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2023
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[2023] ZAFSHC 205
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Simply Workwear CC v Seventh Trading 643 CC and Another (3055/2021) [2023] ZAFSHC 205 (31 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 3055/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SIMPLY
WORKWEAR CC
Plaintiff
(Registration
No: 2[...])
And
SEVENTH
TRADING 643 CC
First Defendant
(Registration
No: 2[...])
PUSELETSO
CONSOLIDATION MOLUTSI
Second Defendant
HEARD
ON:
02
September &
02 November 2022
Written heads of argument
delivered on 14 December 2022, 20 & 25 January 2023.
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 31 MAY 2023 at 15H00.
[1]
The plaintiff issued summons against the defendants seeking payment
of the amount
of R655 000.00 with interest and costs from the
first defendant. In respect of the second defendant, the plaintiff
seeks an
order authorising the Sheriff of this court to sign all
documents necessary for the transfer of the second defendant’s
immovable
property to the plaintiff.
[2]
The claim arises from personal protection equipment and /or gear
(PPE) supplied by
the plaintiff to the first defendant but not paid
for.
[3]
In the Plea, it is undisputed that a consignment of PPE worth
R1 614 199.06
was duly delivered by the plaintiff, invoices
were rendered and some payments were made by the first defendant
except for the balance
of R655 000.00. It is also common
cause that the second defendant provided security for the due
payments.
[4]
The claim is resisted on the grounds that an extension for payment
was requested as
the plaintiff had oversupplied the orders and it was
agreed between the parties that payment will only be made after the
first
defendant had sold the oversupplied stock to its client (the
Municipality). It is the defendants’ case that there is also
a
batch of the order which is not in accordance with the agreed
specifications. In this regard, it was agreed that defective goods
will be returned to the plaintiff and the first defendant’s
account will be credited.
[5]
Mr Rehaan Anverali (Anverali) gave evidence for the plaintiff’s
case. He is
the sole member of the plaintiff’s business. He
testified that during June 2020 he received a call followed by an
email from
the second defendant requesting a quotation for the supply
of PPE. Following the quotation, Anverali met the second defendant
accompanied
by her son Mr Lebohang Molutsi (Molutsi). A partly oral
and partly cession agreement was consequently concluded between the
plaintiff
represented by Anverali and the first defendant represented
by the second defendant in terms of which, the plaintiff agreed to
deliver PPE equipment and/or gear to the first defendant and would
thereafter render invoices which the first defendant undertook
to pay
within ninety (90) days of receipt.
[6]
Anverali stated that the written part of the agreement is the cession
agreement in terms of which the second defendant ceded her rights to
the immovable property situated at erf 1[...] P[...], in Harrismith
as security for the due, proper and timeous payment for the goods.
[1]
[7]
The relevant part of the cession agreement is clause 1, it reads
thus:
“
PURCHASE
PRICE
The purchase price is
R1 000 000.00 (ONE MILLION RAND) and payable as follows:
1.1
The purchaser will provide the certain goods to the seller for the
amount of the purchase
price which amount will be confirmed by the
seller on the respective invoices.”
[8]
In terms of the cession agreement, the second defendant handed over
the
title deed of the said property to the plaintiff. At that time,
the property was valued between R500 000.00 and R600 000.00
and it was also agreed that if the first respondent fails to pay for
the invoices by 15 September 2020 the plaintiff would be entitled
to
receive transfer of the second defendant’s immovable property.
[9]
Pursuant to the conclusion of the cession agreement, the plaintiff
delivered
and also issued invoices for various orders of PPE.
[10]
It was his testimony that the first defendant only started making
payments from 7
December 2020 by making several staggered payments
ranging from R50 000.00 to R200 000.00 and then stopped. A
letter
of demand was then issued against the defendants on 26 May
2021
[2]
at this stage the first
defendant was indebted to the plaintiff in the amount of R750 000.00.
