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[2021] ZAGPPHC 93
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Turbo Fasteners (Pty) Ltd v ITEC Finance (Pty) Ltd (95635/15) [2021] ZAGPPHC 93 (15 February 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
15
FEBRUARY 2021
CASE
NO: 95635/15
In
the matter between:
TURBO
FASTENERS (PTY) LTD
PLAINTIFF
and
ITEC
FINANCE (PTY) LTD
DEFENDANT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgement is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 15 February 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
[1]
In the present action, the plaintiff instituted action proceedings
against the defendant, for unjustified enrichment (Claim
A). In the
alternative, the plaintiff pleaded Claims B and C as formulated in
its particulars of claim.
[2]
In respect of Claim B, the plaintiff alleges that it was the party’s
intention to enter into an instalment sale agreement
as opposed to a
rental agreement. Herein, the plaintiff alleges, that in terms of the
agreement so concluded that the plaintiff
would become the owner of
the equipment upon payment of the purchase price by means of monthly
instalments of 36 months.
[3]
In respect of Claim C, the plaintiff alleges, that the parties prior
to the signing of the rental agreement, annexed as annexure
“A”,
the parties had agreed and confirmed that the plaintiff would become
the owner of the rented equipment after 36
months of compliance
therewith by the plaintiff.
[4]
On or about 9 June 2005, the parties concluded the underlying written
lease agreement, annexed as annexure A.
[5]
In terms of the lease agreement the plaintiff rented a Konica Minolta
7416 (“
the
equipment
”)
photocopy machine for a period of thirty-six months from the
defendant, after which period, the plaintiff would become
the owner
of the leased property.
[1]
[6]
In its particulars of claim, the plaintiff further alleges, that it
complied with all its obligations in terms of the agreement
so
concluded and made payment of the rental on a monthly basis. On or
about 9 June 2008, it thereafter became the owner of the
equipment.
[2]
[7]
Despite termination of the agreement, the defendant persisted to
debit the plaintiff’s bank account, in the amounts and
dates as
stated in the ledger annexed to the particulars of claim as Annexure
‘C”. The total amount so debited is R
689 467.69
(Six Hundred and Eighty-Nine Thousand Four Hundred and Sixty-Seven
Rand and Sixty-Nine Cents), which the plaintiff
alleges the defendant
became enriched by.
[8]
In addition to support its claim, the plaintiff places reliance on
annexure “B” annexed to its particulars of claim,
which
is a letter which serves as confirmation that ownership of the
equipment will be granted to the plaintiff after the initial
36
months’ rental period.
COMMON
CAUSE FACTS
[9]
It was common cause between the parties, that the agreement concluded
between the parties, consisted of annexures “A”
and “B”
annexed to the particulars of claim.
[10]
Further, that the agreement was concluded between them on 9 June
2005, with both parties being duly represented.
[11]
It is further common cause that the defendant continued to debit the
plaintiff’s bank account beyond the initial 36 months’
period in the amount of R 689 476.69, when this amount was
neither due and or owing by the plaintiff to the defendant.
[12]
In order to succeed with its claim for enrichment, the plaintiff
carries the burden of proof
[3]
to meet the
following essential allegations.
12.1The defendant
must be enriched;
12.2 the plaintiff
must be impoverished;
12.3 the defendant’s
enrichment must be at the expense of the
plaintiff;
and
12.4 the enrichment
must be unjustified or sine causa.
[4]
EVIDENCE
[13]
On behalf of the plaintiff a number of witnesses testified. The first
being the Mr Anton Potgieter. In short his evidence can
be summarised
as follows:
13.1 He gave
evidence that he is the Managing Director and Chief Executive Officer
of the plaintiff since its inception in 1999.
13.2 Around June
2005, his company was in need of a photocopy machine and they entered
into an agreement consisting of annexures
“A” and “B”
to the particulars of claim, with one Karin Marques acting on behalf
of the defendant.
13.3 In essence it
was agreed that the photocopy machine would be rented for a period of
three years, where after, it will belong
to the plaintiff.
