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[2021] ZAGPPHC 324
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Qiniseka Solutions CC v Shaicon Tendering Service (Pty) Ltd and Another (72572/2017) [2021] ZAGPPHC 324 (20 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: 72572/2017
In the
matter between
QINISEKA
SOLUTIONS CC
(REG
NO:
2007/252814/23)
Plaintiff
and
SHAICON
TENDERING SERVICE (PTY) LTD
First
Defendant
(REG
NO: 2012/049739/07)
GODFREY
THAPELO
SHAI
Second Defendant
(ID
NO: [….])
JUDGMENT
MATSEMELA AJ
[1] The plaintiff is Qiniseka Solutions, a close corporation duly
registered and incorporated with the provisions of the
Close
Corporations Act 69 of 1984
with its registered office at 247
President Street Johannesburg. The first Defendant is Chaicon
Tendering Services PTY LTD a company
duly incorporated and registered
in accordance with Companies Act having its chosen
domicilium
executandi
at 445 Steyn Street Pretoria North. The second
Defendant is Godfrey Thapelo Shai an adult male having hiss chosen
domicilium executandi
at 445 Steyn Street Pretoria North.
[2] The Plaintiff’s
two claims are based on two loan agreements (hereinafter referred to
as either the first or the second
loan respectively) entered into
between the plaintiff and First Defendant, and which were supported
by a suretyship agreement signed
by the Second Defendant. The
Defendants allege that the loans have been repaid in full and that no
monies are due and owing to
the Plaintiff.
APPLICATION FOR
AMENDMENT
[3] At the beginning of
the trial Counsel for the Plaintiff brought an application by the
Plaintiff to amend the particulars of
claim as follows
“
The suretyship
agreement is contained in the written agreement already attached
hereto as annexure “POC4” and specifically
clause 8
thereof, Alternatively to the aforementioned second defendant bound
himself as suretyship and co-principal debtor towards
the plaintiff
for the due and proper fulfilment of the obligations of the first
defendant in respect of the second loan agreement,
which liability is
extended
from the deed of suretyship attached as
annexure “POC4” and which liability was confirmed in
annexure “POC4”
2
By deleting of the
whole of paragraph 22
4
By inserting the
following the following new paragraph 25 below renumbered paragraph
25
25.1 On or about 9
January, the first defendant and/or second defendant made payment to
the Plaintiff in the amount of R300 000.00in
respect of the
first loan agreement
5
By replacing prayers 1
and 2 in respect of claim 1 as follows;
“
1 Interest on
R600 000.00 at a rate of 15% per month, computed monthly from 9
December 2017;
“
2 Payment of the
amount of R300 000,00 and the interest thereon at a rate of 15%
per month, computed monthly from 10 January
2017 until the date of
payment”
[4] At the end of the
trial I requested both parties not to make oral arguments but file
extensive heads of arguments. The Heads
of Argument were supposed to
be filed on or before the 6 July 2020. The Plaintiff’s Heads of
Argument were filed timeously
however those of the Defendant’s
are to date not filed. More than a dozen attempts have been done to
the Defendant’s
office via my registrar requesting the Heads of
Argument but to no avail and consequently I decided to proceed and
write the judgement
without their Heads of Argument.
THE FOLLOWING WERE
COMMON CAUSE
[5] (a) The first loan
agreement was entered into between Plaintiff and First Defendant on 8
September 2016. Payment was made by
the Plaintiff to the First
Defendant of R600,000.00. A suretyship agreement was entered into by
the Second Defendant in terms of
which he bound himself as surety for
and co-debtor with the First Defendant for repayment of the loans;
(b) The second loan
agreement was entered into between the Plaintiff and First Defendant
on 15 December 2016; Payment of R100,000.00
was made by Plaintiff to
First Defendant; Repayment towards the loan agreements were made,
namely on 29 December 2016 payment of
R280,000.00 and on 3 April 2017
payment of R23,000.00
[1]
.
(c) That the first loan
agreement was duly entered into and that payment of R600,000.00 was
made to the Plaintiff in terms of this
loan agreement.
(b) That the second
loan agreement was also duly entered into and that the payment of
R100,000.00 was made to the Plaintiff
in terms of the second loan
agreement.
(d) Two payments were made
towards the Plaintiff, namely a payment of R280,000.00 on December
2016, and another of R23,000.00 made
on 3 April 2017. As to whether
these payments were made towards the loan agreements remains in
dispute.
