About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2022
>>
[2022] ZAECMKHC 50
|
|
Van Onselen N.O. and Another v De Jager N.O. and Another (CA 196/2021) [2022] ZAECMKHC 50 (2 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
:
MAKHANDA
Case
No:
CA 196/2021
In
the matter between:
PHEIFER
VAN ONSELEN
N.O.
1
st
Appellant
SUSARA
LOVINA VAN ONSELEN
2
nd
Appellant
and
WERNER
DE JAGER
N.O.
1
st
Respondent
SEAN
MARION JOHNSON
N.O.
2
nd
Respondent
FULL
BENCH APPEAL JUDGMENT
GRIFFITHS
J:
[1]
The appellants are the trustees of Ozzies Besigheid Eindoms Trust
(“the trust”)
and the respondents are the trustees of the
insolvent estate of Mr. Andrew Michael Rose (“Rose”). The
appellants have
appealed against a judgment of the High Court in
terms of which the appellants were ordered to pay the amount of
R2 136 405.53
to the insolvent estate.
[2]
The matter had its genesis in a sale by Rose of his farms
[1]
to the trust in terms of a written deed of sale dated 23 June 2006.
In terms of the agreement the aggregate purchase price was
the sum of
R3 million. As to the manner of payment of the purchase price the
agreement contained an imprecise term which was apparently
drafted in
this fashion as Rose was financially strained. Because of its
importance to this matter, this clause is set out below:
“
2.
Koopprys
Die koopprys van die
eiendom is in die som van R2 515 000.00 (twee miljoen vyf
hundred and vyftien duisend rand) en die
koop prys van die toerusting
en oes op land is in die som van R485 000.00 (vier hondred vyf
en tagtig rand).
Betaalbaar deur die koper
aan die Verkoper as volg:-
2.1 die
koper en die Verkoper kom ooreen dat die koper die uitstaande bedrae
verskuldig aan die Verkoper se skuldeisers
soos per Aanhangsel A,
direck aan die skuldeisers sal betaal na datum van ondertekening van
hierdie ooreenkoms. Die bedrae verskuldig
aan die twee verbandhouers,
Landbank en ABSA, sal vereffen word op datum van registrasie van die
transaksie;
2.2 die
Verkoper sal aan die Koper ʼn lening verskaf vir die balans van
die koopsom betaalbaar op terme en
voorwaardes soos deur hulle
ooreengekom sal word”.
[3]
Roughly translated, this clause reads as follows:
2.
PURCHASE PRICE:
The purchase price of the
property is in the sum of R2 515 000.00 (two million five
hundred and fifteen thousand rand)
and the purchase price of the
equipment and crop on the land is in the sum of R485 000 (four
hundred and
eighty-five
thousand rand).
Payable by the purchaser
to the seller as follows:
“
2.1
The purchaser and the seller agree that the purchaser shall pay
directly to the seller’s creditors all outstanding amounts
owed
by the seller to his creditors as per annexure A after the date of
signature of this agreement. The amounts owing to the two
bondholders, Landbank and ABSA, will be paid on registration of the
transaction.
2.2 The seller will
afford the purchaser a loan for the balance of the purchase price
payable on terms and conditions as will be
agreed by them.
[4]
Thus, from a practical point of view, the purchase price of R3
million was to be paid/settled
in the following manner:
1.
The trust was to settle the amounts due to
Rose’s creditors and the sum thereof would be deducted from R3
million;
2.
The balance remaining after this exercise
would be loaned by the trust to Rose on terms and conditions to be
agreed between them.
[5]
The farms were registered in the name of the trust on 5 July 2007. On
15 December
2011, Rose’s estate was sequestrated, and the
respondents were appointed as the trustees in his insolvent estate.
On 20 February
2013, the trustees instituted action against the
trust
[2]
in which they sought an
order that the appellants render a full accounting, supported by
vouchers, of all payments made by them
in respect of the purchase
price together with a debatement thereof and an order for the payment
of the difference between the
amounts paid by the appellants and the
purchase price, together with ancillary relief.
[6]
The trust pleaded specially that the claims had become prescribed.
The special plea
was adjudicated as a separate issue and was upheld.
On appeal to the full bench of this
c
ourt,
that order was reversed and the special plea of prescription was
dismissed.
