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[2024] ZAFSHC 89
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D.H and Another v L.M.R.H (A73/2023) [2024] ZAFSHC 89 (26 March 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A73/2023
In
the matter between:
D[…]
H[…]
First
Appellant
S[…]
H[…]
Second
Appellant
and
L[…]
M[…] R[…] H[…]
Respondent
CORAM:
MHLAMBI, J
et
LOUBSER, J
et
CHESIWE, J
HEARD
ON:
6 OCTOBER 2023
DELIVERED
ON:
26 MARCH 2024
JUDGMENT
BY:
CHESIWE, J
Introduction
[1]
The appellants are before the Full Court with
leave to appeal having been granted by the Supreme Court of Appeal
(SCA) on 28 February
2023 against the whole judgment granted on 29
June 2022.
[2]
The appellants filed an application for
condonation for the late filing of the appeal application. The
condonation application was
granted in court with no objection from
Counsel on behalf of the Respondent.
[3]
The appellants’ main grounds of appeal are
that the Court
a quo
erred in not finding that the money was a loan and that there was no
evidence of the existence of a verbal loan agreement between
the
First Appellant and the Respondent.
[4]
The Court
a quo
dismissed the Appellants’ claim with costs. Therefore, the
Appellants seek that the Full Court upholds the appeal and find
in
favour of the Plaintiff.
Background
[5]
The First Appellant is the father to the Second
Appellant and the Respondent. During 2018, the Respondent was
involved in a divorce
action with her husband. The Respondent, in not
wanting to lose her house, approached the First Appellant for an
amount of money
which was equivalent to half the value of the
property in order to buy out the husband.
[6]
The First Appellant, with the assistance of the
Second Appellant, advanced an amount of R536 000,00 (five hundred and
thirty-six
thousand rands) to the Respondent on 18 June 2018.
[7]
The Respondent in her plea, pleaded that she
received an amount of R300 000, 00 (three hundred thousand rands)
from the First Appellant
and R240 000, 00 (two hundred and forty
thousand rands) from the Second Appellant. However, she denied that
the amounts were a
loan advanced to her by the Appellants.
[8]
Counsel on behalf of the Appellants, Adv.
Bahlekazi, conceded in oral arguments as well as in the written heads
of argument that
the parties, as father and daughter, did not specify
when and how the loan must be repaid. Further that the Court
a
quo
only considered that there was no
indication between the parties as to when the money was to be paid
back. Counsel submitted that
the Respondent knew that the money was a
loan and was to be repaid. Furthermore, the Court
a
quo’s
judgment did not consider
the probabilities of the Appellants having given the Respondent such
huge sums of money and not expecting
it to be paid back.
[9]
Counsel on behalf of the Respondent, Adv. Van der
Merwe, submitted in oral argument as well as in the written heads of
argument
that the Appellants’ case that there was a verbal loan
agreement between a father and daughter was not pleaded by the
Appellants.
Further that the date on which the agreement was reached
was not specifically pleaded. Moreover, Counsel submitted that the
Appellants’
particulars of claim were vague, nor did the
Appellants seek any amendment to their particulars of claim. Counsel
submitted that
the Appellants failed to prove their case before the
Court
a quo
,
therefore the appeal ought to be dismissed with costs.
Issues for determination
[10]
The issues for determination by this Court are
whether the trial Court erred in dismissing the Appellants’
claim and not making
a finding whether the money advanced was a loan.
[11]
The Appellants' contention is that the money was
loaned to the Respondent with the agreement that the money would be
used by the
Respondent to buy her husband out of his share of the
property. Further that the First Appellant is the Respondent’s
father
and the parties did not enter into written loan agreement.
[12]
Respondent’s contention is that there was no
loan agreement. The first payment
made was for an upgrade to the Respondent’s vehicle, however,
this changed to having to
buy the husband out of his share of the
communal immovable property.
