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[2022] ZANCHC 30
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Barkley-Wes Motors CC v Iceburg Trading 507 CC and Others (1147/2016) [2022] ZANCHC 30 (27 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1147/2016
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
In
the matter between:
BARKLEY-WES
MOTORS CC
Plaintiff
and
ICEBURG
TRADING 507 CC
(trading
as CHRISTAL CARRIERS)
First Defendant
WOOGANATHAN
KRISHNASAMMY
Second Defendant
CHRISTAL
CLARE COLLEEN KRISHNASAMMY
Third Defendant
Coram:
Lever J
JUDGMENT
Lever
J
1. This is an action to
claim the outstanding balance on an account, in the amount of R458
457.49 (four hundred and fifty-eight
thousand four hundred and
fifty-seven Rand and forty-nine cents), for the sale of petroleum
products sold on credit, for the use
of the first defendant, from the
three defendants cited herein jointly and severally, the one paying
the others to be absolved.
2. The defendants have
raised two special pleas, the details of which will be set out and
dealt with presently. The defendants have
also pleaded over on the
merits.
3. The first special plea
raised by the three defendants reads as follows:
“
(a)
The Plaintiff’s claim is based on an oral agreement for the
sale and supply of petroleum products as
defined in the Petroleum
Products Act No: 120 of 1997 (as amended) (sic) (it is presumed that
the defendants intend to invoke Act
120 of 1977 as amended) by the
Plaintiff, as re-seller to the defendant, on terms that amount to a
credit sale.
(b)
In terms of section (sic) 4(1)(a) of Regulation R2298 governing the
sale and/or supply of petroleum products
as published in Government
Gazette GG9962 of 11 October 1985 (amended), no petroleum products
(petrol or diesel oil) shall be supplied
by a re-seller to (sic)
consumer other than against payment in cash.
(c)
The contravention of the above regulation, read with the provisions
of section 2(1)(d) and 12(1A) of the Act,
imposes a criminal sanction
for non-compliance with the regulation.
(d)
Accordingly, the agreement relied upon by the Plaintiff is contrary
to law, void and therefore unenforceable.”
4. To this the plaintiff
replicated as follows:
“
1.1
Save to admit that the Plaintiff’s claim is based on an oral
agreement for the sale and supply of petroleum
products as defined in
the Petroleum Products Act 120 of 1997 (sic)(it is also assumed that
the plaintiff also intends to refer
to Act 120 of 1977) and that the
contravention of Regulation 4(1)(a) of the Act (sic) imposes a
criminal sanction for non-compliance
with the regulation, the
remainder of the allegations set out in these paragraphs are denied,
as if specifically traversed, and
the Defendants are put to the proof
thereof.
1.2 The
Plaintiff specifically pleads that the oral agreement between the
Plaintiff and the Defendants is not void,
but enforceable.”
5.
The second special plea filed by the defendants reads as follows:
“
The Defendants
aver that the above Honourable Court does not have jurisdiction to
hear this matter in that the amount claimed is
less than the monetary
jurisdiction of the above Honourable Court. Alternatively (sic) the
defendants have paid to the plaintiff
through its agent the amount of
R208 000 and accordingly the balance owing to plaintiff does not fall
within the monetary jurisdiction
of the above Honourable Court.”
6.
The plaintiff replicated to this special plea in the manner set out
hereunder:
“
2.1
The Plaintiff denies the allegations set out in these paragraphs.
2.2
The Plaintiff specially pleads that:-
2.2.1
the Plaintiff’s claim is for an amount of R458 547,97; and
2.2.2
this Court has inherent jurisdiction to adjudicate claims,
irrespective of the monetary amount thereof.”
7. Turning now to the
first special plea set out above, it is clear from the special plea
itself that it was based upon the regulation
4(1)(a) R2298
published in Government Gazette GG9962 on the 11 October 1985. This
regulation stated in prohibitory
terms that sales of petroleum
products may only be for cash, and it was clear from the said
regulation read with the relevant Act
that sale on credit would
constitute an offence.
8.