13.4 Albeit that
annexure “B” was not yet drawn up at the time when
discussions took place, it was furnished to them
approximately a week
thereafter and he was satisfied with its contents.
13.5 He testified,
that the plaintiff company would not have concluded the agreement
with the defendant, if they would not take
ownership of the photocopy
machine after three years.
13.6 Pursuant to
concluding the agreement, the plaintiff complied with all its
obligations in terms of the agreement, and paid all
payments
timeously as stipulated in terms of the agreement.
13.7. Only around
October 2015, a number of years after the agreement had terminated
did they realise that the defendant was still
debiting the
plaintiff’s account and that an overpayment had taken place and
it was at this juncture that correspondence
in this regard was
addressed to the defendant.
[5]
13.8 A response to
this letter was received from the defendant, dated 9 October 2015,
[6]
wherein they
distance itself from the contents of annexure “B” which
gave ownership of the photocopy machine to the
plaintiff. In the same
letter it was also indicated that Ms Marques had no authority to pass
ownership of the photocopy machine
to the plaintiff as this was
contrary to clause 2.1.7 of the rental agreement concluded between
the parties.
[14]
During cross-examination, Mr Potgieter conceded that as per the
Windeed report, that the defendant [Itec Finance (Pty) Ltd]
and Itec
East are two separate and distinct entities and that Ms Marques was a
director of Itec East. Furthermore, he conceded
that it was Ms
Marques, who presented him with annexure “A” at the time
when discussions took place and she was the
person who later on also
presented the plaintiff with annexure “B”.
[15]
Ms Yvonne Van Wyk was the second witness called on behalf of the
plaintiff. In short it was her testimony that at the time
when the
rental agreement was concluded between the plaintiff and the
defendant, that she was the financial director of the plaintiff
company. That, she was not present when the terms of the rental
agreement were negotiated but was the person who signed the agreement
on behalf of the plaintiff company. This agreement, was signed before
receipt of annexure “B”.
[16]
During cross-examination, she conceded that the relationship between
the plaintiff and the defendant was regulated by the written
rental
agreement concluded between them and that at the time when she signed
the rental agreement that she did not read all the
terms and
conditions contained therein. Furthermore, that she signed annexure
“A” on the advice of Mr Potgieter who
had informed her
that the plaintiff will become the owner of the photocopy machine
after three years and that a letter to that
effect will be provided
to the plaintiff, i.e. annexure “B”. Under
cross-examination she conceded that Itec East and
Itec Finance (Pty)
Ltd are two different entities, and that Ms Marques was a director of
Itec East and not of the defendant.
[17]
This then the totality of the evidence presented on behalf of the
plaintiff.
[18]
Ms Lynette Van der Walt was the first to testify on behalf of the
defendant. It was her evidence that initially she was employed
by
Itec Finance and responsible for collection of rentals from clients.
She testified, that initially the rental agreements concluded
between
the plaintiff and its clients, would be for a period of three years,
where after the rented equipment would need to be
returned to the
defendant and where it was not returned, the defendant would continue
to bill the client as if the contract had
not been cancelled. In was
further her testimony, that it was not an option for the clients not
to return their equipment as their
agreements so concluded, was
premised on a lease of their equipment and not a sale thereof and as
such ownership of the property
will never pass to the clients. She as
a result distanced herself from the contents of annexure “B”.
Finally, she concluded
her testimony that the signatories of annexure
“B” were not employed by the defendant, and as such they
could not negotiate
and bind the defendant with their actions.
[19]
During cross-examination she disavowed herself with the contents of
annexure “B”, but conceded that on a plain
reading of it,
read together with annexure “A” that the plaintiff would
become owner of the rented equipment if it
complied with all its
obligations in terms of the agreement. She however remained adamant,
that annexure “B” did not
form part of the rental
agreement concluded with the plaintiff company. Furthermore, that it
terms of annexure “A”
and at the end of 36 months’
rental period that the agreement would automatically terminate and
that the defendant thereafter
would only continue to debit the
clients account on a month to month basis, if the rented equipment
was not returned by the client.
