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[2012] ZAECPEHC 19
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ECU Investments (Pty) Ltd CBF Motors v van Heerden and Another (474/09, 475/09) [2012] ZAECPEHC 19 (29 March 2012)
27
Not
Reportable
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE –
PORT ELIZABETH
Case No
: 474/09
475/09
Date Heard
:
5/05/11,
cur adv vult
on
23 August 2011
Date Delivered
:
29/03/12
In the matter between
ECU INVESTMENTS
(PTY) LTD
t/a CBF MOTORS
….................................................................
Plaintiff
and
EUGENE VAN HEERDEN
…............................................
First
Defendant
DESERT CHARM TRADING
205 (PTY) LTD
…............
Second
Defendant
____________________________________________________
JUDGMENT
REVELAS J
[1] The plaintiff, a
company which trades as a dealer in motor vehicles in Humansdorp,
instituted two actions against the defendants
which, were
consolidated shortly before the trial commenced. The first action is
a condictio indebiti
, alternatively a claim for unjust
enrichment. The claim in consequence of a cession, is for R261
596.00, which was allegedly unduly
transferred by the cessionary into
the bank account of the second defendant. The second claim is a
rei
vindicatio
in respect of four motor vehicles allegedly in the
unlawful possession of the defendants.
[2] The second
defendant is a property developer and the first defendant one of its
directors. The pleadings in this matter are
deceptively simple. The
evidence led in this case was as a whole rather complex due to the
various transactions involving several
vehicles, about which the
parties proffered different exclusive versions.
The First Claim
(Enrichment)
[3] The following is a
summary of the pleadings in respect of this claim:
The amount of R261
596.00 was allegedly paid by the cessionary as the purchase price for
a vehicle, while under the impression that
he was purchasing the
vehicle from the plaintiff. The defendants pleaded that the first
defendant was entitled to retain the money
in his bank account
because it was payment for a Colt Triton 4x4 truck (the Triton) which
was sold by the second defendant to the
plaintiff.
[4] The defendants
claimed the amount of R175 000.00 from the plaintiff in their
conditional counterclaim, which they allege
was the purchase price
which had been paid for the Triton, when it was bought from the
plaintiff, represented by its employee and
sales consultant, Mr Anton
Jonker on 8 August 2008 in Humansdorp. The defendants pleaded that
the second defendant paid the amount
of R175 000.00 for the vehicle
with a cheque drawn on Catwalk Investments 582 (Pty) Ltd (Catwalk).
The first defendant was also
a director of Catwalk, another property
development company. Jonker, at a later stage, before delivery of the
Triton could take
place, offered to improve the vehicle with extra
fittings (a rollbar, run board, dvd player etc) which could then be
resold to
an interested buyer at a higher price. The extras were
indeed fitted to the Triton according to Jonker, who subsequently
advised
that he had sold the (improved) Triton to someone (who
remained anonymous for the duration of the trial) for R260 000.00.
Together
with bank commission of R1596.00, the amount of R261 596.00
(as claimed by the plaintiff) was therefore due in respect of the
sale
of the Triton and owed to the second defendant by the plaintiff.
The defendants denied that they were unjustly enriched at the
plaintiff’s expense and claimed delivery of the Triton or
repayment of the R175 000.00.
[5] In its plea to the
counterclaim, the plaintiff admitted that it received an amount of
R175 000.00 from Catwalk as pleaded by
the defendants, but alleged
that it was a payment in respect of a 2005 model Toyota 4x4 double
cab truck (“2005 Toyota truck”)
and not the Triton. The
plaintiff alleges that the 2005 Toyota truck was delivered to Catwalk
(which is based in Johannesburg)
in August 2008 and accordingly it
did not owe the defendants delivery of the vehicle nor payment of any
kind. The plaintiff denied
any knowledge of the Triton.
[6] In the plaintiff’s
‘Replication of Lack of Authority’ it dealt with the
authority (or lack thereof) of its
former employee, Jonker. In
replicating to the defendants’ plea, the plaintiff disputed
Jonker’s alleged authority
to act as duly authorised
representative of the plaintiff and to bind the latter to
transactions concluded by Jonker with third
persons, including the
defendants, during the currency of his employment with the plaintiff.
The plaintiff further contended that
during his employment with the
plaintiff, Jonker implemented an unlawful scheme to defraud the
plaintiff. He did so by misappropriating
its vehicles, selling them
at prices below trade value, misappropriating the profits which were
made, by subsequently selling the
same vehicles at much higher prices
for his own account, issuing false documentation in respect of such
sales. Jonker allegedly
used the plaintiff’s capital and stock
for purposes of private vehicle sales entered into by himself, in his
personal capacity,
with third persons and the defendants. In doing
so, the plaintiff contended, Jonker acted on a frolic of his own.
[7] The plaintiff
further denied that it is estopped from relying on Jonker’s
lack of authority as pleaded by the defendants,
whom it contends,
knew, or ought to have known, that Jonker was acting on a frolic of
his own. The plaintiff asserted that the
defendants knew, or ought to
have known, that is was impossible to legitimately obtain vehicles at
such reduced prices from a well-established
motor vehicle dealership
such as that of the plaintiff.
[8] An amount equal to
that claimed by the plaintiff, has been deposited into the trust
account of the defendant’s attorneys,
pending the outcome of
this action.