Shortly before the matter was argued before me, I pointed out to both
Counsel for the plaintiff and the defendant that regulation
4(1)(a)
as it was set out in R2298 of the 11 October 1985 had been repealed
by regulation R731 published in Government Gazette
32389 on the 9
July 2009. That this new regulation published on the 9 July 2009
applied to the plaintiff’s claim, which according
to
plaintiff’s Declaration arose during September or October 2015.
The wording of Regulation 4(1) clearly no longer created
an offence
in the circumstances set out in defendants’ first special plea.
9. Ms Stanton, who
appeared for the plaintiff and Mr Babuseng who appeared for the
defendants were given an adequate chance to confirm
the situation and
effect of the 2009 regulations repealing the 1985 regulations. At the
hearing hereof Mr Babuseng correctly abandoned
the first special
plea. In these circumstances, the first special plea does not need to
enjoy any further consideration.
10. Turning now to the
second special plea raised by the defendants, being that the monetary
value of the plaintiff’s claim
alternatively
the amount
owed by the defendants does not fall within the monetary jurisdiction
of this court being a division of the High Court.
11.
The
Magistrates Courts derive their monetary jurisdiction from the
relevant statutes and regulations promulgated thereunder
[1]
.
In the Magistrates Courts this is usually set as an upper limit and
is usually determined and set by the relevant Minister from
time to
time. This is not the case in respect of any Division of the High
Court. The position is regulated by section 21 of the
Superior Courts
Act
[2]
(the Act). The High Court
also derives jurisdiction from the common-law and it has inherent
jurisdiction in other respects.
12. The upper monetary
limits created for Regional and District Magistrates Courts cannot
and does not create a lower monetary limit
for the High Court. This
is quite clear from reading the relevant provisions of the respective
Acts. Section 21 of the Act sets
no monetary limits on the
jurisdiction of a High Court either as a minimum or a maximum amount.
The upshot of this is that a High
Court has concurrent jurisdiction
with Regional and District Magistrates Courts with regard to the
monetary value of a claim.
13. However, High Courts,
when confronted with a monetary claim that falls within the monetary
jurisdiction of a Magistrates Court,
will traditionally award the
successful party who instituted a claim in the High Court instead of
the appropriate Magistrates Court,
costs on the appropriate
Magistrates Court scale. This is however not an inflexible rule, and
the High Court has the discretion
to award costs to such a litigant
on the High Court scale in the appropriate circumstances.
14. I mention the issue
of costs because this is the only aspect of the monetary jurisdiction
of the Magistrates Court Act that
has any application in the High
Court.
15.
For the reasons set out above, the second special plea relating to
the mooted monetary jurisdiction of the High Court stands
to be
dismissed with costs.
16.
Turning now to the merits of the matter. Three issues arise out of
the pleadings for determination by this court. Firstly, are
all three
defendants jointly and severally liable to pay the plaintiff’s
claim, should it be established. Secondly, the defendants
allege that
a certain Mr Ross Henderson was the plaintiff’s representative
and the said Mr Henderson acted as the plaintiff’s
agent in
receiving money paid by the first defendant to the plaintiff and the
first defendant paid Mr Henderson the amount of R208
000.00 (two
hundred and eight thousand Rand). Thirdly, if the agency of Mr
Henderson has been established has the payment of R208
000.00 been
established by the defendants.
17. The plaintiff has led
the evidence of two witnesses being, Lourens Martinus Van Heerden
(Junior) and Gabriel Willem Andries
Van Heerden (Senior) the only two
members of the plaintiff.
18. On behalf of the
defendants’, only Wooganathan Krishnasammy, the second
defendant, gave evidence on behalf of all three
defendants.
19. Turning to deal with
the first question set out above. The relevant portions of the
plaintiff’s declaration dealing with
this aspect appear from
paragraphs 3 to 6 of the said declaration. The relevant paragraphs
read as follows:
“
3.
