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[2021] ZAGPPHC 48
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Absa Bank Limited v Centurion Bus Manufacturers (Pty) Ltd (A46/2018) [2021] ZAGPPHC 48 (5 February 2021)
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
05 FEBRUARY 2021.
Case
Number: A46/2018
In
the matter between:
ABSA
BANK LIMITED
Appellant
And
CENTURION
BUS MANUFACTURERS (PTY) LTD
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
This appeal emanates from an order for absolution from the instance
granted by Mbongwe AJ on 22 June 2016. For ease of reference, the
parties will be referred to herein as cited in the court
a quo
.
Facts common cause
[2]
The plaintiff, ABSA Ltd (“ABSA”), is a public company
and
credit provider that trades
inter alia
as bankers and
financiers.
[3]
The defendant, Centurion Bus Manufacturers (Pty) Ltd, (“CBM”),
obtained credit from ABSA in terms of various credit agreements
pertaining to certain equipment (“assets”) purchased
by
it.
[4]
CBM did not honour its payment obligations in terms of the various
agreements, which prompted ABSA to institute legal proceedings for
the recovery of the assets and certain ancillary relief.
[5]
The account number in respect of each transaction and the case number
under which the legal proceedings were instituted in respect of the
various account numbers are crucial to the dispute between
the
parties. In the result it is necessary to deal with same in somewhat
more detail.
[6]
Under case number 58965/2010, ABSA claimed in respect of the
following
account numbers:
6.1 73144146;
6.2 74401142;
6.3 78567029;
6.4 73140361;
6.5 73122711;
6.6 72403911;
6.7 70486232; and
6.8 72403822.
[7]
Under case numbers 35992/2010 and 37218/2010 ABSA claimed in terms
of
accounts numbers 75473805 and 75477894.
[8]
I pause to mention, that each account number refers to a specified
asset. In other words, ABSA’s claim under case number
58965/20105 was in respect of eight individual assets, which were
described in detail in the notice of motion.
[9]
In an endeavour to settle the various claims, CBM entered into
settlement
negotiations with ABSA. The negotiations were attended to
by the respective legal representatives for ABSA and CBM.
[10]
The negotiations were initiated by CBM in a letter from their
attorneys dated 12
April 2012. The heading of the letter refers to an
additional case, 38781/2010. It is not clear from the record in
respect of which
account number this application was issued.
[11]
Be that as it may, the letter contained the following request: “
We
request that you provide us with settlement amounts on all accounts
pertaining to the matters that have been set down to be heard
on 16
April 2012.”
[12]
On 13 April 2012 the attorneys on behalf of ABSA, however, only
provided settlement
figures in respect of the following account
numbers:
12.1
74580535 – R 284 541, 01;
12.2
75477894 – R 81 961.04;
12.3
75473805 – R 178 048.26;
12.4
73144146 – R 116 016.13; and
12.5
73122711 – R 64 764.16.
[13]
It is evident from the account numbers
supra
, that only
settlement figures in respect of two of the accounts under case
number 58965/2010 were provided, namely, the accounts
mentioned in
subparagraphs 12.4 and 12.5.
[14]
Negotiations proceeded and on 16 April 2012, CBM’S attorneys
addressed a letter to ABSA’s
attorneys, which
inter alia
stated:
“
We confirm
we have noted your client’s decline of our client’s
proposal. We confirm that as discussed we request that
you take the
following counteroffer to your client.
We confirm that
our instructions are that our client will settle the amount of R
200 000, 00 that can be set off against account
75477894 and
account number 73144146 which amount will be paid before close of
business on Tuesday, 17 April 2012.
We furthermore,
confirm that our client will thereafter pay R 100 000,00 per
month, the first instalment due on 31 May 2012
on the balance of the
amounts outstanding by settling the smallest balances first.”
[15]
The account numbers referred to are those that appear in
subparagraphs 12.2 and 12.4
supra
.
[16]
In a letter dated 16 April 2012 ABSA accepted the proposal of R
200 000, 00 in respect
of the abovementioned account numbers,
but declined the remainder of the counteroffer.
[17]
On 17 April 2012 CBM made proposals for the payment of the amounts
owing on the remainder
of the account numbers, i.e. the account
numbers as reflected in subparagraphs 12.1, 12.3 and 12.5.
[18]
In terms of a letter dated 17 April 2012, ABSA responded to the
further proposal as follows:
“
We confirm
our clients will accept your client’s proposals as referred to
in your letter dated 17 April 2012.
Kindly find
attached hereto settlement agreements for the above accounts which
will be made an order of court.”
