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[2022] ZAFSHC 320
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Jordaan N.O and Others v Azar & Havenga Inc. and Others (4956/2019) [2022] ZAFSHC 320 (17 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4956/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JACQUES
JORDAAN N.O.
First
Plaintiff
ERICA
CAROLINE JORDAAN N.O.
Second
Plaintiff
RENE
KEYTER
N.O.
Third
Plaintiff
And
AZAR
& HAVENGA
INC.
First
Defendant
PAUL
AZAR
Second
Defendant
And
MARGARETHA
DOROTHEA ELIZABETH BROODRYK
First
Third Party
JACOBUS
PETRUS BROODRYK
Second
Third Party
JUDGMENT
BY:
C
REINDERS, ADJP
HEARD
ON:
20
JULY 2022
DELIVERED
ON:
17
NOVEMBER 2022
[1]
The plaintiffs are the trustees of the Jacques Jordaan
Besigheidstrust (“the
Trust”). The first defendant is a
firm of attorneys. The second defendant is a director of the first
defendant and a practising
attorney. Mrs and Mr Broodryk are cited as
respectively the first and second third parties (collectively
referred to as “the
Broodryks”).
[2]
The plaintiffs issued summons
against the defendants praying for judgment against the first
defendant, alternatively the second defendant, for payment of the
amount of R 300 000-00 together with interest and costs.
Defendants filed a plea and simultaneously filed a notice in terms of
Uniform Rule 13 for indemnification. No plea was filed in
respect of
the said notice.
[3]
In the amended particulars of
claim the plaintiffs aver that it instructed the defendants
during
early 2018 to claim and recover from the Attorneys Fidelity Fund,
alternatively the Legal Practitioners Fidelity Fund (hereafter
for
ease of reference “the Fidelity Fund” in both instances),
the amount of R 300 000-00 in respect of money misappropriated
by a certain Mr Rothmann. Rothmann at the time was an admitted
attorney but has since been struck from the roll of attorneys
whilst
his estate has been sequestrated. It is averred that the defendants
accepted the instruction and pursuant thereto claimed
the said amount
from the Fidelity Fund. On 11
September 2018, so the
particulars aver, the fund made payment of the said amount to the
first and/or second defendant in accordance
with the claim. However,
despite receiving payment the first and/or second defendant failed to
make payment to the Trust.
[4]
In the alternative the plaintiffs aver that the first and/or second
defendants failed
to discharge their mandate with reasonable care and
skill in that the first and/or second defendant at the time acted for
a Mrs
Broodryk and was aware of the fact that the plaintiffs’
claim and the claim of Mrs Broodryk, were in respect of the same
transaction which related to the sale of the same immovable property.
The sale of Mrs Broodryk’s property therefore included
the
amount of R 300 000-00 and Mrs Broodryk was not entitled to
receive the R 300 000-00, as the plaintiffs were entitled
thereto.
[5]
It is alleged further in the alternative that the first and/or second
defendants failed
to exercise reasonable care and in breach of the
tacit, alternatively implied, term of the agreement made payment to
Mrs Broodryk
of an amount being inclusive of the amount of R
300 000-00 owing to plaintiffs, wherefore plaintiffs suffered
damages in the
amount of R 300 000-00. The defendants in their
amended plea aver that the plaintiffs instructed “the
defendants”
to claim from Rothmann or from the Fidelity Fund an
amount of R 386 960-00. It is averred that “the
defendants”
was instructed by the third parties (the Broodryks)
to claim from Rothmann or the Fidelity Fund the amount of R
527 234-84.
Pursuant to accepting the instructions, the
defendants executed its instructions by the plaintiffs and the third
parties. The first
and/or second defendant submitted a claim on
behalf of the plaintiffs against Rothmann, and by submitting a claim
against the Fidelity
Fund in writing. Copies of the respective claims
were annexed as annexures to the plea. The defendants aver that a
claim was filed
on behalf of the Broodryks against the Fidelity Fund
in writing and annexed a copy of the claim to its amended plea. It is
averred
that the amount of R 527 234-84 was successfully
recovered and an amount of R 517 705-88 paid over to the
Broodryks on
22 September 2018 “with the understanding that
they would repay the amount of R 300 000-00 to the Trust”.
[6]
Before the defendants filed their amended plea, the plaintiffs filed
a replication
denying all the allegations in the plea and joining
issue with the defendants.
[7]
The remainder of the allegations by the plaintiffs were denied which
therefore included
a denial that the Fidelity Fund on 11 September
2018 pursuant to plaintiffs’ claim, paid the amount of R
300 000-00.
Mr J Jordaan testified on behalf of the plaintiffs,
whilst Mr P Azar (the second defendant) and Mr JM Losper (employed by
the Fidelity
Fund), were called on behalf of the defendants.
[8]
According to Mr Jordaan the plaintiffs provide bridging finance in
respect of immovable
properties. He is aquinted with Mr Rothmann and
he confirmed that the Trust lent and advanced an amount of R
350 000-00 to
Rothmann. He has never seen the Offer to Purchase
in respect of the property sold by the Broodryks. He instructed
second defendant
to submit a claim to the Fidelity Fund on the
Trust’s behalf for payment of the amount of R 386 960-00,
and subsequent
thereto the second defendant addressed correspondence
to the Fidelity Fund for purposes of submitting a claim. The
correspondence
led him to believe that the claim of Mrs Broodryk had
been approved. He admitted not having had any dealings with the
Broodryks.