On or during September or October 2015 and at Barkly-Wes, the
Plaintiff, represented by GWA van Heerden,
entered into a verbal
agreement with the Second Defendant, the Third Defendant and the
first defendant, duly represented by its
authorised members, the
Second and/or Third Defendants.
4.
The relevant explicit and/or implied and/or tacit terms of the verbal
agreement were:-
4.1 The
Plaintiff would sell diesel to the First Defendant and/or Second
Defendant and/or Third Defendant on credit;
4.2 The
Plaintiff would render an account to the First Defendant on the 25
th
day of each month in respect of the diesel sold to the First
Defendant in respect of the 1
st
day to the 24
th
day of every month;
4.3 The
First Defendant and/or the Second Defendant and/or the Third
Defendant agreed to pay the account rendered
by the plaintiff to the
First Defendant on or before the 25
th
day of the following
month; and
4.4 The
First Defendant and/or the Second Defendant and/or the Third
Defendant agreed to pay interest to the Plaintiff,
calculated at the
1,15% per month in respect of any amount not paid on due date
thereof.
5.
During the period 1 March 2015 to 30 January 2016 the Plaintiff sold
diesel to the First Defendant
and/or Second Defendant and/or Third
Defendant on credit to the total amount of R4 135 949.44 as set out
in annexure A hereto.
6.
The First Defendant and/or Second Defendant and/or Third Defendant
failed to make payment of the
amount of R458 457.49, which amount
remains outstanding, despite demand.”
20. In their plea over,
defendants pleaded as set out hereunder to the said paragraphs of
plaintiff’s Declaration:
“
5.
AD PARAGRAPH 3 THEREOF
The allegations contained
herein are not denied.
6.
AD PARAGRAPH 4 & 4.1 THEREOF
The Defendants admits
(sic) that the plaintiff sold diesel to the First Defendant on credit
but avers that the sale of petroleum
products on credit is illegal
and repeats the averments made in the special plea as if specifically
incorporated herein.
7.
AD PARAGRAPH 4.2 THEREOF
The allegations contained
herein are not denied.
8.
AD PARAGRAPH 4.3 THEREOF
The allegations contained
herein are denied. The Defendants plead that only the First Defendant
agreed to pay the account rendered
by the Plaintiff to the First
Defendant on or before the 25
th
day of the following
month.
9.
AD PARAGRAPH 4.4 THEREOF
The allegations contained
herein are denied and Plaintiff is put to the proof thereof.
10.
AD
PARAGRAPH 5 THEREOF
The allegations contained
herein are denied. The Defendants plead that during the period 01
March 2015 to 30 January 2016 the Plaintiff
sold diesel to the First
Defendant only. The Defendants admit that the first defendant
purchase (sic) diesel in the amount of R4
135 949-44 as set out in
annexure “A”.
11.
AD
PARAGRAPH 6 THEREOF
The allegations contained
herein are denied. The Defendants plead that the amount of R208 000
was paid by the First Defendant to
the Plaintiff’s
representative, Mr Ross Henderson, who agreed and made arrangements
to pay such monies over to the plaintiff.
The Defendants plead that
Ross Henderson acted as the agent of the plaintiff and undertook all
dealings for and on behalf of the
Plaintiff and all monies due and
payable to the plaintiff were paid to Mr Ross Henderson by the First
Defendant, in order that
same could be paid over to the plaintiff.”
21. Save for a one word
response by the plaintiff’s first witness, Van Heerden Jnr, to
a leading question as to plaintiff’s
claim being against the
first, second and third defendants and a follow up question as to who
the negotiations were with and that
both the second and third
defendants acted in both their personal and representative capacities
in the said negotiations and that
the diesel was sold to the first,
second and third defendants, neither of the witnesses called on
behalf of the plaintiff gave
any further evidence pertinent to the
joint and several liability of the three defendants in their
testimony before this court.
Save for the reference to the defendants
as joint purchasers, there is no evidence as to what the underlying
basis was for holding
the three defendants jointly and severally
liable for what the evidence showed was the use of fuel by the first
defendant. The
evidence of Van Heerden Jnr went no further than to
allege that the three defendants were joint purchasers. The evidence
of Van
Heerden Jnr that the second and/or third defendants own the
first defendant is irrelevant to this question.