[7]
The remaining allegations in the particulars of claim germane to the
issues raised
on appeal read as follows:
“
6C.
Defendants have failed, despite having been requested to do so, to
provide proof of the alleged indebtedness of Mr. Rose or
the alleged
payments reflected in the list, annexure “B”
[3]
.
7. By the terms of the
Agreement of Sale Defendants impliedly, alternatively tacitly,
undertook to render an accounting to Seller
of such payments made by
them to the Seller’s creditors supported by proof thereof.
8. Defendants and A M
Rose did not, after the conclusion of the Agreement of Sale, Annexure
“A”, agree to terms as to
the loan by A M Rose to
Defendants in respect of the unpaid balance of the purchase price of
the farm properties, farming equipment
and the standing crops and,
accordingly, the balance of the unpaid purchase price constitutes a
loan by A M Rose to the Defendants
(and) is repayable on demand
together with interest thereon calculated in accordance with the
prescribed rate of interest of 15.5%
per annum from date of
registration of transfer to date of payment.”
[8]
To these allegations, the trust pleaded as follows:
“
5.
Ad Paragraph 6C
The Defendants deny that
they needed to prove any alleged indebtedness of Rose, as Plaintiff
in the action bears the onus to prove
his case.
6.
Ad Paragraph 7
The Defendants deny the
contents of this paragraph and deny that Rose, for a period of more
than five years, ever requested Plaintiff
for proof of payment of
those amounts which were specifically set out in the annexure to the
written Agreement.
7.
Ad Paragraph 8
The Defendants deny the
contents of this paragraph
and in particular deny that there was
any unpaid balance in respect of the purchase price
or that Rose
ever demanded payment of an alleged outstanding balance.” (My
underlining).
[9]
The net effect of these pleadings appears to have been that the trust
denied the existence
of the tacit term contended for by the
respondents as to an accounting and debatement, or that it bore an
onus
to establish any “
indebtedness
”
on its part. However, in the same breath, it pleaded a denial that
there was any “
unpaid balance
” relating to the
purchase price, which, to my mind, can only have amounted in the
circumstances to a plea to the effect that
whatever indebtedness the
trust owed to Rose had been settled by the trust. This must be so
bearing in mind that the very purpose
of the action was to ultimately
ascertain whether there was any indebtedness owed by the trust and,
if so, the amount so owed.
[10]
As regards the conduct of the trial, the evidence led therein, and
the reasons for the conclusions
she reached I can do no better than
to quote the relevant portion of the judgment of Revelas J as
follows:
“
12.
Two witnesses gave evidence at the trial. Mr. De Jager, the first
plaintiff, gave evidence on behalf of the trustees
of Rose’s
insolvent estate. The plaintiffs also presented an affidavit in terms
of Uniform Court Rule 38(2), deposed to by
Ms Elmarie Coetzee, the
attorney who attended to the transfer of the property. Mr Van Onselen
gave evidence on behalf of the trust.
He was called after the
defendants’ unsuccessful application for absolution.
13. The
application for absolution was premised on the general argument that
the Defendants had no case to answer
as the plaintiffs had instituted
frivolous litigation against them, leading the court through a maze
of mostly unsubstantiated
debts for which the trust was not liable.
The main argument was that the plaintiffs failed to establish any
duty on the trust’s
part to render an account, as the existence
of such a duty was dependent on a fiduciary relationship between the
parties obliging
the person in a fiduciary position to provide an
account, or else there had to be a contractual or statutory
obligation to provide
an account of payments made. In this regard
counsel for the defendants stressed the plaintiff’s failure to
call Rose as a
witness, despite the fact that he was present in court
while De Jager, who was not a party to the agreement between Rose and
the
trust, had testified. Without Rose’s testimony, it was
argued, the plaintiffs failed to prove any tacit term with regard to
an obligation to account and debate any sums paid, as set out in the
particulars of claim. Accordingly, the plaintiffs were unable
to
prove any of the obligations referred to above and thus unable to
prove a duty to account.
14. The
defendants also referred to an affidavit deposed to by Rose, opposing
the application for the sequestration
of his estate, wherein he
stated that all his creditors, except for the Humansdorp Cooperative
and Rocklands Poultry, were paid
in full. As it turned out this was
not true. This
discrepancy
however, does
not render the plaintiffs’ claim void. In my view, the evidence
led in the sequestration proceedings does not
carry the evidentiary
weight in the present proceedings as the defendants would have it.