LEGAL ARGUMENTS
[6] A third payment which
was made to the Plaintiff by the Defendants in the amount of
R410,227.64 made on 24 July 2017
[2]
,
was the main bone of contention. The Plaintiff alleges that the
payment was made to him by the Defendants in relation to another
agreement/transaction between the parties (the so-called “TWF
agreement/transaction”).
[7] The Defendant’s
counsel responded by saying that the payments which were made to the
Plaintiff were payments towards the
loan agreements, and that such
payments were the last amounts due to the Plaintiff that settled all
its liability vis-a –vis
the Plaintiff. If the Plaintiff wanted
to amend his particulars of claim as aforementioned, he should have
filed a replication.
[8]
Defendant’s counsel further objected against the fact that the
annexures of
the plea were not contained in the pleading’s
bundles. He went as far as to allege that the exclusion of the
annexures when
they were loaded on caselines was malicious and
requested the Court to reject the application to amend the
particulars of claim
outright.
[9] In reply the Plaintiff
argued that a replication would have served no purpose where the
Plaintiff would deny what the Defendants
alleges (that the loan
agreements were paid in full).
EVIDENCE
[10] Sibusiso
Gcabashe testified on behalf of the Plaintiff and Godfrey Thapelo
Shai on behalf of the Defendants.
PLAINTIFF’S
EVIDENCE
:
[11] Mr Gcabashe testified
that he is the sole member of the Plaintiff’ and the
Plaintiff’s business entails trucking
and project management
services. He was introduced to the Defendants via a mutual friend,
one Thabang. The Defendants indicated
to him that the First Defendant
needed money for a certain project, and the Plaintiff indicated a
willingness to borrow money to
the First Defendant subject to a
specific return that the Plaintiff wanted from the money loaned.
[12] To ensure a return on
the money loaned, the Plaintiff insisted that a loan agreement be
entered into, that interest be payable
on the loan amount, and that
the Second Defendant enter into a suretyship for repayment of the
money in the event that the First
Defendant is unable to do so.
[13] The parties entered
into the first loan agreement and clause 8 thereof specifically made
provision that the First Defendant’s
obligations are secured by
the Second Defendant, as a surety and co-principal debtors.
[14] During December
2016, the First Defendant requested a further loan of R100,000.00 for
the project as that the First Defendant
was nearly done with. The
Plaintiff agreed and insisted on another loan agreement which also
contained a clause that secured the
loan by having the Second
Defendant be a surety for the amount borrowed. The signed suretyship
agreement was received by the Plaintiff
from the Second Defendant via
email on 29 September 2016. The second loan had the same terms as the
first terms.
[15] The Defendants
promised to repay the Plaintiff after the project was finished.
The First Defendant made partial payment
to the Plaintiff by paying
R280,000.00 and R23,000.00 only, and the remaining amounts remain due
and payable to the Plaintiff.
The Plaintiff drafted the loan
agreements, and his attorney drafted the suretyship agreement to
strengthen the Plaintiff’s
legal case.
[16] Because of the
business relationship between the parties, they entered into another
agreement that pertained to a business
venture separate from the two
loan agreements, namely a project for an agent of Transnet, TWF. In
terms of this agreement, the
Plaintiff utilized the credentials of
the First Defendant to secure a project of TWF, and the Plaintiff
then proceeded to do the
work on the TWF project under the name of
the First Defendant.
[17] He testified that the
parties did not agree to certain repayment terms or on a specific
commission percentage for the First
Defendant for utilizing the First
Defendant’s credential for the project, but that the Plaintiff
would have to be paid for
the project upon completion of same and for
the work the Plaintiff actually did on the project.
[18] The First
Defendant conducted no work on the TWF project except for having the
First Defendant’s name and
credentials utilized. All the work
on the TWF project was conducted by the Plaintiff, and the Plaintiff
even paid the suppliers
on the project directly. After the TWF
project, the First Defendant received payment from TWF for the TWF
project, and the First
Defendant decided to deduct commission of
R18,500.00 from the amount paid, and paid over the remaining money to
the Plaintiff.
[19] As a
result of the abovementioned TWF project and the R410,227.64 paid to
the Plaintiff after completion of the
TWF project, the mentioned
payment was not made towards the loan amounts, but a separate
agreement between the parties pertaining
to the TWF project.
