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2022
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[2022] ZAFSHC 157
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Herclass and Another v Herclass (2322/2021) [2022] ZAFSHC 157 (29 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Case
no
.
2322/2021
Reportable:
YES
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DAVID
HERCLASS
First
Plaintiff
SYLVIA
HERCLASS
Second
Plaintiff
and
LETSHEGO
MIRRIAM ROSY HERCLASS
Defendant
CORAM:
DE
KOCK, AJ
HEARD
ON:
12
APRIL 2022 AND 13 APRIL 2022
JUDGMENT
BY:
DE
KOCK, AJ
DELIVERED:
This
Judgment was handed down electronically by circulation to the
parties’ representatives by e-mail and released to SAFLII.
The
date and time for handing down is deemed to be 13h00 on 29 June 2022.
INTRODUCTION:
[1]
The First Plaintiff claims payment of the amount of R536 000.00
together with
interest and costs from the Defendant. It is
pleaded in the particulars of claim that the Second Plaintiff is
cited in the
proceedings only because the money lent to the Defendant
was channelled through her account.
[2]
The essence of the First Plaintiff’s claim is pleaded as
follows in the particulars
of claim:
“
4.
The First Plaintiff is the father
of the Defendant. During the year of 2018 the Defendant was
involved in a divorce matter
with her husband. The Defendant,
who did not want to lose her immovable property as a result of the
divorce, approached the
1
st
Plaintiff to
loan her an amount equal to half of the value of the property so that
she could buy her husband out of the property.
5.
As a
parent who was looking after the interest of his child, the First
Plaintiff advanced an amount of R536 000.00 (five hundred
and thirty
six thousand rand) on 18 June 2018 to the Defendant.
”
[3]
The Defendant in her Plea pleaded that she received an amount of
R300 000.00
from the First Plaintiff on or about 18 June 2018
and that she received an amount of R240 000.00 from the Second
Plaintiff
on or about 18 June 2018. It is further pleaded in
the Defendant’s Plea that the Defendant denies that the amount
of
R536 000.00 or any portion thereof was advanced to her by the
First Plaintiff as a loan.
[4]
It appears
ex facie
the pleadings before this Court that the
existence of a loan agreement and the terms thereof are in dispute.
[5]
It was submitted on behalf of the Plaintiffs that because, the
Defendant admitted
that she received the money, the onus shifted to
her to prove on a balance of probabilities that the money she
received was not
a loan as stated by the Plaintiffs. Counsel
for the Plaintiffs in support of the latter submission referred to
the matter
of
Pillay v Krishna and Another
1946 AD 946.
It was
further submitted that the statement that no evidence was presented
by the First Plaintiff as to where, when, and how the
purported
verbal loan agreement was concluded is far from the truth. It
was submitted that the First Plaintiff was approached
by his daughter
seeking a loan to pay her husband’s half share in their house
as she was divorcing her husband. It
was also submitted that
the latter averment is supported by the Defendant in her evidence.
It was submitted that the Defendant
has stated in her evidence that
in June 2018 she was approached by her father and asked him:
“
Can you borrow me the whole
amount of R540 000.00
?”
[6]
It was also submitted that the latter was confirmed by the Second
Plaintiff.
[7]
It was submitted on behalf of the Defendant that the First Plaintiff
failed to produce
sufficient evidence to establish
prima facie
that the Defendant had
animus contrahendi
in respect of
the sum of R536 000.00 after she received R540 000.00 from
the First and Second Plaintiffs in that no
prima facie
evidence
was presented to show that the specific sum of R536 000.00 was
advanced to and accepted by the Defendant as a loan
for consumption
to be repaid. It was further submitted that the Plaintiffs bore
the risk of losing if the evidence on the
existence of the agreement
and/or the terms thereof was ultimately found to be lacking. It
was consequently submitted that
the claim should be dismissed for
costs for this reason alone.
[8]
Accordingly the Court needs to adjudicate the issues as to whether
the First Plaintiff
has proved and pleaded the existence of a loan
agreement and the specific terms of such a loan agreement.