The defendants still bear the burden of
proving that these payments
were made by them.
15. De
Jager was cross-examined in depth. He was confronted with the fact
that he was the attorney of record for
the applicant (the Humansdorp
Cooperative) in the application for sequestration and then became a
trustee of the insolvent estate
of Rose. De Jager did not agree that
such a situation could cause a conflict of interests. Much was made
of the fact that the amount
claimed by the Humansdorp Cooperative and
listed in annexure B, namely the amount of R7 18 466.84, was
substantially more
than the debt which gave rise to the application
for sequestration R287 277.23 as being the amount owed by Rose
to the applicant
(the Cooperative). Clearly this is a drastic
increase over a period of 5 years, notwithstanding the interest that
may have accrued
to the original debt. Certain discrepancies in
De
Jager’s testimony in the proceedings before Alkema J,
and in the present proceedings were highlighted when De Jager was
cross-examined
by the defendants’ counsel. It was also
submitted that De Jager was a poor witness.
16. The
application for absolution from the instance was dismissed with
costs. Even though certain aspects of
de Jager’s evidence
invited criticism, I had to accept that he indeed made several
attempts to obtain information from the
defendants regarding payments
made by the trust, on behalf of Rose, in terms of the agreement of
sale of the property. One of the
responses to his requests for
accounting was the delivery of a box full of bank statements and
documents that were not helpful
at all. In another instance he was
furnished with the bank statements of Ozzies Besigheids Trust which
is a different trust from
the trust under consideration although the
first defendant is also a trustee of that trust. These statements
were equally unhelpful
and indicative thereof that the defendants
were labouring under the misapprehension that the plaintiffs bore the
onus of proving
that the creditors of Rose were paid. During argument
counsel for the defendants submitted that Ozzies Besigheids Trust
should
have been cited as a party and for their failure in that
regard they only had themselves to blame. This is a rather misplaced
assertion
if one considers the defendants’ own pleadings.
17. In
my view, it was not fatal to the plaintiffs’ case that Rose was
not called as a witness. The terms
of the contract were unambiguous
with regard to the rather unusual manner of payment of the purchase
price and the creditors that
had to be paid by the trust, were
identified. Rose could have taken matters no further. The same
applies to the question of whether
there was a tacit term in the
agreement requiring the trust, or the defendants, to account to Rose
which of his creditors were
paid by the trust and how much.
18. A
tacit term can be inferred from the express terms of the contract and
the surrounding circumstances. In
so inferring, “a court
implies not only the terms which the parties actually had in mind but
did not trouble to express,
but also terms which the parties, whether
or not they had them in mind, would have expressed if the question or
situation requiring
the term, had been brought to their attention”³
By undertaking to pay Rose’s many creditors identified and
listed
in annexure A to the agreement, it must have been foreseen
that the trust would act as Rose’s agent and as such had a
contractual
obligation and a fiduciary duty to account and debate the
payments made by it. “The practical test for determining what
the
parties would necessarily have agreed on the issue in dispute is
the celebrated bystander test. Since one may assume that the parties
to a commercial contract are intent on concluding a contract which
functions efficiently, a term will readily be imported into
a
contract if it is necessary to ensure its business efficacy;
conversely, it is unlikely that the parties would have been unanimous
on both the need for and the content of a term, not expressed, when
the term is not necessary to render the contract fully functional.”
19. It
is hardly likely that the parties intended that firstly, the trust
would have no obligation to pay the
creditors listed in the annexure
to the agreement despite its express provision therefore and
secondly, to leave it solely up to
Rose to find out whether his
creditors have been paid by the trust without any accounting
whatsoever to Rose. That would have been
entirely impractical.
Clearly there was an implied term that can be read into the agreement
that the defendants, the first defendant
in particular, had a
fiduciary and contractual duty to account to Rose or to the trustees
of his later insolvent estate, as to
when, how much was paid, and to
whom payment was made. The duty to account or to provide proof of
payment flows from the provisions
of clause 2.2 of the agreement
which had the effect of establishing an agency agreement between the
two contracting parties.