[20] He
testified that he emailed the Second Defendant and attached a
quotation that the First Defendant had to insert
onto its letterhead
and which was to be sent to TWF. In Whatsapp communications between
Mr Gcabashe and the Second Defendant on
5 May 2017, the amount for
the quotation was confirmed as being R382,364.21. Mr Gcabashe
confirmed the email address of the person
at TWF to whom the
quotation had to be sent, and the Second Defendant confirmed that it
was indeed sent
[3]
[21] In Whatsapp
communications between Mr Gcabashe and the Second Defendant on 12 May
2017, the Second Defendant indicated that
payment from TWF was not
yet received. He provided him with the number of the person at
TWF that be contacted
[4]
.
Further communication about “the Transnet project” and
payment thereof, was held on 24 May 2017
[5]
.
On 30 May 2017, First Defendant was requested to forward the invoice
to Transnet
[6]
.
[22] He contracted suppliers
on the TWF project and paid them. Then tax invoice of a certain
supplier on the TWF project
was confirmed. The invoice was issued to
the First Defendant, although the contact person was confirmed on the
invoice to be “Ntokozo
Hadebe”, who is his wife
[7]
.
He made payment of suppliers
[8]
.
[23] He
provided the First Defendant with a tax invoice on the 14 June 2017,
which the First Defendant had to issue
out a tax invoice to TWF. The
particulars for the First Defendant’s invoice to TWF was
provided by the Plaintiff on 14 June
2017, and was for an amount of
R428,727.64
[9]
.
The First Defendant issued out an invoice to TWF for R435,872.40. The
difference between the amount of R428,727.64 and R435,872.40
was for
minor incidentals and expenditure that was incurred on the project,
which had to be added to the eventual invoice to TWF.
[24] The final invoice to
TWF from the First Defendant was in the amount of R435,872.40, and
this amount was paid by TWF
[10]
[11]
on 17 July 2017. On 18 July 2017 the Second Defendant confirmed in
Whatsapp communication to him that “
your money was paid”
and that they “
must talk about the commission”
.
The Second Defendant proposed that the commission must be R18,500.00.
The Second Defendant indicated on 19 July 2017 to him that
“
I
need to transfer your money”
[12]
.
[25] On 20
July 2017, he corresponded via Whatsapp with the Second Defendant and
indicated that the Second Defendant
can deduct the R18,500.00 if he
so insists, but requested that payment of the remained be made as
suppliers on the TWF project
must be paid
[13]
.
[26] On 20
July 2017 the Second Defendant indicated that commission is payable
for using the First Defendant’s
credentials. The Second
Defendant then also requested settlement amounts on the loan
agreements
[14]
.
On 21 July 2017, the Second Defendant
again
indicated to him
that “
I want to pay in your TWF money”
.
[27] In
addition, Second Defendant also requested settlement amounts on the
loan agreements
[15]
.
In answer to the request for settlement amounts on the loan
agreements, he indicated that he would give same in future, and that
giving such settlement figures at that stage would serve no purpose,
as the money held by the First Defendant was money in respect
of the
TWF project.
[28] On 24 July 2017,
First Defendant made payment of R410,227.64. On 31 August 2017, after
payment of the R410,227.64, the Second
Defendant indicated to him
that he is still awaiting possible approval of a bank loan and
payment from clients, and as soon as
something comes through, he will
make payment
[16]
.
[29] On 8
January 2018, Second Defendant emailed him and indicated that he has
not yet received payments, that he is
expecting payment and want to
make
arrangement pertaining to repayment.
[30] Under
cross examination, Mr Gcabashe remained persistent with his version
and was not impugned. He persisted that
it was clear that the payment
of R410,227.64 was made immediately after payment from TWF was
received and
that the money paid to the
Plaintiff was for the TWF project’s compensation and not
repayment in terms of the loans. When
the Defendant’s version
was put to Mr Gcabashe, he reiterated his version. His version was
not successfully challenged at
all.
[31] In re-examination, Mr
Gcabashe confirmed that he did not give the
Defendants any settlement amounts
on the two loans during the time
that the TWF money was received by the First Defendant.
DEFENDANT’S
EVIDENCE
[32] The Second Defendant
testified that he entered into the two loan agreements with the
Plaintiff after having been introduced
to Mr Gcabashe via a mutual
friend earlier. He believed having repaid the Plaintiff in full in
respect of the loan agreements.