The Second Claim
[9] The plaintiff’s
second claim is
a rei vindicatio
for the recovery of four
vehicles, which the plaintiff alleged, was in the unlawful possession
of the defendants, who pleaded that
the vehicles in question were
lawfully purchased by them, from the plaintiff. Other vehicles they
alleged, were also bought from
the plaintiff, and some of these
vehicles were never delivered to them. In all these transactions, the
defendants alleged that
the plaintiff was also represented by Jonker.
[10] Counterclaims
(conditional and unconditional) for the delivery, alternatively, for
the repayment of the purchase prices allegedly
paid to the plaintiff
in respect of these vehicles, were instituted against the plaintiff.
[11] The defendants’
plea, their counterclaims, and the plaintiff’s plea to the
counterclaims, will be dealt more fully
below. As was done in the
first claim, the plaintiff replicated to the defendants’ plea
pertaining to Jonker’s authority,
(or lack thereof) in a
‘Replication of Lack of Authority’ and because the
allegations therein are the same, they will
not be repeated further
on in the judgment, after the plaintiff’s plea to the
counterclaims is referred to.
General Background
[12] The plaintiff
called two witnesses to testify on its behalf. The first witness was
Mr Pieter Nortjé, the cessionary
of the first claim. The
second witness was Mr Bakkes Muller, the plaintiff’s managing
director. Mr Eugene van Heerden (the
first defendant) testified on
behalf of the two defendants. Much of the testimony of van Heerden
pertained to facts and circumstances
which were obtained by him from
Anton Jonker.
[13] All the
transactions which gave rise to the actions and counter-claims in
this matter occurred while Jonker was employed as
a sales consultant
by the plaintiff from April 2008 to December 2008. He featured in all
the impugned and legitimate transactions
in this matter. During the
relevant period, the plaintiff held the agency for selling Mercedes
Benz and Mitshubishi motor vehicles
in Humansdorp and it also
conducted the business of a dealer in used motor vehicles.
[14] The defendant’s
case was that there were many business transactions between van
Heerden and Jonker, but van Heerden at
all material times believed he
was dealing with the plaintiff, represented Mr Jonker. According to
van Heerden, Jonker would approach
him with a new vehicle, which he
would buy and perhaps sell later. The idea was not to make a profit
though. The second defendant
had a large fleet of cars and constantly
required them for use in his business and to this end vehicles were
bought and sold to
the plaintiff.
[15] Muller testified
that Jonker was appointed by the plaintiff as a salesman in April
2008, and his services were terminated during
December 2008, after
certain fraudulent activities came to light. According to Muller,
Jonker never had access to the plaintiff’s
bank account or it
cheque book. He was only permitted to negotiate the purchase of stock
on behalf of the plaintiff, but did not
purchase the vehicles
himself. The negotiations were to be conducted within the parameters
set by the plaintiff with regard to
prices and trade-ins. Jonker was
especially not permitted to trade in his own name or for his own
account from the premises. Jonker
was eventually convicted of other
fraud charges laid against him by Muller. When this matter was heard
he had not yet been sentenced
yet.
[16] The documents
which Muller relied upon in support of proving the transaction
between the parties were of substantial significance
in evaluating
the evidence in this matter.
[17] Of particular
significance were the plaintiff’s standard order forms and the
invoices generated by its administrative
and accounting personnel,
processed on the information contained in the order forms. The main
purpose of the standard order form
was to record the details of the
purchaser, the vehicle being purchased and any other transactions in
connection with the particular
sale such as for example, the trading
in of the purchaser’s existing vehicle. Muller explained that
when a vehicle is purchased
from the plaintiff, the transaction
enters the plaintiff’s accounting system, firstly, by the
prospective purchaser’s
signature on the plaintiff’s
standard order form. Secondly, by printing the invoice for the
purchase. Muller testified that
the standard order forms would be
completed by hand, whereas the invoices are always printed, and that
has been the case for the
last ten years, since the introduction of
its new accounting programme. Prior thereto, invoices were made out
by hand and the plaintiff
still had same of these old invoice form
books in storage.
[18] Payment and
delivery would normally follow the issue of an invoice. These two
events could happen simultaneously or, in the
case where a bank
finances the purchase, it may happen, that delivery takes place
before payment. In such cases the invoice is
made out to the bank or
other financier. The computer system used by the plaintiff for the
recording and processing of its sales
transactions,
is
called Autoline, a programme which was specifically designed for the
motor vehicle sales business by Carriages (Pty) Ltd, a British
Company. The invoices are prepared by the Autoline programme in a
particular way which is used by Mercedes Benz dealers worldwide.
[19] The reason why the
programme is used so widely in the automobile trade is because it is
impossible, Muller testified, for such
an invoice to be issued in the
Autoline programme if the vehicle in question has not been taken up
as part of the dealer’s
stock, which in turn, would not occur
if the vehicle has not been paid for. It is therefore a double entry
system which protects
parties from fraud and theft. Muller also
explained that the purchasing process would not necessarily be
incomplete without the
offer to purchase the order form and a vehicle
could be purchased without it. The order form also contains the
words:
“
I/We understand that this offer is
subject to confirmation by the Management of CBU Motors”
which
the plaintiff submitted, demonstrates that Jonker could
not have been given the necessary authority to act on its behalf when
purchasing
vehicles and entering into schemes with third parties.
