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[2023] ZAECMKHC 57
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Transnet SOC Ltd v Zepe N.O (2771/2017) [2023] ZAECMKHC 57 (25 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MAKHANDA)
CASE
NO.: 2771/2017
Matter
heard on: 23 March 2023
Judgment
delivered on: 25 April 2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between: -
TRANSNET
SOC LTD
Plaintiff
and
BAATILE
PENELOPE ZEPE N.O.
(in
re: THE DECEASED ESTATE OF
MTHUTHUZELI
ALLEN ZEPE)
Defendant
JUDGMENT
SMITH J:
[1]
The plaintiff instituted civil action against the deceased estate of
the late Mthuthuzeli Allen
Zeppe (the deceased), claiming arrear
rental arising out of three rental agreements concluded between it
and the deceased. The
claims are, respectively, for the payment of
R726 233.49; R1 295 275; R2 512 017.88, and
for ancillary
relief.
[2]
All three lease agreements have expired, but the deceased remained in
occupation of the properties
until he was evicted by virtue of a
court order issued on 6 December 2021.
[3]
The terms of all three lease agreements were substantially the same,
except for the descriptions
of the various leased properties. Apart
from the usual conditions relating to the lessee’s liability
for rental, rates, taxes
and other charges, the agreements also
provided that a certificate issued by the plaintiff’s financial
manager, director,
company secretary, credit manager or internal
accountant, shall constitute
prima facie
proof of the
deceased’s indebtedness.
[4]
In its plea, the defendant, while admitting the terms of the
contracts, baldly denied liability.
[5]
At the trial, the plaintiff adduced the evidence of Mr Willem van
Zyl, its Acting Finance Manager.
Mr van Zyl is also the Regional Head
of the plaintiff’s Eastern Cape Properties Division.
[6]
Mr van Zyl testified that accounts payable by the plaintiff’s
lessees are reconciled by
its accountants on a daily basis, in
accordance with its standard operating procedures. He would
thereafter verify the data and
entries in order to ascertain that the
outstanding balances are correctly reflected. The transactions in
respect of the defendant’s
three leases were also reconciled
and verified in this manner. He has also certified the correctness of
the entries by appending
his signature to the reconciliations done on
18 March 2023. He said that all three accounts reflect that the
defendant last made
payments during November 2015. He confirmed that
the amounts claimed by the plaintiff in respect of the three leases
have been
correctly reflected in the reconciled certificates, and
that those are in fact the amounts owed by the defendant for arrear
rental
in respect of the three leased properties.
[7]
Although Mr van Zyl was cross-examined by Mr Mzamo, who appeared for
the defendant, the correctness
of the amounts stated in the
certificates were not disputed, neither was any different version put
to him. No other witnesses were
called to testify.
[8]
As mentioned, in terms of the lease agreements, the certificates of
balance introduced into evidence
by Mr van Zyl constituted
prima
facie
proof of the defendant’s indebtedness to the
plaintiff. This evidence was not challenged in any manner, neither
did the defendant
adduce any evidence to rebut that presumption.
[9]
There can accordingly be little doubt that the plaintiff has
succeeded in proving the defendant’s
indebtedness in respect
all three claims on a balance of probabilities.
[10] It
is common cause that the agreements provide for costs to be awarded
on the attorney and client scale.
[11] In
the result the following order issues:
11.1. In
respect of Claim A:
(i)
Judgment
in the amount of R726 233.49;
(ii)
Interest
on the aforesaid amount calculated in terms of clause 38.1 of the
Lease Agreement.
11.2. In
respect of Claim B:
(i)
Judgment
in the amount of R1 295 275.55;
(ii)
Interest
on the aforesaid amount calculated in terms of clause 38.1 of the
Lease Agreement.
11.3. In
respect of Claim C:
(i)
Judgment
in the amount of R2 512 017.88.
(ii)
Interest
on the aforesaid amount calculated in terms of clause 38.1 of the
Lease agreement.
11.4. Costs
of suit on the attorney and client scale.
JE SMITH
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the Plaintiff
Adv.
N. Msizi
Netteltons
Attorneys
118A
High Street
MAKHANDA
(Ref.:
Ms. I Pienaar/Sam)
Counsel
for the Defendant
Adv.
C. Mzamo
Baatile
Penelope Zepe N.O.
C/o Yokwana Attorneys
10
New Street
MAKHANDA
(Ref.:
Mr. Yokwana)