[33] He denied having
entered into any other
agreement
with the Plaintiff or Mr
Gcabashe in respect of the TWF project, and persisted that it was an
arrangement
between the parties, where he assisted the
Plaintiff. He indicated that only the two loan agreements existed
between the parties,
and no one else.
[34] He indicated that if
there was any obligation towards the Plaintiff, the Plaintiff ought
to have issued out an invoice to him,
and he would then have paid. He
confirmed that he quoted to TWF on the TWF project on behalf of the
Plaintiff as he assisted the
Plaintiff to get the project under the
name of the First Defendant. He confirmed that Mr Gcabashe made all
the payments of suppliers
on the TWF project.
[35] He testified that
after the TWF project, the Plaintiff and First Defendant had not
agreed on how the profits would be shared
and until this day have not
decided on how the profit would be shared, and that the parties must
still do so. He acknowledges that
the First Defendant still owes
money to the Plaintiff in respect of the TWF project, but that they
must first decide how the money
must be shared. [36] He
testified that where he made reference to “commission” in
the Whatsapp communication,
he was referring to the TWF project. He
further testified that because no agreement was reached about the
commission and the profits,
such agreement must still be made until
this day. He confirmed that the money paid to the First Defendant on
17 July 2017 was received
from TWF for the TWF project. [37] He
confirmed having requested settlement figures of the two loan
agreements during the time
that the TWF money was received, because
he was then in a position to settle the loans. He testified that the
TWF payment was “at
an early stage” and because there was
no agreement on how the money must be shared, he was ready to settle
the loans. He
testified that he wanted to make payment in respect of
the loans first and then discuss the sharing of the TWF money.
[38] He testified that he
made payment that he believed covered the amount outstanding under
the loan’s agreements. He never
received a breakdown of the
amount payable under the loan agreements. He is still willing to
discuss payment terms of the TWF money.
He testified that although
the references on the payments to the Plaintiff differed, they all
pertained to the repayment of loan
agreements.
[39] Before moving on to
the aspect of cross-examination, I posed various questions to the
Second Defendant during his examination-in-chief,
but which questions
remained mainly unanswered by the Second Defendant. I even requested
the Second Defendant to confirm that he
indeed consulted with his own
his attorney, as he seemed to not remember answers to questions posed
to him by his own attorney.
CROSS EXAMINATION
[40] During
cross examination of the Second Defendant confirmed that he entered
into a suretyship agreement annexed
to the particulars of claim, and
that the suretyship covered his liability in respect of both loan
agreements.
[41] The Second Defendant
confirmed that neither of the Defendants conducted any work on the
TWF project, that the Plaintiff conducted
all work on the TWF
project. The Second Defendant also conceded that the Plaintiff had to
be compensated for the work done, subject
to commission payable to
the First Defendant.
[42] The Second Defendant
denied that the commission to be deducted from the TWF money, was
agreed upon between the parties and
persisted that they did not agree
to how it was to be distributed.
[43] He was asked how he
arrived at the amount paid to the Plaintiff. He responded by saying
that he made the deduction from the
TWF money received (R435.872.40).
He also made deduction of an interest calculation he made on the loan
agreements. He made those
deductions on his own volition. However, it
was put to him that the amount he indeed paid over to the Plaintiff
(R410,227.64) was
the amount of the Plaintiff’s first invoice
(R428,727.64
[17]
)
minus the R18,500.00 commission he proposed be deducted
[18]
,
which equalled to exactly the amount he paid to the Plaintiff. He
could not give a clear answer to this submission.
[44] The Second Defendant
persisted with the contention that he arrived at the amount of
R410,227.64 based on his own interest calculation
on the loan
agreements, despite it being put to him that this is false and
despite him failing to show to Court how such calculation
was made or
the amount was arrived at.
[45] The Second Defendant
persisted that the parties never agreed on what amount should be
repaid to the Plaintiff, despite it being
put to him that he
unilaterally decided to deduct R18,500.00 in respect of commission
from the total amount reflected on the first
invoice of the
Plaintiff, and despite his unilateral decision being
proved by documentary evidence. He
denied the contention that he is
being dishonest in Court.
[46] The Second Defendant
was requested to explain the basis upon which he decided that the TWF
money he received, could be earmarked
for payment of the loan
agreements. He initially was very evasive and failed to answer, but
then testified that the TWF money could
not be distributed yet, as
there was no clarity about the payment of VAT and income tax to SARS.