[20] After his
nefarious dealings came to light in December 2008 Jonker’s
employment was terminated. Both parties contended
that Jonker had
defrauded them, but sought to hold each other accountable. Most
significantly, on the version of the two defendants,
they were
involved in twenty nine transactions during the course of 2008, where
vehicles were purchased and sold through Jonker.
Approximately
R900 000.00 was paid into Jonker’s personal bank account
by the defendants, in connection with twelve
different vehicle sale
transactions. Of the twenty nine transactions in terms whereof
vehicles were sold through Jonker to the
second defendant only nine
of them were recorded in the plaintiff’s accounting system. The
payments made to the plaintiff
in terms of the nine legitimate sales
was R932 000.00.
[21] In paragraph 3 of
his warning statement to the police, van Heerden stated that because
he wanted to upgrade his (probably the
second defendant’s)
fleet of vehicles, he agreed with Jonker that he, personally would
pay Jonker
ex gratia
compensation or commission in instances
where he (van Heerden) would sell vehicles through Jonker, because it
consumed a lot of
Jonker’s time searching for buyers. According
to van Heerden’s statement he paid R105 600.00 to Jonker,
ex gratia.
His oral testimony and the last paragraph of the
warning statement is to the contrary. He stated that he believed at
all times
that he was trading with the plaintiff.
The First Claim
(
Condictio
Indebiti
)
The Evidence
[22] It was common
cause that on or about 9 December 2008, Nortjé paid the amount
of R261 596.00 into the first defendant’s
First Rand Bank
account. Nortjé’s largely undisputed testimony was the
following:
[23] During October
2008 he conducted a search on the Mercedes Benz website for a 2008
Mercedes Benz CLS 500 (Sport Coupe), for
which he wanted to trade in
for his own 2003 Mercedes Benz CLK 500 vehicle. After about two days
he was contacted by Jonker, who
introduced himself as a salesman for
the plaintiff. Nortjé said he gave Jonker details about his
own Mercedes which he wished
to trade in, as well as the qualities in
the type of car he was looking for, and told Jonker that he would
trade in his own car
if the terms were favourable. A week or so
later, Jonker contacted him again with the good news that he had
found just the vehicle
for him. It had a very low mileage, was the
right colour and had the right interior finishing. According to
Jonker, this Mercedes
belonged to a person in Johannesburg who had
just bought it, but was compelled by circumstances to sell it
immediately.
[24] Jonker told him
that if he bought the vehicle, it would be transported to the Eastern
Cape by lorry. Nortjé said he
was interested in the sale and
advised Jonker he would be paying for cash, whereupon Jonker clearly
became excited. Sometime later,
without even enquiring about Nortjé’s
address, Jonker suddenly appeared at Nortjé’s Kirkwood
office in
a vehicle sporting the plaintiff’s logo, and was
carrying an invoice book, also with the plaintiff’s logo on its
cover.
In this book was an “Order” form which Jonker
asked him to sign. Jonker had already filled in all the relevant
details
of the sale. Because the vehicle had not yet been delivered,
Nortjé felt he had to delete the words “This is to
confirm
that the mentioned vehicle is to the satisfaction of the
buyer” which appeared on the form.
[25] The details of his
own vehicle (which he wanted to trade in), its mileage and the
details of the vehicle he intended to purchase
were also completed on
the form. The purchase price was set at R531 596.00 (including
VAT). Minus the trade-in value of his
own vehicle (R270 000.00),
Nortjé had to pay the balance which came to R261 596.00.
He then, in good faith made
the payment by electronic transfer into
the account specified by Jonker, because Jonker had explained that
the seller was not prepared
to release the vehicle and have it
transported all the way from Johannesburg before receipt of payment.
[26] After some time,
(which to Nortjé seemed a rather lengthy period) but still in
December 2008, Jonker notified him that
the vehicle had arrived and
he could see it at the plaintiff’s business premises in
Humansdorp. On his arrival at the premises
several aspects conspired
to change his excitement about being the owner of a new sports car to
suspicion.
[27] Firstly, Nortjé
found it strange that the vehicle was not on the shop floor or in the
showroom, but parked behind the
building. Secondly, the vehicle did
not have the appearance of having been transported by truck from
Johannesburg, because it was
very dirty, it had Eastern Cape number
plates and its odometer reading was much higher than the 2000
kilometres promised by Jonker.
Thirdly, it also appeared to be a much
older model than the one he was told about. When he inspected the
boot of the vehicle he
found, hidden below the spare wheel, a cell
phone, keys and small golfing paraphernalia. He immediately took the
matter up with
Mr Bakkes Muller (“Muller”) the
plaintiff’s managing director. During this conversation Nortjé
had learnt
that he had paid the balance of the purchase price for the
vehicle into the banking account of the second defendant, and not as
he thought, into the banking account of the plaintiff. He had no
prior dealings with the defendants. Because of the defendants’
refusal to reverse the payment, Muller suggested that Nortjé
cede his claim to the plaintiff, which he did.