She was unable to explain why the
defendant would admit in its Amended Plea
[7]
that the
agreement concluded between the parties, consisted of both annexures
“A” and “B”, when this is
in contradiction
with clause 2.1.7 contained in the rental agreement.
[20]
The last witness to testify on behalf of the defendant was Ms Nada
Ford. It was her testimony, that she had only been employed
by the
defendant for a period of just over two and a half years and that
Itec Finance (Pty) Ltd and Itec East are two distinct
and separate
entities. Furthermore, that at the time that the rental agreement in
question was concluded between the plaintiff
and the defendant, that
she had not as yet taken up employment with the defendant and as such
she bears no personal knowledge of
how the agreement was concluded
between the parties.
[21]
This then the totality of the evidence presented by the defendant.
ANALYSIS
[22]
In determining whether the plaintiff can succeed with its Claim “A”
for enrichment, the plaintiff must have presented
evidence that it
has met the requirements for a claim for enrichment.
[23]
On the undisputed evidence presented before this Court, the plaintiff
would have obtained ownership of the rented equipment
(
the
photocopy machine
) after 36 months if it indeed had complied with
all its obligations in terms of the rental agreement.
[24]
It is common cause between the parties, that the plaintiff complied
with all its obligations in terms of the rental agreement
concluded
between the parties.
[25]
If it is then to be accepted that the plaintiff became the owner of
the rented equipment after 36 months, the rental agreement
would have
terminated around June 2008 and it follows, that the defendant would
not have been entitled to deduct any further premiums
from the
plaintiff’s account (as per annexure “C”) for the
lease of the equipment.
[26]
The legal basis being; that these deductions were not due and/or
owing by the plaintiff and in so doing the defendant have
enriched
itself at the expense of the plaintiff.
[27]
On the undisputed evidence presented before this Court, these
deductions were made unjustified and under the circumstances
without
a
sine causa.
DEFENCES
[28]
The defendant in order to escape liability had raised a number of
defences in its Amended Plea. The first being that in terms
of
annexure “A”, and more specifically clause 2.1.7 thereof,
that it will remain the owner of the leased equipment
upon
termination of the agreement.
[29]
In this regard it was the evidence on behalf of the plaintiff that
annexure “B” granted it ownership of the rented
equipment
upon termination of the lease agreement and this agreement was
presented to them and signed by Ms Marques.
[30]
In this regard, the defendant failed to present any evidence in
rebuttal, in the form of Ms Marques, distancing herself from
the
contents of annexure “B” and in the same vain it is also
not denied by the defendant, that the very same Ms Marques,
presented
the plaintiff with the terms as set out annexure “A”,
which they themselves admit is the rental agreement
concluded between
the plaintiff and themselves.
[31]
The second defence raised by them, relates to them continuing to
debit the plaintiff’s bank account because the plaintiff
remained in possession and continued to use the rented property. In
this regard, they had pleaded that they had addressed a letter
dated
9 October 2015, wherein they had demanded the return of their
property, but despite this correspondence no response was received
from the plaintiff. To date the plaintiff remains in possession of
their rented equipment and it is for this reason that they continue
to deduct its bank account.
[32]
Now as already mentioned, the lease agreement expired around 9 June
2008. One would therefore have expected of the defendant
being the
owner of the leased equipment to at the time have directed
correspondence to the plaintiff seeking the return of their
leased
equipment alternatively confirmation as to whether the plaintiff
wanted to carry on leasing the equipment in question on
a month to
month basis. In this regard likewise, no evidence was presented by
the defendant, seeking confirmation from the plaintiff
as to whether
that they wish to continue with the lease agreement on a month to
month basis. Instead what one finds is instead
a response by them to
correspondence directed to them at the instance of the plaintiff
seeking an explanation as to why they continue
to make deductions
from its account and it is only then that they enquired about the
return of their leased equipment failing which
that the agreement
will continue on a month to month basis.