[47] It was put to him
that this was not testified about in his examination in chief and
that he is changing his version. He did
not answer to this
contention.
[48] When he was asked
whether the TWF money ever became the money of the First Defendant,
he testified that payment in respect
of the TWF project could not be
made because there was no agreement yet about the distribution
amongst the parties.
[49] When he was
questioned about the TWF money, he conceded that there was no
agreement about how the money should be shared, and
despite him
conceding that agreement had to be
reached, and thus that there was more than just an
agreement between
the parties, he persisted with his refusal that there was an
agreement between the parties.
[50] Despite it being put
to the Second Defendant that there was an agreement between the
parties where the First Defendant would
receive monies on behalf of
the Plaintiff, where commission was payable, etc., the Second
Defendant remained steadfast that there
was no agreement.
[51] In re-examination,
the Second Defendant testified that he would never have paid over any
money to the Plaintiff before first
deducting what is due to SARS.
ANALYS OF FACTS
[52] On the issue of
suretyship both Defendants had no less than three versions on it.
Both Defendants denied the suretyship agreement
in their plea
[19]
.The
Defendants then changed their version during the pre-trial conference
to allege that the deed of suretyship related to another
agreement
between the parties
[20]
.Counsel
for the Defendants, in his opening address indicated on the morning
of the trial, that the suretyship agreement is admitted
and not in
dispute anymore, and the Second Defendant in his testimony confirmed
such.
[53] Mr Gcabashe was a
good and credible witness. He testified with sincerity and reliance
can be placed on what he told the Court.
He did not falter in
cross-examination and his evidence was not discredited in any sense.
He persisted with his testimony throughout
and his testimony was
corroborated with the documentary evidence
before Court. His version
ought to be accepted above that of the
Second Defendant’s testimony.
[54] The Second Defendant
was an extremely evasive witness who failed to give straight answers,
and at times simply did not answer
the question at all. Furthermore,
he failed to sufficiently answer certain questions by elaborating on
irrelevant matter in his
answers.
[55] Furthermore, even
after a certain and obvious impugning of the Second Defendant’s
version, he simply persisted with it
despite glaringly untruthful. If
one considers one example would be the manner in which he arrived at
the R410,227.64 paid to the
Plaintiff: Second Defendant persisted
that he made his own interest calculation on the loan agreements,
could not recall the calculation,
and upon a very simple maths
calculation on the TWF transaction was showed exactly how he arrived
at the amount, and which showed
that he paid over money in respect of
the TWF project and not the loan agreements, he still refused to
concede that he made payment
of the R410,227.64 in terms of an
interest calculation he made.
[56] The Second Defendant
could not explain to Court why he was entitled to allocate and
earmark the TWF money he received to payment
towards the loan
agreements. Despite the Court and writer hereof requesting his answer
on many occasions, he simply failed to give
a proper explanation for
same.
[57] The Second Defendant
refused to concede or acknowledge that he
unilaterally decided to
deduct R18,500.00 as commission from TWF
money received, and persisted therewith that the parties never
reached an agreement about
how the TWF money must be shared.
[58] This Second
Defendant’s version is highly improbable and highly unlikely.
It remains unproven and is not corroborated
by any documentary
evidence. In fact, it is heavily contradicted by the Plaintiff’s
oral and documentary evidence, the documentary
evidence which
Defendants did not place in dispute.
[59] There are clear
differences between the references on the bank statements in respect
of the payments to the Plaintiff. The
first two payments are clearly
referenced as “loan” and the third, contentious payment
is not so earmarked. The Second
Defendant’s version on this
discrepancy is improbable.
[60] The Second
Defendant’s outright refusal to acknowledge an agreement
between the parties in respect of the TWF project
(where commission
was payable, monies to be repaid to the Plaintiff, etc.), is a
further indication of how dishonest witness the
Second Defendant was.
The Second Defendant’s testimony was dishonest, unreliable and
improbable and should be outright rejected.
LEGAL FRAMEWORK
[61] In
evaluating evidence the following was stated in
Stellenbosch
Farmers Winery Group Ltd & Another v Martell ET Cie and
Others
[21]
:
“…
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities.
As to (a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity
of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i)
the witness candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence,
(iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extra curial
statements or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency
of his performance compared to that of other
witnesses testifying about the same incident or events.