[28] Van Heerden’s
testimony in respect of the first claim was the following:
He employed Jonker’s
wife, Renata Jonker, during the time relevant to this matter. He
would then meet Jonker when he came
to the house to meet her or fetch
her. Through Jonker, who he believed represented the plaintiff, he
bought several vehicles. At
that time the second defendant was
involved in the development of a golf estate near Humansdorp and
several vehicles were required
for its fleet. During August 2008,
Jonker approached him with an offer to purchase the Triton for R175
000.00 and the money was
then paid into the plaintiff’s
account. Delivery of the vehicle was not made. Jonker said he had
found a prospective buyer
for this Triton, who would pay R260 000.00,
for it provided it could be improved with extras. These extras which
comprised
a roll-bar, a run-board, a canopy, a DVD player, a nudge
bar, and a few other expensive items were indeed fitted (according to
Jonker). The vehicle was then sold (through Jonker) to this other
client whom nobody knew when the amount of R261 596.00 was
then
paid into the first defendant’s bank account it was an expected
event. The fact that the payment was not made by the
plaintiff, but
by Nortje, was a fact which apparently did not surprise van Heerden.
[29] Van Heerden
deposed to a comprehensive warning statement to the South African
Police Services relating to the various motor
vehicle sales
transactions. The statement was made pursuant to the fraud charges
laid against Jonker by Muller, in which van Heerden,
who also
testified, was linked as a business associate of Jonker. A summary of
events complied by van Heerden’s son-in-law
was also produced
in evidence.
[30] In paragraph 15 of
his warning statement, van Heerden dealt with the Triton vehicle
transaction, corroborating the defendants’
case as pleaded,
with the added detail that Jonker had promised to pay for the
improvements himself and that van Heerden could
repay him later. He
stated that regarded the transaction as profitable and therefore when
the amount was deposited into his bank
account, he was satisfied that
it represented the purchase price of the Triton.
[31] It appeared that
this Triton vehicle never existed. Given the defendants’ pleas,
counterclaims and the evidence deduced
in support of their
counterclaims, they obviously attracted an evidentiary burden to
justify retention of the money in question.
Mr van Heerden was unable
to provide a satisfactory explanation in that regard.
[32] The Van Heerden
clearly had no right to retain this money in his bank account. The
money was never paid into the second or
first defendant’s bank
account by the plaintiff, as it would have been, if the defendants’
version were true. It also
struck me as highly unlikely that a
purchaser would have agreed to such expensive improvements to be
fixed onto a vehicle he had
just paid for, but had never seen. Such a
scenario would only be likely to be found in an ongoing and separate
business relationship,
such as the plaintiff contends, existed
between Jonker and the defendants. The alleged improvements to the
Triton appeared unrealistically
expensive in relation to the very low
purchase price of R175 000.00. The R1596.00 which conveniently
was accounted for as
bank commission is also strange because bank
commission was never charged in any other of the transactions
referred to. This snippet
of evidence just adds to the general ring
of contrivance which permeated the defendants’ case as is seen
later herein. Van
Heerden’s express intention to make a profit
(as contained in his warning statement) in this context, supports the
plaintiff’s
case that Jonker and the defendants were involved
in a scheme at the expense of the plaintiff.
[33] As stated, the
plaintiff admits that it received a cheque drawn on Catwalk cheque
for R175 000.00. Muller explained that
it was payment for a 2005
Toyota truck which was, according to the plaintiff’s accounting
and sales records, purchased by
Catwalk. Van Heerden was unable to
refute this explanation and like in respect of all the counterclaims,
the question arises why,
if van Heerden thought he was dealing with
the plaintiff, why was there no demand for the money or vehicles
allegedly owed by the
plaintiff. Van Heerden’s attempts to
distance himself from Jonker and his activities were unconvincing.
Only Jonker was in
a position to dispute Nortje’s evidence,
which was more credible than Van Heerden’s very flawed
testimony. On Nortjé’s
version, Jonker acted with the
view to deceive the plaintiff, and used the plaintiff’s
resources and documents to perpetrate
a fraudulent transaction which
benefitted the defendants. In the absence of Jonker’s
testimony, the greater part of Van Heerden’s
testimony is
uncorroborated hearsay and the remainder of it, so improbable that it
ought to be rejected.
The Plaintiff’s
Rei Vindicatio
Action
[34] The four vehicles
which form the subject matter of the plaintiff’s second claim
are now held in storage by the Sheriff
of this Court in pursuance of
a court order obtained to that effect in an urgent application
brought by the plaintiff some time
after summons was issued.
[35] Before dealing
with the evidence pertaining to the four vehicles it is appropriate
to deal with the pleadings in the second
claim first.
[36] The particulars of
the four vehicles are described as follows in the plaintiff’s
particulars of claim:
A 2008 model Mercedes
Benz Vito Crew Bus, with chassis number WDF 63970323329082;
A Nissan 1.6 Litre
bakkie with chassis number ADNUSNID5U0000841;
A 2008 Nissan 1.6
Litre bakkie with chassis number ADNUSNID5U0000981;
A 2008 model
Toyota-Double Cab bakkie with chassis number AHTF229GX09030147.
[37] In this judgment
these vehicles will, to avoid confusion with the many other vehicles
referred to, be referred to respectively
as the Vito Bus, the two
Nissan 1.6 litre trucks and the 2008 Toyota 4x4 truck. The plaintiff
alleged that the first defendant,
alternatively the second defendant,
obtained possession of these four vehicles without it consent and
without any lawful justification.
[38] The defendants
admitted in their plea, that they were in possession of the four
vehicles, but contend they were in lawful possession,
having lawfully
purchased the vehicles from the plaintiff, who was in each instance,
represented by Jonker.