20. For
all the aforesaid reasons it was found that the defendants had a case
to answer and the application for
absolution was dismissed with
costs.
21. Mr
Van Onselen was then called to testify. His testimony did not take
the case for the defendants much further.
In view of the several
concessions made by him during cross-examination, he rather
strengthened the plaintiff’s case. In
addition, counsel for the
plaintiffs, Mr De La Harpe, questioned Mr van Onselen in depth about
those payments made to Rose’s
creditors by him and those
payments not made. The result of this exercise was that an accounting
was no longer necessary. With
reference to certain documents in the
trial bundles and certain payments made to Rose’s creditors by
the trust or by the
first defendant, it became possible to arrive at
a figure which represented the difference between the R3 million owed
in terms
of the agreement and the amounts paid to some of Rose’s
creditors. That amount came to R2 136 405.53.
22. Mr
Van Onselen testified about Rose’s great financial difficulties
and the fact that he wished to assist
him, mainly because his
daughter was married to Rose’s son and the couple were living
on one of the farms. He said that when
he bought the farm it was in a
sad state, the farm equipment such as there were, were rusted and the
only crop was a piece of land
covered with dead lucern. However, it
emerged during cross-examination that the property was sold some time
after Rose went insolvent,
for a purchase price of about four times
the price that Rose was to be paid for it by the trust.
23.
According to Van Onselen, he felt sorry for Rose and in that spirit,
and because their children were married,
he made several payments
towards Rose directly and indirectly, such as paying for his
municipal bills, having Rose and his son
as beneficiaries on his
medical aid and making other benevolent payments. As I understood Mr
Van Onselen, he felt that his charitable
acts and payments of which
Rose and his family were the beneficiaries, rendered the trust exempt
from payment of any amounts to
Rose in terms of the contract.
However, that was not the defendant’s case as pleaded. Counsel
for the defendants submitted
that I ought to view the matter in the
aforesaid context and find that the trust was not indebted to Rose’s
insolvent estate
also because there was no reliable evidence before
me to conclude what was allegedly owed to Rose’s estate. The
flaw in this
argument is that it was the defendants who thwarted all
attempts by the plaintiffs to establish which creditors were paid or
not.
Requests for this information was made in correspondence, in a
request for further particulars for trial, and during a pre-trial
conference where the defendants’ legal representatives
undertook to revert on this aspect but never did. I am also mindful
of the fact that Rose did not do much himself to find out what
payments were made, but it is the defendants who bear the
onus
of proving that they have discharged the trust’s debts. As
Davis AJA put the matter in
Pillay v Krishna:
“
[W]here
there are several distinct issues, for instance a claim and a special
defence, then there are several distinct burdens of
proof, which have
nothing to do with each other, save of course that the second will
not arise until the first had been discharged.”
24. In
Principles of Evidence⁶ at 573 the authors interpreted the
above
dictum
in
Pillay v Krishna
thus:
“
[I]n
a claim for recovery of a loan it is for the plaintiff to prove that
the loan was made, but a defendant who alleges that the
loan has been
repaid bears the burden of proving that fact in order for the defence
to succeed.
If at the end of the trial
it is established that the loan was made, but it is unclear whether
it was repaid the plaintiff will
succeed”
(emphasis added).
25.
Whereas is most regrettable that both Rose and Van Onselen were
neglectful with regard to keeping proper records
of all payments made
in terms of the contract, the fact that the larger portion of the
purchase price of the property or loan,
as it was structured, remains
unpaid is a fact, even if the exact amount might not be a certainty
in the defendants’ view.
The defendants therefore did not
discharge the onus of proving that they have no further obligations
under the agreement.”
(Footnotes omitted)
[11]
From the foregoing, and from the arguments made on behalf of the
appellants, it appears that
the issues on appeal were: whether the
trial court was correct in finding that the tacit term existed;
whether the defendant bore
an
onus
to
prove that there was no indebtedness under the agreement, and whether
the failure to call Rose as a witness tilted the balance
in favour of
the appellants. In addition, and in argument before us, Mr. Joubert,
who appeared on behalf of the appellants, advanced
a new and novel
argument to the effect that because there was some reference in the
pre-trial conference to a loan having come
into existence, and
because Van Onselen testified about an agreement between himself and
Rose to the effect that his continued
support of Rose would be
considered as a discharge of the debt, this should have been taken
into account by the trial court despite
it not having been pleaded.