The letter of demand did not
yield any positive results consequently,
the plaintiff issued summons prompting the first defendant to pay an
amount of R150 000.00.
The first defendant still owes the
plaintiff R505 000.00.
[11]
Anverali told the court that the first defendant provided no
explanation for failing to pay the balance
due and at no stage did
the first defendant complain about an oversupply or defective PPE.
[12]
Under cross-examination, he conceded that Molutsi is the director of
the first defendant’s business
and that he was not cited as a
co-defendant in these proceedings. His explanation was that it was
probably a “typing error.”
[13]
He was adamant that the cession agreement was duly signed by the
second defendant in the presence of
both Molutsi and the defendants’
attorney of record Mr Ditan who also signed the agreement as a
witnesses.
[14]
He disputed the defendants’ version that payment could not be
made as the first defendant had
not received payments from the
Municipality by referring this court to the first defendant’s
bank statements
[3]
which reflect
that on 7 May 2021 approximately two weeks before the plaintiff
issued a letter of demand, the first defendant had
received about
R1.3 million from the Municipality.
[15]
At the end of the plaintiffs’ case the defendants applied to be
absolved from the instance.
It was the defendants’ case that
the plaintiff has failed to adduce evidence to prove its claim. I
exercised my discretion
and refused absolution holding that on the
defendants’ own version (paragraphs 4 to 7 and 9 to 10 of the
defendants’
plea) the liability to pay is not disputed. The
first defendant has also made some payments pursuant to the issuing
of summons
therefore, based on these reasons, the
defendants should be called to their defence.
[16]
In denial of their liability the defendants led the evidence of
Molutsi who confirmed that he is the
sole director of the first
defendant and that the second defendant is his mother. He admitted
that the transaction was initiated
by the second defendant who had
contacted Anverali for quotations and placement of orders. He also
confirmed that pursuant to the
said communication, the first
defendant ordered PPE gear from the plaintiff for an amount of
R1 614 199.06.
[17]
He stated that the invoices issued in that regard were paid except
for the balance of R650 000.00
and the reason for the
outstanding payment is attributed to the plaintiff’s failure to
deliver the goods in accordance with
the agreed specifications and
for also oversupplying or delivering double the quantity of the goods
ordered and it is in that regard
that it was agreed between the
plaintiff and the first defendant that the orders with incorrect
specifications will be returned
for credit and with regard to the
oversupplied orders the plaintiff will be paid once these orders were
sold to the Municipality.
[18]
The validity of the cession agreement is also disputed. Mr Molutsi
denied that the second defendant
signed the said agreement on the
date and at the place alleged by the plaintiff. It was also his
testimony that the second defendant
was in any event not authorized
to conclude any agreement on behalf of the first defendant.
[19]
Under cross-examination, Molutsi admitted that since then, no items
were returned or even tendered
back to the plaintiff.
[20]
That was in short the evidence tendered by the respective parties’
witnesses in addition thereto,
documentary evidence was also handed
in by the concurrence of both the parties as Exhibit “A”,
“B” and
“C”.
[21]
After all the evidence has been proffered the issue of whether the
first defendant is indebted to the
plaintiff is in my view, neatly
resolved by Anverali’s concise and convincing evidence
pertaining to the circumstances under
which the agreement to deliver
the PPE was concluded by the plaintiff and the first defendant duly
represented by the second defendant.
His version that the plaintiff
has performed its obligations in terms of the said agreement by
supplying the PPE and that the first
defendant defaulted on its
payments with the result that the first defendant is currently
indebted to the plaintiff in the amount
of R550 000.00 is
indisputable.