[39]
Defendants’
Plea
[39.1]
The Vito Bus
The defendants pleaded
that they bought the Vito bus from the plaintiff for R110 000.00 on
27 October 2008 and the second defendant
was issued with an invoice
number 005500 in the aforesaid amount and the vehicle was accordingly
delivered.
[39.2]
The two
Nissan 1.6 litre Trucks
With regard to the two
2008 model Nissan trucks the defendants pleaded that they actually
purchased four such trucks for R280 000.00
(R70 000.00
each) which cash payment van Heerden made to Jonker on 28 July 2008,
but only two trucks were delivered. They
were thus still owed
R140 000.00 for the other two by the plaintiff because of the
partial delivery, and this amount was claimed
in their unconditional
counterclaim. (The defendants claimed delivery of the two vehicles in
their conditional counterclaim).
[39.3]
The 2008 4x4
Toyota Truck
The defendant’s
plea in respect of the 2008 4x4 Toyota Truck was that the second
defendant bought it for R160 000.00
from the plaintiff on 22
September 2008 and paid for it by cheque.
[40]
Authority
The defendants pleaded
that because the plaintiff appointed Jonker, it intentionally or
negligently represented to the public, which
included the defendants,
that Jonker was authorized to conclude agreements relating to the
sale of vehicles on behalf of the plaintiff.
The defendants
subsequently acted to their detriment in accepting these
representations and the plaintiff is therefore estopped
from relying
on any alleged lack of authority, which they also dispute.
[41]
The Defendant’s
Conditional Counterclaims
In their conditional
counterclaim the defendants claimed the repayment alleged payments
made by the second defendant in respect
of all four of the vehicles
in the event of a finding that the vehicles are to be returned to the
plaintiff.
[42]
The Defendants’
Unconditional Counterclaims
Reference has already
been made to the R140 000.00 claimed in the defendants in
respect of the two 2008 model Nissan 1.6 litre
trucks which were
allegedly not delivered to the defendants. The defendants claim
delivery of these two vehicles or payment in
the amount of
R140 000.00.
[43] In addition to the
aforesaid, the defendants claimed the amounts of R50 000.00 and
R160 000.00. The amount of R50 000.00
they alleged, was for
a 2000 model Mercedes Benz C270 motor vehicle, bought by, but not
delivered, to the second defendant. The
defendants allege that the
aforesaid Mercedes was purchased for R50 000.00 from the
plaintiff on 28 July 2008, together with
a 2003 model Colt 2800 Turbo
Diesel Double Cab 4x4 light delivery vehicle (the Colt) for the
amount of R82 000.00. Both vehicles
were paid for with a cheque in
the amount of R132 000.00 to the plaintiff. Only the Colt was
delivered, hence they claim R50 000.00
or delivery of the
Mercedes.
[44] The defendants
alleged that on 16 September 2008, the second defendant bought a
Mercedes Benz CLS 350 from the plaintiff for
R160 000.00 and
paid for it with a cheque which was met by the second defendant’s
bank. Notwithstanding the aforesaid,
the vehicle was not delivered to
the second defendant who claims its delivery, alternatively repayment
of the R160 000.00.
In all the aforesaid transactions the
defendants contended that Jonker acted on behalf of the plaintiff.
[45]
The Plaintiff’s
Plea to the Defendants’ Conditional Counterclaims
[45.1]
The Vito Bus
(allegedly bought for R110 000.00 from the plaintiff)
The plaintiff admitted
that it received the R110 000.00 on 27 October 2005 as alleged
by the defendants, but pleaded that the
payment was in respect of a
2005 Toyota Corolla and not the Vito bus. In respect of the invoice
numbered 00550 relied upon by the
defendants in this regard, the
plaintiff pleaded that it was a fraudulent document prepared on the
plaintiff’s official documentation
(by Jonker).
[45.2]
Delivery of
the Two Nissan 1.6 Litre Trucks (allegedly not delivered to the
defendants) or repayment for them in the amount if R140 000.00
The plaintiff denied
ever receiving payment of R280 000.00 as alleged and pleaded
that the two Nissan 1.6 litre bakkies (allegedly
undelivered)
referred to in the defendants counterclaim, were bought from Atlantis
Motors in Centurion and the plaintiff was under
no obligation to
deliver them to the defendant or to repay the defendants R140 000.00
for them.
[45.3]
The repayment
of R160 000.00 (allegedly paid for the 2008 4x4 Toyota Truck
The plaintiff admits
that it received this payment on 28 September 2008, but pleaded that
it was in respect of two other Nissan
1.6 litre trucks, with stock
numbers U10725 and U10726 respectively. The plaintiff pleaded that on
28 November 2008, Jonker caused
a tax invoice to be issued in the
plaintiff’s name in respect of the 2008 model Toyota truck to
Wesbank, because the second
defendant intended to purchase it for
R320 000.00. The plaintiff was subsequently informed by Wesbank
that the second defendant
never applied for credit facilities with
regard to this vehicle, which was never paid for, even though it was
in the possession
of the defendants.
[46]
The Plaintiff’s
Plea to the Defendants Unconditional Counterclaim
s
[46.1]
The alleged
purchase of the Colt Double Cab and Mercedes
C270 for R82 000.00
and R50 000.00 respectively (R132 000.00)
The plaintiff denied
that such a sale took place in respect of either vehicle.