[13]
The
trial Court’s findings
[1]
are as follows:
“
It
is apparent from the particulars of claim that the First Plaintiff
did not plead the existence of either a written, oral, or
tacit loan
agreement. Further the date on which the alleged loan agreement was
reached and the place where the agreement was reached
was not
pleaded. It was merely pleaded as highlighted in this Judgment that
the Defendant approached the First Plaintiff for a
loan in 2018 and
that amount was advanced to her on 18 June 2018.
No
material terms and conditions of the alleged loan agreement were
pleaded. In particular, the date or time period for repayment
of the
alleged loan amount and consequent breach of the alleged loan amount
by virtue of the Defendant’s failure to make
repayment on an
agreed date or time period has not been pleaded.”
[14]
With
reference to
Petzer
v Dixon,
[2]
the First Appellant and Respondent did not deal with each other
at arm’s length when the money was advanced. And true
to form,
the advancement was not dealt with as would have been in terms of the
National Credit Act 34 of 2005
.
[15]
Based on the burden of proof by the First Appellant
and proof on the
balance of probabilities, the Court
a quo
found that failure
by the Appellants to produce sufficient evidence to establish
prima
facie
that the Respondent had
animus
contrahendi
and that the monies advanced and accepted by the Respondent and
purported as a loan to be repaid, stood to be dismissed.
[16]
The Court
a
quo
placed
undue weight on the pleadings
ex
facie
,
the existence of a loan agreement and the terms thereof being in
dispute. And for this reason, one “
takes
from these dicta then the cue that where versions collide,
probability must be examined.”
[3]
[17]
Applying
the common-sense approach,
Respondent before the money was advanced to her by the First
Appellant, had sought a loan from a financial institution. Respondent
had approached Capitec Bank for a loan with the following noted
[4]
:
“
MR
BAHLEKAZI
: …I just want to take, maybe [sic], is you said
went to Capitec to make a loan?
MS LMR H[…]
:
Yes
MR BAHLEKAZI
: When
did you go to Capitec to make a loan?
MS LMR H[…]
:
It was prior, in June, before, not prior. It was after, because I can
remember during that, that is when I knew, because I thought
my
husband would be lenient and say we are having kids, you can take the
house. So we were fighting for the house. So I made the
loan after I
actually knew the value of the house, spoke to my father and then.”
[18]
At trial, First Appellant testified that he and
Respondent are in a familial relationship and that the Respondent
came to him asking
for the money as she was divorcing her husband and
needed to buy the husband out of his share of the property.
The
Respondent’s case as pleaded was predicated on an admission of
receipt of R300 000, 00 (three hundred thousand rands)
from the First
Appellant and R240 000, 00 (two hundred and forty thousand rands)
from the Second Appellant. However, she denies
that these amounts
were advanced as a loan.
[19]
It was put
to the First Appellant during cross examination that he informed the
Respondent that he would “pay her back for
groceries and
household expenses.”
[5]
[20]
In view of the above, the First and Second Appellants
were called
upon to prove the loan agreement and its terms and conditions on a
balance of probabilities.
[21]
There are challenges in proving the existence of an
agreement between
parties, more so proving tacitly the terms and conditions without it
being written.
[22]
Respondent acknowledges having received the money, though
denies that
it was a loan. Instead, the Respondent pleaded that it was for an
upgrade for her vehicle. However, the version of
the Respondent that
the First Appellant gave her the money for buying the husband out of
the property is more probable as that
was achieved and the Respondent
retained the house.
[23]
The evidence demonstrated, at least, on a balance
of probabilities,
First Appellant as a pensioner would have
not advanced to the Respondent such a huge sum of money as
acknowledgment of the assistance
received for household expenses and
not expect it to be paid back. The First Appellant saw it as an
opportunity for the Respondent
not to be homeless and therefore
advanced the money to her as his financial position at the time
allowed.
[24]
Initially, to advance the monies, in the context of
familial
relationships, a father and daughter would not in the slightest
moment have thought to go with a formalistic approach
of drafting a
contract with terms and conditions. The probabilities in this regard
favour the First Appellant.