22. Accordingly, this
question of whether the three defendants are jointly and severally
liable for the relevant debt will have
to be resolved from the
relevant portions of the pleadings, which have been set out above
taken together with the evidence already
referred to above.
23. At best from the
plaintiff’s Declaration the three defendants were joint
purchasers, but can this position be sustained
from the case as
pleaded by the parties and the evidence placed before this court?
24. As can be seen from
the pleadings as set out above:
24.1. Second, third and
first defendants entered into an agreement with plaintiff;
24.2. First defendant was
represented by its duly authorised members being second and third
defendants;
24.3. It emerges from the
plea to paragraph 4.1 of the Declaration that although the
indications are that the defendants intended
to plead that diesel was
only sold to the first defendant, the defendants are deemed to have
admitted that the sale of diesel on
credit would be to the first
defendant and/or the second defendant and/or the third defendant;
24.4. Paragraph 4.2 of
the plaintiff’s Declaration tends to show that diesel was in
fact sold to the first defendant;
24.5. The said paragraph
4.2 is admitted by the defendants in their plea;
24.6. In their plea to
paragraph 4.3 of plaintiff’s Declaration, defendants
specifically plead that only first defendant agreed
to pay for the
respective diesel;
24.7. The clear
implication of the plea to paragraph 4.3 of the declaration is that
defendants deny the contention that second and
third defendants
agreed to pay for the said diesel;
24.8. Defendants’
in their plea to paragraph 5 of plaintiff’s Declaration
expressly plead that during the relevant period
diesel was sold to
the first defendant only; and
24.9. Defendants’
denied the contentions made by the plaintiff in paragraph 6 of the
plaintiff’s Declaration.
25. The pleadings of both
the plaintiff and the defendants could have been drawn with greater
precision and clarity. I believe that
I must read the respective
pleadings contextually and holistically. From such a reading of the
pleadings, in my view plaintiff
intended to plead that the defendants
were joint purchasers who would be jointly and severally liable with
each other for payment.
It also emerges that the defendants intended
to plead that only the first defendant purchased the diesel concerned
and that only
the first defendant would be liable to pay for such
fuel.
26. In the circumstances,
the onus of proving its claim was against joint purchasers who
contractually agreed that the defendants
would be jointly and
severally liable to pay for such purchases would fall on the
plaintiff. This Onus would need to be discharged
on a balance of
probabilities. From an analysis of the pleadings and the evidence
referred to above, I do not believe that plaintiff
has discharged
this onus. The probabilities show that the first defendant was the
purchaser of the fuel concerned and that the
first defendant was
liable to pay for such fuel. On the probabilities, plaintiff has not
established that second and third defendants
were jointly and
severally liable with the first defendant to pay for such fuel as was
sold to the first defendant.
27. Turning now to the
second question to be determined on the merits, being whether the
defendants have established that Mr Ross
Henderson was appointed as
the plaintiff’s agent to receive payment on plaintiff’s
behalf.
28. At this juncture the
credibility and reliability of the respective witnesses called on
behalf of the plaintiff and the defendants
comes into consideration.
Although at one point Van Heerden Snr appeared to be confused about
the total sales of diesel to the
first defendant, he otherwise
impressed the court as a reliable and honest witness. There was no
confusion in regard to his evidence
that Mr Ross Henderson played no
role in the plaintiff’s transaction with the defendants. Mr Van
Heerden Snr’s evidence
was not shaken in cross-examination.
29. Mr Van Heerden Jnr,
the first witness for the plaintiff also impressed this court as a
reliable and honest witness. His evidence
was that he knew Mr
Henderson by sight as Mr Henderson was an acquaintance of his father,
Van Heerden Snr. He and his father discussed
important business
decisions as they had been in business together for some 15 years. Mr
Van Heerden Jnr’s evidence was also
not shaken in
cross-examination. There were no material inconsistencies between the
evidence of Van Heerden Jnr and Van Heerden
Snr. On this aspect, the
evidence of Van Heerden Snr and Van Heerden Jnr that Ross Henderson
did not act as the plaintiff’s
agent to collect outstanding
amounts due by the first defendant is not in any way inherently
improbable.