In amplification of its
denial the plaintiff pleaded that during July 2008 it sold a 2008 TDi
Double Cab (stock number U10683) to
the second defendant for the sum
of R90 000.00 of which R15 000.00 was paid in cash, and the
remainder by way of a trade-in
of a Toyota 4x4 bakkie priced at
R75 000.00. On 28 July 2008 (the dated alleged by the defendants
in their counterclaim) the
plaintiff indeed sold a Mercedes Benz to
another dealer, Autohaus Gobel, for the sum of R132 000.00 and
the payment was with
a cheque issued by the second defendant, and it
was not for a 2000 Mercedes Benz C270, but for a 2004 Mercedes Benz
C180.
[46.2]
The alleged
purchase of the two remaining 1.6 litre Nissan bakkies (for
R140 000.00)
The plaintiff pleaded
that on 16 September 2008 the second defendant purchased two Nissan
bakkies with stock numbers U10711 and
U10712 respectively from the
plaintiff and indeed paid R160 000.00 to the plaintiff for the
bakkies (and not a Mercedes Benz
CLS 350, as alleged).
The Evidence
[47] The four vehicles
which form the subject matter of the plaintiff’s
rei
vindicatio
action were delivered to van Heerden by Jonker,
without the necessary registration documentation. The Vito bus and
the 2008 Toyota
4x4 truck displayed false number plates when they
were attached by the Sheriff. The Vito bus also displayed the
plaintiff’s
licence disc. The Toyota truck had no licence disc
whatsoever.
The Vito Bus
[48] Muller provided an
invoice from Mercedes Benz Financial Services on 15 February 2008 as
proof that the plaintiff purchased
the Vito bus from Mercedes Benz
(where the plaintiff purchases all it vehicles) in Centurion for
R282 526.20. According to
Muller, the plaintiff never sold this
vehicle to either of the defendants and was unable to explain how it
ended up in the second
defendant’s possession.
[49] According to van
Heerden’s testimony the Vito bus was bought from the plaintiff
for R110 000.00 on 28 October 2008.
The defendants relied on a
cheque which was indeed paid to the plaintiff and dated 28 October
2008. The plaintiff contended that
this cheque was in respect of a
2005 Toyota Corolla motor vehicle (the Corolla) and Muller produced
the relevant invoices which
proved conclusively that the Corolla was
purchased by the plaintiff from the Humansdorp Toyota dealership for
R95 000.00 and
sold to the second defendant for R110 000.00.
[50] Van Heerden could
not dispute that the Corolla was bought by the second defendant from
the plaintiff for R110 000.00 on
28 October 2008. However, he
had no proper proof of purchasing the Vito bus for the aforesaid
amount. The invoice purportedly completed
by Jonker in respect of
this sale was not computer generated. On the probabilities it is
hardly likely that the plaintiff would
have sold the Vito bus for
almost a third less than it had paid for it, just six months prior
thereto.
[51] The plaintiff’s
version is inherently more probable, namely that it sold the Corolla
it had previously bought, at a profit
for a price which was
R15 000.00 higher than its cost price. The aforesaid is akin to
a legitimate business transaction, whereas
the defendants’
version, given the Vito’s real purchase price, resembles a
separate arrangement between Jonker and
the defendants, at the
plaintiff’s expense.
[52] Moreover, Muller
testified that when he inspected the Vito bus on 4 February 2009, the
vehicle was still registered in the
plaintiff’s name and that
fact was reflected on the licence disc, despite its false number
plates.
[53] Mr van Heerden’s
only way of dealing with the overwhelming evidence which favoured the
plaintiff’s version about
the Vito Bus was to blame Jonker.
Interestingly, van Heerden insured the Vito Bus not at R110 000.00,
but for R300 000.00,
an amount more in keeping with its true
market value. This fact confirms, in my view, that van Heerden was
well aware of the true
trade value of the vehicle and was involved in
a profit making scheme with Jonker. Clearly the defendants have no
entitlement to
retain this vehicle since it has not been paid for.
Their disingenuous defence and counterclaim in this regard also has
serious
implications for the remainder of their defences and
counterclaims.
The Two Nissan 1.6
litre Trucks
[54] These were two
light delivery vehicles with almost identical chassis numbers which
differed only in respect of the last three
digit numbers (841 and
981, respectively). Muller relied on invoices to show that these two
vehicles were bought from Atlantis
Motors in Centurion on 20 November
2008. Muller said these vehicles were never sold to the defendants
and they are still registered
as part of the plaintiff’s stock.
[55] Van Heerden’s
evidence to explain how he came to be in possession of the two
vehicles was the following:
He purchased certain
vehicles from the plaintiff, represented by Jonker, which Jonker then
sold to a dealer in Johannesburg for
R230 000.00. He was shown
the money which was in Jonker’s desk drawer. Van Heerden said
he then gave Jonker another
R50 000.00 in order to purchase a
Mercedes he was interested in. When Jonker was unable to find one, he
did not return the
cash, but promised to buy four demonstration model
Nissan bakkies for him with the R280 000.00 cash. Of the four
bakkies only
two were delivered. Van Heerden produced a receipt from
Jonker for the R280 000.00 on the plaintiff’s letterhead.
[56] Muller maintained
that the invoice or receipt completed by Jonker was a forgery.
Apparently Mr Louw, a previous salesman had
kept the plaintiff’s
old invoice books which were used, prior to the introduction of
Autoline, in his desk drawers. The inference
sought to be drawn was
that Jonker stole these old invoice books and used them when he was
conducting business for his own account
or when he tried to bypass
the plaintiff in his transactions.