The
tacit term as to accounting and debatement
[12]
An action for an account and a debatement thereof is well known in
our law
[4]
. However, it is not
available in every instance, and it is necessary for a plaintiff
suing for such relief to allege and prove
the existence of certain
prescribed relationships between the parties. The circumstances in
which it may be claimed have been described
as follows:
“
The
right at common law to claim a statement of account is, of course,
recognised in our law, provided the allegations in support
thereof
make it clear that the said claim is founded upon a fiduciary
relationship between the parties or upon some statute or
contract
which has imposed upon the party sued the duty to give an account.
Allegations which do no more than to indicate a debtor
and creditor
relationship
would not justify a claim for a statement of account.
Erasmus
v Slomowitz
(1),
1938 T.P.D. 236
at p. 239;
Maitland
Cattle Dealers (Pty.) Ltd. v Lyons
1943, W.L.D. 1
at p. 19. See also
Doyle
and Another v Fleet Motors P.E. (Pty.) Ltd.,
1971
(3) SA 760 (A.D)…”
[5]
[13]
In her judgment, as quoted above, Revelas J set out her reasons for
finding that a tacit term
existed to the effect that, in the event of
a dispute, the seller (Rose) would be entitled to sue for an
accounting and debatement.
This she did at paragraphs 18 to 19 of her
judgment. She found that the agreement itself would not have been
commercially efficient
had the term not been imported into the
contract and that it would have been entirely impractical to have
left it solely up to
Rose to find out whether his creditors had been
paid by the trust without any accounting whatsoever to him. She
further found that
clause 2.2 of the agreement “
had the
effect of establishing an agency agreement between the two
contracting parties
.”
[14]
Whether indeed a relationship of principal and agent was created
vis-à-vis Rose and the
Trust by virtue of clause 2.2 of the
agreement is debatable, as is the question as to whether a fiduciary
relationship was created
between them. In this regard, it is
well-known that agency is not susceptible of a precise definition as
exemplified in the following
passage:
“
III The
defining characteristics of agency
As
indicated above, agency is a complex and protean phenomenon, and the
words 'agency' and 'agent' are used in a variety of ways
and for
different purposes. This motivated Nestadt J in
Truter,
Crous, Wiggill & Vos v Udwin
to give judicial approval to De Wet's view that 'the expression
"agency" is used in such a wide variety of meanings that
it
cannot be regarded as a term of art'. As a consequence, it is
unsuitable to attempt some sort of thin definition of agency.
It is
instead preferable, as has become the norm internationally, to
identify various
defining
characteristics
of agency, with a view to extrapolating from these, or identifying
certain extensions or qualifications, all with the purpose of
constructing as complete a conceptual picture as is possible of
agency law.”
[6]
(footnotes
omitted)
[15]
However, in my view whether such a principal and agent relationship
indeed came into existence
by virtue of the agreement is neither here
nor there. As found by Revelas J, it was a tacit term of the
agreement that the seller
(Rose) was entitled to sue for an
accounting and debatement thereof in the event of there being a
dispute as to the amount due.
It was not necessary, once this
conclusion was reached, to take the matter any further. The argument
as advanced by the appellants
to the effect that the context within
which the agreement was concluded (namely Rose’s financial
difficulties having been
ameliorated by Van Onselen’s gesture
of purchasing the farms) was of importance, was taken into account by
the trial court
in concluding that the tacit term existed. In any
event, the familial relationship which apparently existed at the time
of the
conclusion of the agreement, does not negate the effect of the
“
bystander
” or “
officious bystander
”
test in the circumstances. The question which had to be asked at the
time was as to whether,
in the event of a dispute,
the
purchaser (Rose) would have been entitled to claim an accounting and
debatement. In these circumstances the bystander would
undoubtedly,
in my view, have answered such question in the affirmative. As
against these background circumstances, in my view,
the trial court
correctly concluded that this was indeed a tacit term of the
agreement.
[16]
As matters unfolded in any event, it seems to me that the entire
question as to whether such
a tacit term existed became somewhat of a
red herring. I say this because the court
a quo
found, rightly
in my view, that orders for an accounting and debatement were
unnecessary because of the manner that the trial unfolded.