During cross-examination he testified that Mrs Broodryk
never signed an acknowledgement of debt in favour of the Trust. He
agreed
that Mrs Broodryk had a valid claim against the Fidelity Fund
for the balance due to her and that the claim of the Trust against
the Fidelity Fund related to bridging finance. He conceded that there
is no indication or proof for the contention that the Trust’s
claim had been approved by the Fidelity Fund and/or that any money
had been paid to the first and/or second defendant in respect
of the
Trust’s claim. He conceded that the Fidelity Fund confirmed in
writing that the Trust’s claim was not included
in respect of
the Broodryks claim.
[9]
Mr Azar testified that the Trust’s claim related to bridging
finance. The claim
on behalf of Mrs Broodryk was in terms of the
Offer to Purchase. Mrs Broodryk should have received R 1,3 million
from the sale
of her property and in the event an amount of R
227 234-84 was paid to her instead of R 527 234-84, she
would have received
R 300 000-00 less than what she was entitled
to. He stated that he was wrong in earlier correspondence where he
indicated
that the R 300 000-00 claimed by the Trust was
included in Mrs Broodryk’s claim, and he confirmed that the
Trust’s
claim was not duplicated in the claim of Mrs Broodryk.
He confirmed the recordal in writing by the Fidelity Fund that the
Trust’s
claim was not included in the claim of Mrs Broodryk. He
confirmed the Fidelity Fund to have repudiated the Trust’s
claim
whilst approving the claim of Mrs Broodryk.
[10]
Mr Losper confirmed the repudiation by the Fidelity Fund of the
Trust’s claim and confirmed
the approval of Mrs Broodryk’s
claim. He confirmed the approval of Broodryk’s claim based on
the affidavit and supporting
documentation filed by Mrs Broodryk.
[11]
It was not in dispute that the plaintiff bears the onus to prove its
case on a balance of probabilities.
In respect of the pleadings it is
trite that pleadings define the issues and that the object of
pleadings is to ascertain the issues
between the parties.
See:
Imprefed (Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A)
at 107 C-D.
[12]
The very essence of the plaintiffs’ cause of action as pleaded
is that on 11 September
2018 the Fidelity Fund made payment of the R
300 000-00 based on the plaintiffs’ claim to the said Fund
(as filed by
the defendant). In my view the plaintiffs in this
respect failed to prove its case on a preponderance of probabilities.
The plaintiffs
did not adduce any evidence to proof the
aforementioned allegations made in the particulars of claim. The
defendants, who did not
bear the onus, adduced the evidence of Mr
Losper in the employ of the Fidelity Fund. His evidence is clear. The
fund received the
plaintiffs’ claim, considered it and
repudiated it. The fund similarly received the claim of Mrs Broodryk.
It considered
her affidavit and the supporting documentation where
after the fund, based on Mrs Broodryk’s claim, approved her
claim and
made payment on her behalf into the trust account of the
first defendant. The long and the short thereof is therefore that the
Fidelity Fund did not pay any amount into the trust account of the
first defendant for or on behalf of the plaintiffs. The allegation
therefore by the plaintiffs that an amount was paid to the first
defendant in the first defendant’s trust account
in lieu
of the plaintiffs’ claim, is simply not so. The contrary is
true, namely that plaintiffs’ claim was rejected. The
plaintiffs therefore fail or have failed to prove vital allegations
in its cause of action.
[13]
None of the alternative claims assist the plaintiffs in view of the
uncontroverted evidence of
Mr Losper. Notwithstanding the second
defendant’s initial wrong viewpoint that the plaintiffs’
claim was included in
Mrs Broodryk’s claim, I am satisfied that
such viewpoint was not only wrong, but definitely not borne out by
the proven facts
or undisputed evidence of Mr Losper. A breakdown of
the calculation of Mrs Broodryk’s claim (as contained in
paragraph 6
of her affidavit) makes it clear that the amount of R
527 234-84 was due to her. I am in any event in agreement with
the submission
by counsel for the defendants that the second
defendant received a pertinent instruction from Mrs Broodryk to claim
an amount of
R 527 234-84 from the Fidelity Fund and upon
receipt of the relevant amount was bound by the terms of his mandate
to pay that
amount to Mrs Broodryk. He could not out of his own
accord pay any portion thereof to the Trust.
[14]
In these circumstances the plaintiffs’ claim cannot succeed and
stands to dismissed with
costs. I believe the same order should be
made in respect of the Rule 13 notice issued by the defendants. I
therefore make the
following orders:
14.1
The plaintiffs’
claim is dismissed with costs.
14.2
The defendants’
notice in terms of Uniform Rule 13 is dismissed with costs.
C
REINDERS, ADJP
On
behalf of the applicant:
Adv
JW Steyn
Instructed
by: Kramer
Weihmann Inc.
BLOEMFONTEIN
On
behalf of the first and second
respondents:
Adv
JA du Plessis
Instructed
by: Ditsela
Incorporated Attorneys
c/o
Honey Attorneys
BLOEMFONTEIN