[57] In my view, the
defendants were unable to demonstrate any entitlement to these
vehicles without the evidence of Jonker. Van
Heerden’s evidence
about the money in Jonker’s desk drawer, which he admits he did
not count, and the open mandate
to Jonker to purchase vehicles with
the money, only tends to support the assertion that he and Jonker had
a separate arrangement
with each other which was at the exclusion of
the plaintiff. In circumstances like these, it hardly lies in van
Heerden’s
mouth to say he thought he was dealing with the
plaintiff.
[58] Van Heerden
testified that he never saw or completed one of the plaintiff’s
standard order forms referred to by Muller.
Neither did he ever see
an electronically reproduced invoice form the plaintiff, only
handwritten invoices issued to him by Jonker.
This evidence does not
strengthen the defendant’s case. It rather provides
corroboration for the contention that Jonker used
old invoice books
when he entered into those transactions to the plaintiff’s
prejudice.
The 2008 Toyota 4x4
Truck
[59] It was the
defendants’ case that the second defendant purchased a 2006
Toyota Double Cab from the plaintiff and paid
for it with a cheque in
the amount of R160 000.00 but when the vehicle was delivered,
according to van Heerden, he noticed
it was a brand new vehicle. When
he drew Jonker’s attention to this fact, the latter assured him
that it was indeed an older
2006 model, but that its defective
odometer had recently been replaced. During the course of the trial
the defendants tendered
the return of the vehicle.
[60] This vehicle was
purchased by the plaintiff on 3 November 2008 from Toyota in
Humansdorp (trading as Kritmar Motors CC) for
the sum of R297 741.42,
according to a trading invoice from the aforesaid dealer in the
plaintiff’s bundle of evidence.
This could not be disputed by
the defendants. This evidence renders it very unlikely that the same
vehicle would be sold to anyone
(with the plaintiff’s knowledge
or approval) for R160 000.00, almost half of its value.
[61] Van Heerden’s
explanation was that he thought he was buying an older 2006 model of
the same vehicle, only to find after
its delivery, that it was a
newer model. Jonker explained that the vehicle was fitted with a new
odometer. This version has a false
ring to it and is most improbable.
The plaintiff’s case is that the second defendant bought two
Nissan bakkies for R160 000.00,
not the Toyota. Van Heerden’s
testimony confirmed that the plaintiff received the amount of
R160 000.00 from the second
defendant, and pleaded that it was,
not for the 2008 4x4 Toyota truck, but for two other vehicles, namely
two Nissan 1400 bakkies
at R80 000.00 each. Their stock numbers
were given as U10725 and U10726 respectively.
[62] The more important
fact is that this vehicle is registered in the plaintiff’s
name, that the defendants took possession
of the vehicles and in
their possession it acquired a false number plate reading “GOLF
3 EC”. Given that the second
defendant was developing a Golf
Estate at the time, the choice of this particular personalized
(false) number plate only weakens
the defendants’ case. At the
back of the cheque made out to the plaintiff were words which
constituted proof of allocation
of the payment, being the two
vehicles, stock numbers, U10725 and U10726 respectively, and that
they were sold for R80 000.00
each. There was also an invoice
for R75 000.00 from Atlantis Motors where the plaintiff bought
one of these bakkies. There
were also invoices made out to the second
defendant for R80 000.00 in respect of one of these trucks.
[63] The paper trail
presented in support of the plaintiff’s version does not prove
the sale with the same conclusiveness
as in the other instances. Yet
it is substantial proof and on the probabilities, the second
defendant bought two Nissan bakkies,
and not the 2008 4x4 Toyota
truck with the cheque in question. The price of R160 000.00
seems unrealistically low for the
Toyota truck in question, if one
has regard to the prices which were generally referred to during the
trial.
[64] In my view, the
defendants have no entitlement to the four vehicles or any money
allegedly paid for them, and the vehicles
should be returned to the
plaintiff.
The Defendants’
Unconditional Counterclaims
[65] The first claim
under the heading is the delivery of the two Nissan bakkies allegedly
bought for R70 000.00 each and as
part of a group of four such
vehicles, (bought in one transaction for the sum of R280 000.00).
Alternatively, the defendants
claim R140 000.00 as payment. The
defendants could not prove this purchase as demonstrated when dealing
above with the two
1.6 Litre Nissan trucks claimed in the plaintiff’s
rei vindicatio
action. The parties are
ad idem
that the
plaintiff sold the Colt to the second defendant. This particular sale
also included a trade-in, for a 2003 model Toyota
Hilux 4x4 truck.
The Colt was sold for the trade-in value of the Hilux for R75 000.00,
plus R15 000.00 cash. The invoice
for this transaction is dated
7 August 2008.
[66] According to van
Heerden’s warning statement he, on the same day, he bought the
2005 model BMW 318i for R87 000.00,
he also bought a Mazda 626
(2004 model) for R55 000.00, as well as a 2007 model Nissan 1400
truck for R25 000.00. Jonker
sourced these vehicles in
Johannesburg. He said he gave Jonker one cheque for R80 000.00
to, purchase these two vehicles.
Interestingly, he requested two
cheques (not one) from his bank which was made out to “A
Jonker” for R55 000.00
and R25 000.00 respectively.