APPLICABLE
LEGAL PRINCIPLES:
[9]
In
Minister of Agriculture and Land Affairs and Another v De Klerk
and Others
2014 (1) SA 212
(SCA) at para [39]
Majiedt, JA said:
“
It is
trite that the parties are bound by their pleadings – the
object thereof being to delineate the issues to enable the
other
party to know what case has to be met. It is impermissible to
plead one particular issue and to then seek to pursue
another at the
trial.
”
[10]
In the matter of
EC Chenia and Sons CC v Lame and Van Blerk
[2006] ZASCA 10
;
2006
(4) SA 574
(SCA)
it was held that it is necessary to allege and
prove unequivocal conduct that establishes the parties intended and
did in fact
tacitly contract on the terms alleged. regard will be had
to the conduct of all the parties objectively.
[11]
In accordance with the
Kriegler v Minitzer and Another
1949 (4) SA
821
(A)
the person who claims relief must assert and prove the
facts on which that claim is based. If the defendant instead of
merely
denying the Plaintiffs’ version of a contract, adduce
different terms as a defence, the onus will remain on the Plaintiff
to prove his version of the contract in order to succeed with the
claim.
[12]
In the matter of
South African Reserve Bank v Leathern N.O. and
Others
2021 (5) SA 543
(SCA) at para [17]
it was held:
“
Generally,
where money is deposited into a bank account of an account-holder it
mixes with other money and by virtue of commixtio,
it becomes the
property of the bank. The account holder has no real right of
ownership of the money standing to his credit
but acquires a personal
right to payment of that amount from the bank arising from the bank
customer relationship.
”
THE
COURT’S FINDINGS:
[13]
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
(my own emphasis).
[14]
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.
[15]
During examination in chief the First Plaintiff was asked by his
Counsel how the Defendant was
going to refund him. Counsel for
the Defendant raised an objection that testimony is being led to a
term of the alleged loan
agreement which has not been pleaded in the
particulars of claim. The Court pointed out that indeed no such
term has been
pleaded in the particulars of claim. The
Plaintiffs’ legal representatives did not take the issue
further.
[16]
The First Plaintiff testified that the Defendant promised to refund
him after the Defendant’s
divorce. It has however not
been pleaded in the particulars of claim that it was in fact agreed
that the alleged loan would
be repayable after the Defendant’s
divorce. No amendment of the particulars of claim to the latter
effect was either
requested.
[17]
During examination in chief the First Plaintiff was asked whether
from the time that the money
was given to the Defendant up until the
summons was issued or the letter of demand was issued to the
Defendant the First Plaintiff
and the Defendant discussed anything
about the Defendant returning the money that the First Plaintiff has
given. The First
Plaintiff answered that they have never done
it. The First Plaintiff testified that the Defendant only said
she will return
the money, but she did not explain when. The First
Plaintiff contradicted himself with this evidence opposed to his
evidence that
the Defendant promised to repay him after the divorce.
[18]
The First Plaintiff further testified during cross-examination that
the First Plaintiff and the
Defendant did not agree about the
repayment date and did not reduce it to writing.
[19]
It was put to the First Plaintiff during cross-examination that he is
saying that he loaned R536 000.00
of his money to the Defendant
but that he cannot explain to the Court where the payment of
R240 000.00 comes from. The
First Plaintiff replied that
he did not know whether the money was coming from the union or what.
His best guess that it
was coming from the union. Further the
First Plaintiff testified that the R240 000.00 was not paid from
his account,
when he was referred to the bank statements of the
Second Plaintiff. In regard to the R300 000.00 the First
Plaintiff
testified that he cannot remember exactly about the
R300 000.00 whether he loaned it to the Defendant. He stated
that he was
a bit confused. He testified that the Defendant
would refund his money the amount of R500 000.00 plus but, that
he cannot
remember the R300 000.00.
[20]
When questioned during cross-examination to explain the allegation
that the sum of R536 000.00
that was his money that was
channelled through the Second Plaintiff’s account, the First
Plaintiff failed to supply a full
and proper explanation and only
stated that he instructed the Second Plaintiff to draw money from his
bank account and pay it to
the Defendant.