As to (b), a witness
reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) AND (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof.
As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on the
disputed issues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the
party burdened with the
onus of proof has succeeded in discharging it. The hard case, which
will doubtless be the rare one, occurs
when a court’s
credibility findings compel it in one direction and its evaluation of
the general probabilities in another.
The more convincing the former,
the less convincing will be the latter. But when all factors are
equipoised probabilities prevail.”
[62] It is clear from the
evidence that the TWF project and the two loan agreements were never
to be consolidated with one another,
and that the payment of
R410,227.64 very clearly related to the TWF transaction/agreement/
arrangement between the parties. The
Defendant intended to pay the
Plaintiff in respect of the TWF project alternatively such payment
was made in respect of the TWF
project and did not relate at all to
the repayment of the loan agreements repayment.
[63] It is in my view that
the probable chain of events after the TWF money was received by the
Defendants, is that the Defendants
considered the first invoice
provided by the Plaintiff (R428,727.64), unilaterally decided what
the commission would be (R18,500.00),
communicated this to the
Plaintiff, made such deduction, and then made payment of the
remainder to the Plaintiff (R410,227.64).
[64] The Defendants have
failed to provide the Court with another basis for
arriving at
the exact amount paid over to the Plaintiff. The
Plaintiff never provided the Defendants with a breakdown of the
amounts due in
terms of the loan agreements. It was not disputed that
the money received by the First Defendant on 17 July 2017 is TWF
money for
the TWF project. The Defendants have failed to give any
basis for the Defendants becoming entitled to unilaterally decide how
the
TWF money would be distributed.
[65] The Defendants have
been deceitful in their initial dealings with the Plaintiff and
has continued
such deceitfulness in
their litigation against the Plaintiff, where they have changed their
versions, failed to comply with court
rules and persisted to trial
with their futile defence.
[66] The Defendants’
unilateral decision to earmark the payment of the TWF money for
payment towards the loan agreements,
is deceitful untruthful and
ought to be rejected.
[67] The allegation that
the Defendants would not have paid over the money without first
deducting whatever is due to SARS does
not hold water because:
(a) It is not in line with
what the evidence of the Plaintiff shows;
(b) Taxpayers are to pay
to SARS such VAT amounts due after having considered all VAT input
and output amounts, which is an eventual
calculation made at the end
of a two cycle, and not an immediate payment;
[68] First Defendant was
only entitled to deduct commission. It is the Plaintiff that had to
pay VAT to SARS in terms of the money
received into its accounts. It
is my view that the Second Defendant created such version during
cross-examination and that he did
not include such evidence in his
examination in chief.
[69] The Defendants
indicated to the Plaintiff during August 2017 and January 2018 that
monies are still due and it is my view that
such pertained to the
loan agreements outstanding money and not the TWF money.
[70] I am of the view that
the evidence of the Defendants should be dismissed on the basis that
it is improbable and untruthful.
I accept the version of the
Plaintiff, which is corroborated by documentary evidence.
THE AMENDMENT SOUGHT BY
THE PLAINTIFF
[71] The Plaintiff served a notice of
intention to amend its particulars of Claim on 19 June 2020
[22]
.
The Defendants did not file any objection to the proposed amendment.
The Plaintiff uploaded the amended pages, containing the
proposed
amendments, onto the Caselines system
[23]
on 23 June 2020, in terms of which the parties proceeded with the
trial hearing on 29 June 2020.
[72] Counsel for says that
in preparation of this trial realised that the amended pages, and
specifically paragraph 25.1 thereof,
is inaccurate insofar as the
payment of R300,000.00 is concerned. Testimony confirmed the payment
of R280,000.00 on 29 December
2016 and R23,000.00 on 3 April 2017
respectively, which amounts to payment by the Defendants in the
amount of R303,000.00 and not
R300,000.00 only. Furthermore, the
payments made were not made on 9 January 2017, but as per the date
aforementioned.
[73] Furthermore, the
Defendants were placed in possession of all the discovered
documentation for a substantial period before trial,
and could not
have been prejudiced by the Plaintiff not filing a replication, as
the Plaintiff’s documentary evidence was
at all times available
to the Defendants very well knew about all the facts that the
Plaintiff testified about
.