Indeed,
the purpose of such accounting and debatement was to determine the
amount, if any, which was due and owing. When it became
apparent that
the evidence established this, the need for both the accounting and
debatement thereof fell away.
The
onus
[17]
The trial court found on the pleadings that “
it
is the defendants who bear the onus of proving that they have
discharged the trust’s debts
.”
Revelas J referred to the well-known case of
Pillay
v Krishna
and
Another
[7]
and to
Principles
of
Evidence
[8]
in support of her conclusion
[9]
.
[18]
As I understand the submissions made on behalf of the appellants in
this regard, the
onus
remained on the
respondents to establish who in fact the creditors were before there
could have been a shifting of the
onus
to
the appellants. I beg to differ. As dealt with in paragraph 9 above,
although not a picture of clarity, the plea itself made
it reasonably
clear that the appellants’ case was that whatever debt may have
existed had been discharged.
[19]
This was taken further in the
pre-trial
conference of 20 July 2020 when in answer to a question as to
whether the appellants admitted that they were liable to pay the
difference
between the purchase price in the sum of R3 million, and
the aggregate of the sums paid to Rose’s creditors, they
responded:
“
Defendants
admit that the balance of the purchase price, after settlement of all
outstanding debts as listed in annexure A to the
Deed of Sale, would
be converted to a loan granted by the insolvent to the defendants.
Defendants have in the meantime settled
the full amount of the loan.
Evidence in this regard will be submitted at the trial.”
[20]
In these circumstances, I cannot fault the conclusion reached by
Revelas J to the effect that the plea
as amplified by the further
admissions had the result that the appellants bore the
onus
of establishing that the debt had been discharged.
The
failure to call Rose as a witness
[21]
As is reflected in the judgment of the trial court, the argument was
made before it that the
respondents’ failure to call Rose (who
had been available) as a witness was fatal to the respondents’
case as it was
only Rose who could testify as to the context within
which the agreement was concluded. This argument was again pursued
before
us. Revelas J found that the terms of the contract were
unambiguous regarding the unusual manner of payment of the purchase
price
and that Rose could have taken the matter no further. The court
considered the context within which the agreement was concluded,
namely the dire financial straits that Rose found himself in and the
familial relationship between Van Onselen and
Rose.
[10]
No
further “
context
”
other than this was raised by Van Onselen when he testified, and it
seems to me that the trial court was thus entirely correct
in its
finding that Rose could have taken the matter no further.
[22]
In this regard there is no hard and fast rule to the effect that the
failure to call a witness
who was available to testify should result
in an adverse inference against the party failing to do so. Every
case must depend on
its own facts and circumstances. Generally
speaking, the failure to call an eyewitness to an event (such as a
motor vehicle accident)
in issue may result in such an adverse
inference. However, this is not always necessarily so. The situation
was well described
by Didcott J in
Magagula
v Senator Insurance Company (Ltd)
[11]
albeit
dealing
with a motor vehicle accident case as follows:
“
In
the present litigation, I believe, one may safely say of the two
conceivable explanations for the collision that they are 'more
or
less equally open on the evidence’, to borrow SCHREINER JA's
terminology, and that neither is likelier than the other,
by a margin
worth speaking of, to translate the language of JANSEN JA. It is
therefore the sort of case which qualifies for
the inference in
question. Whether one should be drawn in all its circumstances is,
however, another matter altogether. No hard
and fast rule governs
that enquiry. Having authorised the inference in such a situation,
JANSEN JA added immediately (at 40E):
“
Of
dit egter in ‘n bepaalde geval behoort gemaak te word, en of
die gewig daarvan inderdaad deurslaggewend is, sal egter
van die
bepaalde omstandighede afhang.”
To similar effect was the
following passage from the judgment of CORBETT AJA, also delivered in
Van der Schyff’s
case (at 49F - G):
“
Dit
is, mi, nòg wenslik, trouens nòg moontlik, om die
omstandighede waaronder die
Galante-
beginsel toepaslik is met noukeurigheid te probeer omskrywe. Die
toepassing daarvan moet egter afhang van die aard van die
geskille
wat deur die besondere geval opgewerp word en die bewyskrag van die
getuienis wat deur die eiser aangevoer word.”