[33]
A third defence raised by the defendant relates to the authority
which it contends, Ms Marques lacked in order to bind the
defendant.
In this regard it was argued by counsel for the defendant, that Ms
Marques was never a director of the defendant and
as such she had no
authority nor was she ever employed by the defendant. In this regard
it is rather improbable, that Ms Marques
acting with no authority on
behalf of the defendant, would present the plaintiff with an
agreement drawn up by the defendant, on
terms agreed to by the
defendant and which agreement was ultimately signed by the defendant.
[34]
Counsel appearing for the defendant had submitted that as the
agreement was signed by both parties, both of them, should be
held to
the terms set out in annexure “A”.
[35]
Furthermore, that at best annexure “B” should be seen as
a purported confirmation of an oral agreement granting
ownership to
the plaintiff and taking into account the contents of both these
annexures, it is clear that they cannot exist in
conjunction with one
another.
[36]
In addition the defendant had also placed great emphasis on the
failure on the part of the plaintiff to have read and familiarise
themselves with the terms contained in annexure “A”, and
if it had done so, it would have noted that annexure “A”
did not provide for ownership to pass to the plaintiff.
[37]
Furthermore, clause 14 contained in annexure “A”
specifically provides that any amendment to a term or condition
contained in the agreement should be made in writing and signed by
both parties and with regards to annexure “B” it
makes no
reference to any term of the agreement contained in annexure “A”.
[38]
It is on this basis that counsel had argued, that it cannot be found
by this court that indeed annexure “A” had
in fact been
amended by annexure “B”.
[39]
As I see it, it is not the plaintiff’s case, that annexure “B”
amended annexure “A”. It is the
plaintiff’s case
that annexure “A” was concluded with the un`derstanding
that ownership of the equipment will
pass over to the plaintiff upon
the termination of the lease agreement. Thus, annexure “B”
merely served as confirmation
of the terms which the parties had
reached, that ownership of the equipment will pass upon the expiry of
the initial three years,
rental period.
[40]
Having regard to the conspectus of evidence presented, I am
satisfied, that the plaintiff has discharged its
onus
in
proving that the defendant has been unjustifiably enriched at the
expense of the plaintiff.
[41]
A determination in respect of Claim A (the main claim) in my view is
dispositive of the plaintiff succeeding with its claim,
and as such
no need exists for this Court to express an opinion on any of the
alternative claims.
ORDER
[42]
Consequently, the following order is made:
42.1 Payment
of the amount of R 689 467.69
42.2 Interest
of the aforesaid amount at the applicable rate as
Prescribed
by Section 1 of Prescribed Rate of interest Act, 55
of
1975, from time to time, applicable to the payments made
as
attached to the particulars of claim as annexure “C” and
is
attached
hereto, payable from date on which the respective
payments
have been made after 9 June 2008, respectively;
42.3 Costs of
suit, inclusive costs consequent upon he employment
of
two counsels, where so employed.
C.J. COLLIS
JUDGE
OF THE HIGH COURT
Appearances
For
the Plaintiff
:
Adv. R. Raubenheimer &
Adv M. Jacobs
Attorney
for the Plaintiff
: Coombie Commercial Attorneys
For
the Defendant
: Adv. I. Sebothoma
Attorney
for the Defendant :
Rahman & Rahman Inc.
Date
of Hearing
:
04 and 09 October
2020
Date
of Judgment
: 15 February 2021
Judgment
transmitted electronically.
[1]
Particulars of Claim Index 074-6 para 5
[2]
Particulars of Claim Index 074 -6,7 para 6 & 7
[3]
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue [1992] 4 All
SA 62 (A).
[4]
McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236
(A), 2001 (3) SA 482 (SCA)
[5]
Letter from Potgieter to Itecfin dated 5 October 2015 Index 075-11
[6]
Letter from Itecfin to the Plaintiff dated 9 October 2015 Index
075-12
[7]
Amended Plea Index 074-36 para 2