30. The second defendant,
Wooaganathan Krishnasammy, gave evidence on behalf of the defendants.
His evidence was not reliable in
a number of respects. In his
evidence-in-chief he contended that he was instructed by Van Heerden
Snr to make all payments due
to the plaintiff to Mr Ross Henderson.
Mr Krishnasammy further testified in his evidence-in-chief that after
the summons was served
on the defendants the first defendant made no
further payments to the plaintiff at all. It is common cause that the
summons commencing
action was served on all three defendants on the
21 July 2016.
31. The defendants
discovered and produced in court eight documents that the second
defendant maintained evidenced payments by the
first defendant to Mr
Ross Henderson for the benefit of plaintiff. In his
evidence-in-chief, as set out above, he maintained there
were no
payments after summons commencing action was served on the
defendants. In cross-examination Ms Stanton directed Mr
Krishnasammy’s
attention to the dates of such purported
payments. Mr Krishnasammy was constrained to admit in
cross-examination that the dates
of all of these purported payments
was after the date that summons commencing action was served. His
explanation that he was confused
by the dates, in such circumstances
is not convincing at all, nor is it plausible.
32. In cross-examination
Mr Krishnasammy was asked again why he paid Mr Henderson after
summons was served. Mr Krishnasammy’s
answer to Ms Stanton’s
question simply did not make sense. The only conclusion that I can
reach from this situation is that
Mr Krishnasammy had no credible
answer to the question why he paid any amount to Mr Ross Henderson
after the summons commencing
action in this matter was served on all
three defendants.
33. A further indication
that Mr Krishnasammy’s evidence was not reliable is that during
the evidence of the plaintiff it
emerged that there was a further
payment in the amount of R50 000.00 (fifty thousand Rand) made
directly to the plaintiff after
the matter had been handed to the
plaintiff’s attorney for collection. This appears from a
statement of amounts received
at page 45 of the plaintiff’s
bundle. This was confirmed by Van Heerden Jnr. This was never
challenged in cross-examination.
It was also never dealt with by Mr
Krishnasammy in his evidence. In these circumstances, this court can
safely accept that such
payment was made by the first defendant. This
runs counter to Mr Krishnasammy’s evidence that Van Heerden Snr
had during
that time frame instructed him to make all future payments
to Mr Ross Henderson. The failure to challenge this evidence in
cross-examination
or deal with it in the evidence-in-chief of Mr
Krishnasammy renders the defendant’s version on the agency of
Mr Ross Henderson
as improbable.
34. Another difficulty
with the evidence of Mr Krishnasammy is that he acknowledged that
even if the payment of R208 000 to Mr Ross
Henderson was accepted he
still owed plaintiff in the region of R250 000 (two hundred and fifty
thousand Rand). However, he then
testified that the first defendant
would be entitled to a discount. The entitlement to a discount was
never pleaded. It was also
never put to any of the plaintiff’s
witnesses when they were cross-examined. Further, the fact that Mr
Krishnasammy was unable
to give a specific amount that the first
defendant owed the plaintiff on its version casts further doubt on Mr
Krishnasammy’s
evidence.
35. Mr Krishnasammy gave
this court the impression that he was opportunistic in the evidence
that he gave. As illustrated above
in relation to the evidence on a
discount. When he was challenged with what would flow from that
evidence, such as provide a definite
amount the first defendant owed
the plaintiff his response lacked any credibility at all.
36. Further doubt is cast
upon the defendants’ version in relation to Mr Ross Henderson
by virtue of the fact that defendants
failed to adduce the evidence
of Mr Henderson. The court was merely informed before the defendants
closed their case that Mr Henderson
was not available. It is not an
exaggeration to say that Mr Henderson’s evidence would have
been key to the defendants establishing
their case. Yet they took no
tangible steps to secure his evidence. There was no subpoena for him
to appear in court to testify
in this matter. There was no subpoena
duces tecum
for Mr Henderson to produce the relevant banking
records where the defendants’ payments were allegedly made.