Drawing the line between
legitimate inference and mere surmise, CORBETT AJA went on to say (at
49G - H):
“
Oor
die algemeen moet daar - soos in die
Galante-
saak – ‘n redelike mate van sekerheid wees in
verband met die basiese feite van die botsing, welke sekerheid
voldoende is om die Hof in staat te stel om verskillende
verduidelikings aangaande die oorsaak van die botsing te bepaal of af
te lei. In sodanige gevalle kan die versuim van die verweerder om ‘n
teenbewys aan te bied die deurslag gee, in die sin dat
die Hof
geregtig is om, ingevolge die
Galante-
beginsel, daardie verduideliking te verkies wat ten gunste van die
eiser is. Maar die beginsel kan nie behoorlik toegepas word
waar die
saak van die eiser so vaag en ontoereikend tov die basiese feite is
dat die enigste feite-bepalings of afleidings wat
gemaak kan word as
blote bespiegeling bestempel moet word en, nadat alles inaggeneem is,
die Hof dus nie in staat is om te bevind
dat nalatigheid op ‘n
oorwig van waarskynlikhede bewys is nie.”
CORBETT AJA’s
voice, it is true, was a dissenting one, But I do not construe the
judgments of RUMPFF JA and JANSEN JA, who
spoke for the majority,
as having clashed with the part of his which I have quoted. CORBETT
AJA disagreed with them not so
much in his approach to the enquiry as
in his evaluation of the facts then before the Court.
I have in this case, as I
see things, just that dearth of information which CORBETT AJA
considered too marked for a decisive inference
to be drawn from
the driver’s silence. There is no real measure of certainty
about the basic facts of the accident which
killed the plaintiff’s
wife. The evidence concerning them is so sparse that, even when
account is taken of the defendant’s
failure to call the driver
as a witness, the all important point of impact remains wholly
conjectural.”
Should
the trial court have taken into account an agreement testified to by
Van Onselen but not pleaded?
[23]
As dealt with in paragraphs 22 and 23 of the trial court’s
judgment, it was argued that
certain evidence of Van Onselen
regarding a verbal agreement between him and Rose to the effect that
the remaining loan would be
offset by Van Onselen’s benevolence
in financially supporting Rose, should have been taken into account
by the court. The
essence of the alleged agreement as I understood
the evidence was that it was concluded in satisfaction of the
requirements of
clause 2.2 in that these were the “
terms and
conditions as will be agreed upon by them
”.
[24]
The difficulty with this argument as pertinently pointed out by
Revelas J is that it was never
pleaded. Accordingly, it was not an
issue before the parties and the evidence of Van Onselen in this
regard was entirely irrelevant
to the proceedings.
[25]
Not so, argued the appellants. It was argued that indeed this aspect
was raised at a pre-trial
conference and that the respondents were
thus not ambushed as they were made aware of these facts. It was
submitted that the question
of a loan having come into existence was
raised obliquely as has been quoted in paragraph 19 above. It was
further argued that
because the appellants answered certain questions
put by the respondents in the same pre-trial conference as to whether
they admitted
that certain payments were made by the appellants to
Rose for his month-to-month maintenance, or on his behalf to his
creditors,
and the respondents replied that these questions were
irrelevant to the issues, the issue as to whether the loan had indeed
been
settled in this manner had become a “
non-issue
”.
It was submitted that the court
a quo
therefore erred in not
finding that van Onselen’s evidence on this score was not only
acceptable but provided a complete
answer to the claim for payment of
the balance of the purchase price.
[26]
There are several problems with this argument. It is trite law that
particularly where a party
bears the
onus
of proof, that party must plead his case clearly and concisely.
Where, as in this instance, a debtor maintains that it has settled
an
outstanding purchase price, or loan, either by direct payment or by
novation of the underlying agreement which formed the substratum
of
the debt, it must plead the
facta
probanda
thereof.
[12]
By
parity of reasoning, where in a case of unlawful arrest the defendant
admits the arrest and thereby attracts an
onus
to
justify it, the defendant is obliged to plead the lawful basis upon
which it claims such justification.
[27]
In the present matter, there is not a mention of such agreement in
the appellants’ plea.