[25]
It is not
in dispute that monies were given to and received by the Respondent
and indeed secured her the property she needed from
the divorce. The
Respondent may deny that the money was a loan, but amounts were
advanced. Further that, having approached the
Capitec Bank after the
valuation of the property, the loan was declined, and with the First
Appellant having been in a position
to initially only advance R300
000, 00 (three hundred thousand rands), an inference is drawn that
the total sum of R540 000, 00
(five hundred and forty thousand rands)
advanced to the Respondent was a loan.
[6]
[26]
In the
particulars of claim,
[7]
the
First Appellant pleaded to having advanced on 18 June 2018 an amount
of R536 000, 00 (five hundred and thirty-six thousand
rands) to the
Respondent. During examination in chief at the trial,
[8]
and further as noted by the trial Court,
[9]
the Respondent testified having asked if she could not
borrow
(my
emphasis) the full amount. A transfer of R4 000, 00 (four
thousand rands) and R536 000, 00 (five hundred thirty-six
thousand rands) was made to the Respondent.
[10]
[27]
In
City
of Cape Town v Mtyido
[11]
, the Court held as
follows:
“
A court of appeal
will generally not interfere with findings of credibility made by a
trial court, because the trial court would
have had the benefit of
observing the witnesses when testifying unless those findings are
clearly wrong. Similarly, an appeal court
will not lightly interfere
with the factual findings made by a trial court.”
[28]
Even if the First Appellant did not plead the existence
of a written
or oral or tacit agreement, nor did the Respondent plead that the
particulars of claim were vague and did not disclose
a cause of
action.
[29]
Adv. Bahlekazi, indicates in the written heads of argument
that the
Court
a quo
did not deal with the probabilities in the
evaluation of the case when it is clear that
prima facie
evidence was presented to show that in the least, a sum of R536 000,
00 (five hundred thirty-six thousand rand) was paid over and
accepted
by the Respondent for consumption. On her own admission, Respondent
stated that she managed to utilize the money to buy
her husband out
of his share of the property.
[30]
Indeed, no
implied nor tacit terms exist that have conditions of a contract,
[12]
however upon evidence led by the First Appellant, and the Respondent
equivocated between various versions why the money was ‘advanced’,
the strength of the Respondent’s evidence as against whether
the First Appellant has succeeded in discharging the onus on
a
preponderance of probabilities of the existence of a verbal loan
agreement was not achieved.
[13]
[31]
The evidence demonstrated that the First Appellant and
the Respondent
are in a familial relationship. The Respondent gave as evidence, the
initial reason why the First Appellant was
to advance monies to her,
which later changed to the version not in dispute, this being the
ability for the Respondent to buy her
husband out of his share of the
property.
[32]
The First Appellant is adamant that the sum of R536
000, 00 (five
hundred and thirty-six rands) was a loan which the Responded denies.
The findings by the Court
a quo
are that the First Appellant
did not prove the existence of a loan agreement, its terms and
consequent breach thereof on a balance
of probabilities.
[33]
In
National
Employers’ General Insurance Co Ltd v Jagers
,
[14]
the
Court said the following:
“
It seems to me,
with respect, that in any civil case, as in any criminal case, the
onus can ordinarily only be discharged by adducing
credible evidence
to support the case of the party on whom the onus rests. In a civil
case the onus is obviously not as heavy as
it is in a criminal case,
but nevertheless where the onus rests on the plaintiff as in the
present case, and where there are two
mutually destructive stories,
he can only succeed if he satisfies the Court on a preponderance of
probabilities that his version
is true and accurate and therefore
acceptable, and that the other version advanced by the defendant is
therefore false or mistaken
and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test
the plaintiff’s
allegations against the general probabilities.
The estimate of the credibility of a witness will therefore be
inextricably bound
up with a consideration of the probabilities of
the case and, if the balance of probabilities favours the plaintiff,
then the Court
will accept his version as being probably true. If,
however the probabilities are evenly balanced in the sense that they
do not
favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless
believes him and is satisfied that his evidence is true
and that the defendant’s version is false.”