[19]
Be that as it may, on the strength of the agreement reached between
the parties, Ms Prinsloo,
a legal secretary employed by Hammond Pole
Attorneys and who reported to Ms Slabbert, ABSA’s attorney at
the time, drafted
three settlement agreements, one of which pertains
to the dispute
in
casu
.
[20]
In the settlement agreement it is recorded that CBM will pay two
amounts, namely R 116 016,
13 and R 64 764, 16. These
two amounts accord with the amounts outstanding in subparagraphs 12.4
and 12.5
supra
and consequently represent payment of two out
of the eight assets claimed under case number 58965/2010.
[21]
Although only two accounts were settled in terms of the settlement
agreement between the
parties, the following is recorded in paragraph
6.1:
“
This
agreement represents the settlement entered into between the parties
in respect of case number 58965/2010.”
Issue in dispute
[22]
ABSA, upon realising its mistake, requested CBM to pay the remainder
of the outstanding
balances under case number 58965/2012. CBM refused
and contended that, as recorded in paragraph 6.1 of the written
settlement agreement,
the matter was settled in its totality.
[23]
And thus a dispute is born.
ABSA’s claim
[24]
ABSA instituted a claim for rectification of paragraph 6.1 of the
settlement agreement
to reflect the correct common intention of the
parties. ABSA prays for the rectification of paragraph 6.1 to read as
follows:
“
6.1
This agreement represents the settlement entered into between the
parties in respect
of account numbers 73122711 and 73144146 only.”
[25]
The elements underlying a claim for rectification, are:
25.1 an
agreement between the parties that was reduced to writing;
25.2 that
the written agreement did not reflect the common intention of the
parties correctly;
25.3 an
intention by both parties to reduce the agreement to writing;
25.4 a
mistake in the drafting of the document, which must be as a result
of:
25.4.1 a
bona fide
mutual error; or
25.4.2 an intentional act
of the other party; and
25.5 the
wording of the agreement as rectified,
[See:
Amler’s Precedents
of Pleadings
, Harms, 7
th
edition, 336]
Evidence
[26]
Two witnesses were called on behalf of ABSA, Ms Karien Slabbert, the
attorney representing
ABSA at the time and Ms Menesh van Eeden, a
legal recovery specialist in the employment of ABSA at the time.
[27]
Ms Slabbert confirmed in her evidence that the parties, at all
relevant times had the common
intention to only settle the arrear
amounts in respect of the account numbers reflected in the
correspondence between the parties.
[28]
Ms Slabbert explained that she had a “
hectic”
time
during the drafting of the various settlement agreements which led to
the incorrect wording in paragraph 6.1 of the settlement
agreement.
She acknowledged that she had made a mistake.
[29]
During cross-examination, Ms Slabbert was confronted with the version
of CBM, which version
clearly indicated that it held a different
view. CBM was adamant that, having regard to the correspondence
preceding the agreement
between the parties, the intention of CBM was
to settle the matter in totality.
[30]
The evidence of Ms van Eeden, save to confirm that ABSA, will not
abandon amounts owing
to it, did not really take the dispute any
further.
[31]
Upon closure of ABSA’s case, CBM brought an application for
absolution from the instance,
which application, as stated
supra
was successful.
Judgment
[32]
Having analysed the evidence and submissions on behalf of the
parties, the court
a quo
made the following finding:
“
[16]
At the close of the plaintiff’s case the defence applied for
absolution from the instance. Counsel
for the defendant argued that
the plaintiff had not discharged the onus of proving the alleged
common error which was core to the
plaintiff’s pleaded case.
She further submitted that the witness’ plea of an oversight on
the part of the plaintiff’s
attorney resulting in the
conclusion of the settlement agreement pointed to a unilateral error
and was, consequently, at odds with
the plaintiff’s allegation
of the existence of a common error between the parties. …
[17]
In opposition to the application for the defendant argued that the
plaintiff had made out a prima
facie case and submitted that it was
incumbent on the defendant to testify in rebuttal. The applicable
principle in this situation
was aptly laid down in OOSTHUIZEN v
STANDARD GENERAL VERSEKERINGS MAATSKAPPY BPK 1981 (A) at 1035H-36A
(sic)
as follows: ‘If
at the end of the plaintiff’s case there is not sufficient
evidence upon which a reasonable man could
find for him or her, the
defendant is entitled to absolution.’ I find that the
proposition by the plaintiff’s counsel
is clearly not supported
by the evidence tendered and ought to be rejected.
In
line with the principle in the Oosthuizen case, the defendant’s
application must succeed.”