[74] It is trite that the
Court may amend pleadings at any time before judgement and the Court
was requested to do so. The proposed
amendment would not prejudice
the Defendants and, in fact, would benefit the Defendants as the
claim amount would be lessened by
the amendment.
[75] The Court stated in
Myers v Abramson
[24]
that there is no reason in principle why an amendment should not
be granted, provided it does not result in prejudice or injustice
which cannot be cured by an order for costs.
[76] I am of the view that
a replication would have served no purpose where the Plaintiff would
deny what the Defendants allege
(that the loan agreements were paid
in full). Furthermore, the Defendants were placed in possession of
all the discovered documentation
for a substantial period before
trial, and could not have been prejudiced by the Plaintiff not filing
a replication, as the Plaintiff’s
documentary evidence was at
all times available to the Defendants very well knew about all the
facts that the Plaintiff testified
about. It is my view that a
replication was not necessary and all of the evidence before Court is
sufficient to sustain the Plaintiff’s
cause of action and thus
did not need to be elaborated on in pleadings.
[77] The Plaintiff proved the existence
of the TWF project and the other
agreement between
the parties by referring the Court to various
discovered documents in the Plaintiff’s trial bundle, which has
been discussed
above. Mr Gcabashe confirmed this, in his testimony by
referring to those documents.
[78] The oral
evidence presented to the Court, is In line with the documentary and
the relief sought ought to be amended insofar
as paragraph 25.1 and
the prayers are concerned. The Court grants the amendment
accordingly.
COSTS OF THE RESCISSION
APPLICATION
[79] This Court was
informed at the trial hearing that costs of an interlocutory
rescission application had to be adjudicated at
trial as such issue
was reserved for argument at trial.
[80] On 16 March 2020, the
Acting Deputy Judge Potterill Issued out a directive
[25]
in terms of which the costs of the interlocutory rescission
application ought to be argued at trial. I was requested by the
Plaintiff
in of the heads of argument that such argument is to be
made in writing as opposed to orally.
[81] A bundle with the
relevant documents is contained on the CaseLines system under Section
009, where the application to compel,
court order and rescission
application are contained.
[82] An application to
compel was served by the Plaintiff on the Defendants’
correspondent attorney on 21 May 2019 (proved
by a stamp and dated by
the receiving attorneys). The application to compel was based thereon
that the Defendants have failed to
comply with a Notice in respect of
Rule 35(3) since service thereof on 8 August 2018 (failed to comply
of more than 1 year).
[83] The application was
proceeded with on that basis and was never opposed; the court order
was granted on 2 October 2019. The
court order was formally served on
the Defendants on 15 November 2019.
[84] A rescission
application (seeking to have the order to compel rescinded) was
served on 11 December 2019 (almost a month after
the court order was
served), and the application had an unopposed date of 10 September
2020 (9 months later), whilst the trial
was set down for 15 April
2020 (4 months later). The rescission would thus have been heard some
5 months after the trial and might
have led to a postponement of the
trial, which the Plaintiff avoided by approaching the office of the
acting DJP for assistance.
[85] The rescission
application was brought on the basis that the application was not
served on the Defendants attorneys, which
is entirely false. The
Defendants attorney has a correspondent on record, where all
documents of record thus far were served. In
addition, the
Defendants indicated that they were willing to comply with the Rule
35(3) notice, and thus the reasoning behind the
application was
fatally flawed.
[86] It is my view that
the application was an attempt to avoid the trial date of 15 April
2020, and that there was no proper basis
for the application to have
been instituted. The Defendants were properly served and where they
failed to comply for more than
one year, the Plaintiff was entitled
to bring the application. In addition, the Defendants contention that
they are willing to
comply, indicates that there is no
bona fide
defence showed for a rescission to actually be granted.
[87] The Defendants failed
to comply with the notice in terms of Rule 35(3) for more than one
year. The Rule 35(3) notice sought
the Defendants to provide the
Plaintiff with the First Defendant’s bank statement to prove
that the payment of TWF was indeed
paid into the First Defendant’s
bank account, and the bank statement formed a crucial part of the
trial proceedings.
[88] The Defendants thus
failed to show good cause at all by failing to indicate wilful
default or
bona fide
defence. The rescission was only agreed
to by the Plaintiff in order to avoid an unnecessary postponement of
the trial.