[21]
The Second Plaintiff admitted during cross-examination that the
account from which the R240 000.00
was paid was an account held
by her in her name that she had free and full access to the money,
that she did not account to the
First Plaintiff in respect of the
account and that she could use the account freely. The funds of
the First Plaintiff comingled
with the funds of the Second Plaintiff
through the concept of
commixtio
and it is no longer possible
to identify the amount paid by the First Plaintiff if any as the
exclusive property of the First Plaintiff.
At best the Second
Plaintiff had a personal right to instruct the bank to pay the funds
in the account to her or another nominated
person.
[22]
The First Plaintiff did not produce any documentary evidence to prove
the sum of R240 000.00
was his money, for instance his own bank
statements or proof of payments.
[23]
The Plaintiff did not testify in isolation “
Can’t you
borrow me the whole amount of R540 000.00?
” but
testified
“…
you
promised me an upgrade. So on the upgrade monies that you
promised me which was R300 000.00 can you please give me
the
money. I actually did not start, yes I started with R300 000.00
but firstly I started with can you not borrow me
the full amount for
the house. Then he was like no, I cannot give you the full
amount for the house. I do not have
that kind of cash, but I am
able to give you the R300 000.00…
”
[24]
The Defendant further testified:
“
So I
was like in, to my father can you advance me the amount in cash
rather than upgrade my vehicle because I want to buy my husband
out.
So he was like in okay for now, I do not have that amount of cash to
give you the full amount for the house because
it was R540 000.00
something due to transfer costs and all that. So it is like in
I can only give you the R300 000.00
that I promised you.
”
[25]
The onus rested on the First Plaintiff to prove the existence of a
loan agreement, its terms
and consequent breach thereof on a balance
of probabilities. The onus thus rested on the First Plaintiff
to firstly prove
that the alleged loan which includes proof of the
anterior question whether both parties had a requisite
animus
contrahendi
and secondly the material terms and conditions agreed
upon including the
amount
of the loan and the
date of
repayment
(my own emphasis).
[26]
The Court agrees with the Defendant that the First Plaintiff failed
to produce sufficient evidence
to establish
prima facie
that
the Defendant had
animus contrahendi
in respect of the sum of
R536 000.00 after she received R540 000.00 from the First
and Second Plaintiffs. No
prima facie
evidence was
presented to show that the specific sum of R536 000.00 was
advanced to and accepted by the Defendant as a loan
for consumption
to be repaid.
[27]
The First Plaintiff failed to prove the creation of contractual
obligations. The First
Plaintiff has failed to prove the
establishment of a contract from which rights may flow. The
First Plaintiff did not prove
or plead that there was indeed
consensus
ad idem
between the First Plaintiff and the
Defendant as to the conclusion of a loan agreement and the terms
thereof. The First Plaintiff
most certainly failed in proving
the existence of a loan agreement containing a contractual term
stipulating when the alleged amount
was due and payable by the
Defendant. The letter of demand that was sent to the Defendant
does not assist the First Plaintiff.
It was not pleaded, and no
evidence was led to the effect that the alleged loan amount was
repayable on demand. No onus rested
on the Defendant to prove
her defence. The Defendant did not raise any special defence.
Taking all into consideration
the First Plaintiff’s claim
stands to be dismissed without further ado.
ORDER:
[28]
In the circumstances the Court grants the following order:
1.The First
Plaintiff’s action is dismissed with costs
DE
KOCK, A.J.
Appearances
on behalf of the Plaintiffs:
Counsel
-
Advocate N
M Bahlekazi
Attorney
- Mlozana
Attorneys,
Suite B, Property Park, 60 Kellner Street,
Westdene,
Bloemfontein
Appearance
on behalf of Defendant
:
Counsel
-
Advocate AJ
van der Merwe
Attorney
- J J
Kachelhoffer,
McIntyre & Van der Post, 12 Barnes Street,
Westdene,
Bloemfontein