[34]
I am inclined not to agree with the Court
a quo
as this was
not a normal commercial contract and should not have been treated as
such. However, the Court
a quo
in weighing up and with the
test of the First Appellant’s allegations against the general
probabilities, and in finding in
favour of the version of the
Respondent and in accepting it, was a misdirection on the part of the
trial court.
[35]
The
argument by Mr. Van der Merwe that no mention was made that the money
be returned, and that this was not a loan, cannot stand.
Fact remains
and as per Annexure “A”
[15]
,
R536 000, 00 (five hundred and thirty-six thousand rands) was
transferred to the Respondent. This was the amount which the First
Appellant evidenced to have given to the Respondent.
[36]
The Respondent in her own words indicated that she approached
the
First Appellant and asked if she could
borrow
the whole amount
of R540 000, 00 (five hundred and forty thousand rands), however, she
disputed this during cross-examination.
It is therefore my opinion
that the Court
a quo
misdirected itself in not finding that
the Respondent, by her own evidence, had
animus contrahendi
.
[37]
There was a
factual issue before the Court
a
quo
,
and one on appeal before this Court, the existence of a loan
agreement on a balance of probabilities, which brings into question
the approach to assessing the evidence as noted in the case of
The
South African Bank of Athens v 24 Hour Cash CC
.
[16]
[38]
In my view, the version of the First Appellant is more
probable.
Therefore, the appeal against the judgment of the trial Court ought
to succeed.
Costs
[39]
There is the general rule that costs follow the event.
In this
instance, I see no reason to grant costs in favour of the Appellants,
including costs of the petition to the SCA.
[40]
In the circumstance, the following order is made:
1.
The appeal succeeds with costs, including the costs of the
application
for leave to appeal to the SCA.
2.
The order of the trial court is set aside and replaced with the
following:
2.1
An order directing the Defendant to pay the amount
of R536 000, 00
(five hundred and thirty-six thousand rands)
to
the First Plaintiff;
2.2
No interest will be payable.
3.
The Defendant to pay the costs of suit.
S
CHESIWE, J
I
concur
J
MHLAMBI, J
I
concur
P
LOUBSER, J
On
behalf of the Appellant:
Adv.
NM Bahlekazi
Instructed
by:
Mlozana
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
HJ Van der Merwe
Instructed
by:
McIntyre
Van der Post
BLOEMFONTEIN
[1]
At para 13 and 14, page 300
[2]
(A07/2023)
[2023] ZAWCHC 63
(24 March 2023)
[3]
South African Bank of Athens v 24 Hour Cash CC (A3027/2016) [2016]
ZAGPJHC 217 (11 August 2016)
[4]
Page 264, line 18 – 25 of the transcribed record.
[5]
Page 48, line 20 of the transcribed record.
[6]
(See page 189 – Loan was declined by Capitec due to
affordability)
[7]
Plaintiff’s
Particulars of Claim, page 7, para 5.
[8]
Page
185 of the transcribed record.
[9]
Page
303 of the papers
[10]
Annexure “A”: Copy of bank statement dated 24 February
2020, page 10 of the Index to Appeal Record.
[11]
(1272/2022)
[2023] ZASCA 163
(1 December 2023)
[12]
(See
South African Maritime Safety Authority v Fafie Fortune Mckenzie,
2010 ZASCA (2))
[13]
South African Maritime Safety Authority v McKenzie (017/09)
[2010]
ZASCA 2
;
2010 (3) SA 601
(SCA);
[2010] 3 All SA 1
(SCA); (2010) 31
ILJ 529 (SCA);
[2010] 5 BLLR 488
(SCA) (15 February 2010)
[14]
1984(4) 437 (ECD) 440 D-G. See
also
Stellenbosch Farmers' Winery Group Ltd. and Others v Martell &
Cie and Others
2003 (1) SA 11
(SCA) at para 5.
[15]
Index to Appeal Record, page 11.
[16]
(A3027/2016) [2016] ZAGPJHC 217 (11 August 2016)