The fact that it may obliquely have been
mentioned in a preceding pre-trial conference simply cannot be
elevated to a pleading
which determines the issues between the
parties. Because it was not raised in the plea, the respondents quite
correctly took it
no further. Indeed, should the trial court have
accepted the appellants’ contention, and accepted Van Onselen’s
evidence
in this regard, the respondents would have been ambushed to
the extent that they would not have been able to prepare a response
thereto and/or to investigate these contentions fully and properly
by,
inter alia
, requesting further particulars for trial. They
may also have wished to replicate for one reason or another to raise
further issues
relating to the alleged agreement. They may even, upon
proper investigation, have conceded the point. None of this could
they do
as it was not pleaded.
[28]
The argument that the alleged agreement to maintain Rose became a
non-issue because it was unchallenged
in some way likewise cannot
hold any weight. Had the respondents indeed accepted this and created
a “
non-issue
”, the result would have been that the
respondents would have had to concede the case and pay costs. A
concession on their
part that a loan agreement had been concluded,
and that it had been satisfied, was clearly not what was intended by
the responses
at the pre-trial conference to the effect that the
questions referred to were irrelevant to the issues between the
parties.
[29]
Furthermore, the evidence of Van Onselen in this regard was extremely
vague. I gained the distinct
impression that the facts relating to
the agreement and the statement that the agreement was intended to be
in satisfaction of
the requirements of clause 2.2 of the agreement,
had to be dragged out of him.
[30]
In my view therefore the trial court was correct in rejecting this
argument as well.
[31]
Certain further arguments were raised regarding whether the
respondents had proved the precise
amount due taking into account the
documentation, the interrogation which took place pursuant to the
insolvency and the evidence
of Van Onselen. In my view, bearing in
mind that the appellants bore the
onus
in this regard, the trial court was correct in accepting the evidence
of the parties in so far as it established indeed that certain
of the
creditors were paid, and the total amount so paid by the trust. The
respondents, under cross
examination of
Van Onselen, accepted several other contentions made as to payments
to Rose’s creditors and added those amounts
to the settled
debts as ascertained by them. In my view, the trial court cannot be
faulted in this regard either.
[32]
For these reasons I am of the view that the following order should
issue:
The appeal is
dismissed with costs such costs to include the costs which were
reserved in the application for leave to appeal.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
RUSI
J. :
I agree
JUDGE
OF THE HIGH COURT
MAJALI
AJ. :
I agree
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR APPELLANTS : Mr Joubert
SC
: with Mr Du Toit
INSTRUCTED
BY
: AC Greyling & Associates
COUNSEL
FOR RESPONDENTS : Mr De La Harpe SC
INSTRUCTED
BY
: Grevenstein Inc.
HEARD
ON
: 23 MAY 2022
DELIVERED
ON
: 2 August 2022
[1]
Together
with farm equipment and standing crop.
[2]
As
represented by the appellants.
[3]
Annexure
"B" to the particulars of claim was an alleged
reconstruction of annexure "A" to the initial agreement
which, it was common cause, had been lost. It became common cause
during the trial that indeed annexure "B" did not
reflect
the true position as to the creditors of Rose at the time of the
conclusion of the sale.
[4]
Doyle
& Another
v
Fleet Motors P.E. (Pty.) Ltd.
1971 (3) SA 760
(A) at p 762.
[5]
Victor
Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd
1975 (1) SA 961
(W) at p 1963.
[6]
Glover:
Agency in South Africa: Mapping its defining characteristics. Acta
Juridica, Volume 2021, No. 1
[7]
1946
(AD
)
946 at pp 952 -3.
[8]
Schwikkard
and Van der Merwe
Principles
of Evidence
3
rd
ed (2009) at p 573.
[9]
See
paragraphs 23-4 of the judgment of the trial court as quoted above.
[10]
Rose
was married to Van Onselen's daughter.
[11]
1980
(1) SA 717
(N
)
at pp721-2.
[12]
Rule
18 (4) and (6) of the Uniform Rules of Court reads as follows:
“
(4)
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim,
defence
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
…
(6) A party who in his
pleading relies upon a contract shall state whether the contract
is
[a]
written or oral and when, where and by whom it was
concluded, and if the contract is written a true copy thereof or of
the part
relied on in the pleading shall be annexed to the
pleading.”
See
further Erasmus: Superior Court Practice-commentary on the above
sub-rules
and rule 22.