Discussion
[33]
The test for absolution from the instance at the end of the
plaintiff’s case was
first formulated in
Gascoyne v Paul and
Hunter
1917 TPD 170
at 173. In essence the test is not whether
the evidence established what would finally be required to establish,
but whether there
is evidence upon which a court, applying its mind
reasonably to such evidence, could or might (not should, or ought to)
find for
the plaintiff.
[34]
The test has been confirmed in a long line of authorities and in
Claude Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A), the
end result of applying the test was explained as follows at
409G–H:
“
This
implies that a plaintiff has to make out a prima facie case-
in
the sense that there is evidence relating to all the elements of the
claim
– to survive absolution
because without such evidence no Court could find for the plaintiff.”
(own emphasis)
[35]
ABSA contends that, although the
dicta
in the
Oosthuizen
matter relied upon by the court
a quo
in the judgment is
in line with the principle set out in
Claude Neon Lights, supra
the court
a quo
applied the test incorrectly. Having regard to
the test in
Claude Neon Lights, supra
the point of departure
is to have regard to the elements of rectification and to determine
whether evidence was led in respect thereof.
[36]
The elements have been set out
supra.
The next step is to have
regard to the evidence presented by ABSA in respect of each element.
It is important to note that the evidence
presented by the plaintiff
must only establish a
prima facie
case on which a court “
could
or might”
find for the plaintiff.
An agreement between the
parties which was reduced to writing
.
[37]
It is common cause between the parties that the settlement agreement
was reduced to writing.
That the written document did
not reflect the common intention of the parties
.
[38]
In this regard Harms in
Amler’s Precedent of Pleadings,
supra,
remarks as follows:
“
The common
continuing intention of the parties, as it existed when the agreement
was reduced to writing, must be established. It
may be deducted from
an antecedent agreement, for instance.”
[39]
The correspondence between the parties in respect of the settlement
figures for specific
account numbers evidence at least
prima facie
that it was the common intention of the parties to settle only
the amounts in respect of the mentioned case numbers.
An intention by both parties
to reduce the agreement to writing
.
[40]
This element is common cause between the parties.
A mistake in drafting the
document, which must be a result of either a
bona fide
mutual error or an intentional act of the other party
.
[41]
ABSA relies on a
bona fide
mutual error and the evidence of Ms
Slabbert considered in conjunction with the correspondence between
the parties establishes at
least
prima facie
that the mistake
is due to a common error between the parties.
[42]
The mere denial by CBM at this stage that the mistake was not due to
a common error between
the parties still needs to be tested. It is a
well-known principle in litigation that the skilful art of
cross-examination should
never be underestimated. It is one thing to
merely deny a fact, but a total different scenario presents itself if
such denial is
scrutinised during
viva voce
evidence.
[43]
Erasmus Superior Court Practice
, Van Loggerenberg, Vol 2, 2
nd
edition, D1-531, explains this principle with reference to
Supreme
Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd
1971
(4) SA 90
(RA) as follows:
“
In case of
doubt as to what a reasonable court ‘might’ do, the court
should lean on the side of allowing the case to
proceed, for the
plaintiff should not lightly be deprived of his remedy without the
evidence of the defendant being heard. A defendant
who might be
afraid to go into the witness-box should not be permitted to shelter
behind the procedure of absolution from the instance.”
The wording of the agreement
as rectified
.
[44]
ABSA has alleged what the wording of paragraph 6.1 of the Settlement
Agreement should,
once rectified, read, to wit
“
This agreement
represents the settlement entered into between the parties in respect
of account numbers 73122711 and 73144146 only.”
[45]
It is apposite to remember that, as stated in
Atlantic Continental
Assurance Co of SA v Vermaak
1973 (2) SA 525
E, for purposes of
absolution the evidence of the plaintiff’s witnesses should
ordinarily be assumed to be true.
[46]
In the result I am of the view that the appeal should be upheld.
ORDER
[47]
In the premises, I propose the following order:
The appeal is upheld with costs.
The order of the court
a quo
is set aside and substituted with the following order:
“
The
application for absolution from the instance is dismissed with
costs.”
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
I
agree.
L.M.
MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
I agree
E.M. KUBUSHI
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
21
st
of October 2020.
(TEAMS
HEARING)
DATE
DELIVERED PER COVID19 DIRECTIVES:
5 February 2021
APPEARANCES
Counsel for the Appellant:
Advocate
F.H. Terblanche SC
Instructed
by:
Hammond Pole Majola Inc.
Counsel
for the Respondent
Advocate C.A. Kriel
Instructed
by:
Machobane Inc