[22]
On the other side, the defendants’ case is riddled with
inconsistencies. In the plea it
is averred that an indulgence
was requested for the payment to be made once the first respondent
had received payment from the
Municipality. At the trial, when
Molutsi was confronted with evidence (Exhibit “A19-46”
and “B”) that at
the time the first defendant defaulted
on the payments the Municipality had already paid over R1.3 million
he raised a new defence
by alluding to an agreement concluded by the
parties in terms of which the first defendant would return some of
the goods as they
were not in accordance with the agreed
specifications and this is despite the fact that:
22.1
The allegations about the plaintiff’s failure to fulfil its
obligations in terms of the agreement
were not pleaded;
22.2
Anverali’s evidence that at no stage did the first defendant
complain about the delivery was
uncontested; and
22.3.
There was no attempt made even after the action was instituted to
return the supposedly faulty and oversupplied
goods instead, the
first defendant made a payment of R150 000.00 after summons was
issued.
[23]
Molutsi’s evidence was also vague and contradictory. He sought
to dispute the validity of the
agreement pertaining to the sale and
delivery of the PPE on the basis that it does not exist and the
second defendant had no authority
to conclude same on behalf of the
first defendant on the other side, he admits that the plaintiff
delivered the PPE at the first
defendant’s instance and
request.
[24]
The cession agreement is disputed on the grounds that the second
defendant did not sign such an agreement.
It is important to note
that the second defendant who is privy to the facts surrounding the
conclusion of the cession agreement
elected not to testify. The
defence’s case rested on Molutsi’s testimony who on his
own admission, he was not privy
to the facts peculiar to the
conclusion of the cession agreement. Furthermore, in terms of
paragraph 4 and 5 of the plea no dispute
exists regarding the cession
agreement and its provisions.
[25]
Evidence is either probable or not. Having regard to the
discrepancies and the improbabilities
that exist in the defendants’
version, I have come to the conclusion that their defence is false,
clearly a contrived afterthought
concocted to avoid liability.
[26]
I am satisfied that the plaintiff has adduced sufficient evidence to
prove its claim
against the first defendant on a preponderance of
probabilities. It follows therefore that the plaintiff’s case
ought to
prevail.
[27]
Regarding the plaintiff’s entitlement to the transfer of the
second defendant’s immovable
property, I am not persuaded that
this relief is available to the plaintiff as ancillary to the order
sought for the due payment
but in the alternative for the reason
that, it is common cause that the second defendant’s liability
arises from the accessory
obligation for “the due, proper and
timeous payment” of the plaintiff’s account in the event
of non-payment by
the first defendant. It is trite that “payment
usually serves to extinguish a debt” and “a debt is after
all
fulfilled and extinguished through payment”. See
Brayton
Carlswald (Pty) Ltd and Another v Brews.
[4]
A cession cannot stand where the principal debt has been extinguished
by payment.
[5]
[28]
In conclusion, I am of the view
that the plaintiff has substantially
succeeded
in its claim accordingly, the first defendant should bear the costs
of this suit.
[29]
I make the following order:
1. The
first defendant is ordered to pay the plaintiff the amount of
R505 000.00 (FIVE HUNDRED AND FIVE THOUSAND
RAND) together with
interest at the rate of 7% per annum, from date of demand to date of
final payment.
2. The
first defendant shall pay the costs, including the costs reserved on
17 May 2022 and 31 August 2022.
N.S. DANISO, J
APPEARANCES:
Counsel on behalf
of Plaintiff:
Adv. B. Gradidge
Instructed by:
N. Moola
Incorporated
C/O Honey Attorneys
BLOEMFONTEIN
Counsel on behalf
of Defendants:
Mr. B. Ditan
Instructed by:
Ditan Attorneys
C/O MC Radebe
Attorneys
BLOEMFONTEIN
[1]
Exhibit “A3-12” is a copy of the deed of sale agreement.
[2]
Exhibit “A13-14”.
[3]
Exhibit “A19-46” and “B”.
[4]
2017
(5) SA 498
(SCA) at 505 para 19C-D.
[5]
Grobler
v Oosthuizen
2009
(5) SA 500
(SCA)
([2009]
3 All SA 508
; [2009] ZASCA.