According to Jonker, these vehicles were sold to Inspecta Motors in
Johannesburg for R230 000.00
(at very substantial profit) and
this amount was kept in Jonker’s desk drawer. R50 000.00
was added by van Heerden to
constitute the R280 000.00 with
which the four Nissan trucks were bought.
[67] The conditional
counterclaim for the repayment of R110 000.00 and R160 000.00
respectively ought to be dismissed.
It is clear from the aforesaid
that the second defendant did not pay the sum of R132 000.00 for
2000 model Mercedes Benz C270
motor vehicle and a Colt. The payment
was in respect of a 2004 model Mercedes Benz Classic bought by Auto
House Global on 28 July
2008 and an order form and bank account entry
in the plaintiff’s bank account provided proof thereof. It may
very well be
that Jonker misled the defendant, in this regard and
also other respects. The third counterclaim is another example
thereof.
[68] In respect of the
third counterclaim, van Heerden alleged that R160 000.00 was
paid for a Mercedes Benz CLS on 16 September
2008. The defendants
claim its delivery, alternatively repayment of the R160 000.00.
Although in its plea to the counterclaim
the plaintiff denied the
sale, Muller however, testified that the plaintiff did receive a
payment of R160 000.00 from the
second defendant. This was for
two Nissan trucks. The plaintiff’s paper trail, demonstrated by
Muller, showed that on 5 September
2008, the plaintiff bought two
Nissans from Atlantis Motors for R75 000.00 each and sold them
to the second defendant for
R80 000.00 each on 22 September
2008. Four separate invoices support the aforesaid. These trucks were
also licensed and delivered
to the second defendant. On the
probabilities, this is what occurred.
[69] Whereas there may
possibly be instances where the defendants, were defrauded by Jonker,
it cannot be accepted they lawfully
purchased all the vehicles
referred to in this matter with the
bona fide
intention of
expanding, minimizing or generally upgrading the second defendant’s
vehicle fleet. The prices paid for many
of the vehicles were far
below trade value and van Heerden knew, or ought to have known this.
On van Heerden’s own version
in his warning statement, he and
Jonker were engaged in a profit making relationship. Van Heerden and
Jonker speculated with vehicles
to that end. There is no doubt about
that. Many vehicles belonged to the plaintiff. Van Heerden is a
highly qualified businessman,
with many years of experience in
business. He must have known, or ought to have known, that Jonker was
dealing behind Muller’s
back at the plaintiff’s
disadvantage, at the very least.
[70] It seems that
Jonker wore two hats. He acted as salesperson for the plaintiff and
in his personal capacity for his own account.
This van Heerden must
have realised during the period when he and Jonker (his employee’s
husband), were speculating with
the vehicles. The paper work of the
purchases was done through the plaintiff, mostly on dodgy order
forms, yet there was sometimes
no delivery of the vehicles, hardly
any registration documents, and sometimes the vehicles weren’t
even seen. The defendants’
counterclaims, as stated before,
raised the question why there was no demand for these vehicles. One
would have expected that if
van Heerden genuinely believed that they
were dealing with the plaintiff.
[71] Jonker did not
have the necessary authority to act as he did. Van Heerden could not
possibly have believed that he did, and
therefore the plaintiff is
not estopped from relying on Jonker’s lack of authority. He was
clearly acting on a frolic of
his own. Insofar as the defendants were
defrauded by Jonker, they should look to him to compensate them for
their losses. The plaintiff
is not liable because the defendants’
losses were not as a result of the plaintiff’s conduct.
[72] In the
circumstances, I make the following order:
In Case Number
474/09
:
The defendants are to
pay the plaintiff the sum of R261 596.00, as well as interest
thereon at the prevailing legal rate,
from date of summons to date
of payment, jointly and severally, the one paying the other to be
absolved.
Mr Swanepoel of
Christo Swanepoel Attorneys is ordered to pay the sum as aforesaid
kept in his trust account, together with accumulated
interest
thereon, to the plaintiff’s satisfaction of the order in
paragraph (a).
The defendants’
counterclaim against the plaintiff under the above case number is
dismissed.
In Case Number
475/09
:
The Deputy Sheriff is
ordered to release the following vehicles in its custody or
safekeeping under the aforesaid case number
or case number 492/09
(in terms of the order dated 7 April 2009) to the plaintiff at 35-37
Voortrekker Road, Humansdorp:
One 2008 model
Mercedes Benz Vito Crew Bus, with chassis number WDF 6397032.
One 2008 Nissan 1.6
Bakkie with chassis number ADNUSNID5U0000841.
One 2008 Nissan 1.6
Bakkie with chassis number ADNUSNID5U0000981.
One 2008 Toyota Cab
Bakkie with chassis number AHTFZ29GX09030147.
The defendants’
conditional and unconditional counterclaims against the plaintiff
under this case number (475/09) are dismissed.
The defendants are to
pay the plaintiff’s cost of suit, jointly and severally, the
one paying the other to be absolved.
_________________
E REVELAS
Judge of the High Court
Counsel for Plaintiff:
Adv J Huisamen
Port Elizabeth
Instructed by:
Greyvensteins
St George’s House
104 Park Drive
Port Elizabeth
Counsel for Defendants:
Adv B Pretorius
Port Elizabeth
Instructed by: Jacques
du Preez
96 Mangold Stret
Newton Park
Port Elizabeth
Date Heard: 5 May 2011
Date Delivered: 29
March 2012