1.
The
appeal of the appellant is upheld.
2.
The
magistrate's order in the court
a
quo
is
substituted by the following:
"Die
eiser se eis word van die hand gewys met koste."
3.
Respondent is ordered to pay the appellant's costs of the appeal.
A
J
BAM
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
concur and the order is made accordingly.
Ms
L M MOTOPA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
HEARD
ON:
FOR
THE APPELLANT: ADV P J VERMEULEN
INSTRUCTED
BY: VENEZIANO INC, PRETORIA
FOR
THE RESPONDENT: ADV W W GEYSER
INSTRUCTED
BY: WEAVIND & WEAVIND, PRETORIA