37. Furthermore, the
alleged payments by the first defendant to Mr Henderson are nothing
more than pieces of paper wherein alleged
payments are allegedly
evidenced. There was easily available evidence which could have
added substance to the contentions
that the first defendant paid Mr
Ross Henderson as alleged and for the alleged purpose. The first
defendants own bank statements
for the relevant period were not
discovered or produced. These statements could have proved that the
relevant amounts were indeed
paid by the first defendant on the
alleged dates. If Mr Henderson’s banking records were
subpoenaed
duces tecum
and they were consistent with the
banking records of the first defendant, whilst not conclusive, this
would have gone a long way
towards swinging the pendulum in the
defendants’ favour. The fact that the defendants did not take
these steps must certainly
weigh against them.
38. On the question of Mr
Ross Henderson’s alleged agency for the plaintiff it is trite
that the defendants have the onus
of proof by application of the old
adage “He who asserts must prove”. Naturally this will be
proof on a balance of
probability.
39. Having regard to all
of the difficulties referred to above, the defendants have not
discharged the burden of proof that Mr Ross
Henderson acted as the
plaintiff’s agent as they have alleged.
40.
Turning to
the last question as to whether the defendants have established
payment in the amount of R208 000 to Mr Henderson. When
a defendant
pleads a payment, the onus is on such defendant to both allege and
prove such payment.
[3]
41. Again, the documents
discovered by the defendants by themselves do not establish the
actual payment. If they had been corroborated
by the first defendants
own banking records for the relevant period as well as banking
records of Mr Ross Henderson for the corresponding
period subpoenaed
duces tecum
, that might have been another matter. The fact
that the defendants took no steps to secure such records indeed
counts against them.
The defendants, on a balance of probabilities
have not discharged the onus of proving such payments.
42. The fact that the
first defendant is indebted to the plaintiff is not in dispute after
all the evidence is considered. The amount
of such indebtedness was
disputed initially but the defendants have not established on a
balance of probabilities that such payments
were made to the
plaintiff’s agent. Further, the defendants have not established
on a balance of probabilities that such
payments were made at all.
For the reasons set out above, the defendants’ evidence on
these aspects has been rejected.
43. The plaintiff has
sought a prayer declaring that the verbal agreement has been validly
cancelled. This relief was not seriously
pursued by the plaintiff. It
has never been the defendants’ case that the agreement
concerned is still valid and enforceable.
In the circumstances of
this case, I cannot see the need for granting such relief.
Accordingly, no such order will be made.
44. The last aspect to
consider is the issue of costs. Neither the plaintiff nor the
defendants advanced reasons why the ordinary
rule that costs should
follow the event should not be applied. In the circumstances I
believe that costs should follow the event.
In
the circumstances, the following order is made:
1) The first defendant is
to pay the plaintiff the amount of R458 457.49 (four hundred and
fifty-eight thousand four hundred and
fifty-seven Rand and forty-nine
cents).
2) First defendant will
pay interest on the above amount at the current
mora
rate from
date of service of summons until date of payment.
3) First defendant will
pay the costs of the action.
______________________
Lawrence
Lever
Judge
Northern
Cape Provincial Division, Kimberley
APPEARANCES:
PLAINTIFF:
Adv A Stanton oio Engelsman Magabane Inc.
DEFENDANTS:
Adv B Babuseng oio Magoma Attorneys
Date
of Hearing: 03 June 2021
Date
of Judgment: 27 May 2022
[1]
Section 29(1)(g) as read with section 29(1A) of the Magistrates
Courts Act 32 of 1944 (the
Magistrates Courts Act).
[2
]
Act 10 of 2013.
[3]
STANDARD BANK v ONEANATE INVESTMENTS (IN LIQUIDATION)
[1997] ZASCA 94
;
1998 (1)
SA 811
(SCA) at 823D-E.