[89] The Defendants filed
no replying affidavit to clear up any of the issues raised in the
opposing affidavit. The Plaintiff has
been forced to file opposing
papers in a fatally flawed interlocutory application that is based on
a falsehood which was clearly
disproven.
[90] Counsel for the
Plaintiff submitted that the false allegations contained in the
rescission application was introduced by the
Defendants attorney of
record and not the Defendants themselves. The rescission application
is litigious and procedural in nature
and does not concern the
instruction of the Defendants to their attorney.
[91] The rescission
application did not have to be served on the Defendants but on the
Defendants attorneys of record as they were
acting as such. It is
Defendants attorneys are to blame for what transpired and for
instituting such application, not the Defendants.
I agree.
[92] It is trite that
where an attorney has displayed a lack of care, the courts have
awarded de bonis propriis costs.
[26]
I am of the view that this is an ill-considered application which was
brought by the attorney and not the party and I therefore
grant the
costs thereof
de bonis propriis
.
[27]
COSTS OF THE ACTION
[93] The Defendants have
persisted with their improbable and untruthful defence throughout the
litigation, and specifically since
the end of 2017. The Defendants
have caused the Plaintiff to incur many legal fees to bring an action
to finality, and which action
was defended on an untruthful and
unjustified basis from the start.
[94] Defendants clearly
disregarded the Court’s rules and procedures
throughout litigation,
one example being the disregard of a notice in
terms of rule 35(3) for more than 1 years, and necessitating an
application to compel.
The Defendants then went further by launching
a fatally flawed and futile rescission application, which is based on
literal dishonesties,
and which caused the Plaintiff to the approach
the Court for assistance to prevent the rescission application
leading
to postponement of the trial date.
[95] At the pre-trial
conference held on 4 June 2020, the Plaintiff requested the
Defendants to make a settlement proposal, but
the Defendants
indicated that there is none
[28]
.
It is my view that the Defendants ought to never have allowed this
action to proceed to trial, especially with such an untruthful
defence.
[96] As mentioned above,
the Defendants had three versions about the suretyship of the Second
Defendant. This shows how disingenuous
the Defendants were throughout
the litigation. It also caused unnecessary prejudice to the Plaintiff
in preparing for the trial,
because the Plaintiff prepared for trial
on the basis that the suretyship agreement is denied, only for same
to be admitted literally
a few minutes before the trial’s
commencement.
[97] It is my view that
whilst the Defendants alleged during the pre-trial conference
that the
suretyship related to another agreement between the parties,
the Plaintiff’s further discovery affidavit
[29]
dated 22 June 2020, clearly proved the date on which the Second
Defendant sent the suretyship agreement to the Plaintiff, proved
it
related to the loan agreements, and as such, could not continue to
deny same anymore.
[98] The Plaintiff should
not be out of pocket by having to compensate its legal
representatives for any expenses incurred during
the litigation, and
same should be paid for by the Defendants, who unnecessarily caused
this action to proceed on trial, which
ought to never happen in light
of the Defendants deceitful defence. I therefore award punitive costs
against the Defendants.
[99] I am dissatisfied
with the Defendant’s conduct throughout the litigation. The
suretyship agreement provides that the
Second Defendant will be
liable for payment of attorney and client costs should the Plaintiff
incur costs to implement the surety’s
obligations.
[30]
I therefore grant costs of the action against the Defendants on
attorney and own client scale.
PROOF OF PAYMENT OF
R100, 000.00
[100] During the trial
proceedings, and specifically during the Second Defendant’s
examination-in-chief, the Second Defendant
alleged that he has in his
possession proof of payment of R100,000.00 that was paid to the
Plaintiff.
[101] The Plaintiff did
not object to same being handed up. The Defendants did not request
the Court or the Plaintiff to obtain
the Plaintiff’s comment or
instruction thereon and the aspect was not persisted with.
[102] I am uncertain about
what the Defendants intended to achieve with handing same up. The
Defendants did not seek for their Plea
to be amended by
introducing the payment of R100, 000.00 as further payment towards
the loan agreements that the action revolves
around.
[103] The payment of the
R100, 000.00 was not canvassed with Plaintiff’s witness in his
cross-examination. It was introduced
at the eleventh hour in Second
Defendant’s examination and where no amendment of the
Defendants plea was sought, the proof
of payment was not of any real
consequences insofar as Second Defendant’s cross-examination is
concerned. I am going to disregard
the proof of payment as it does
not form part of the pleadings and is irrelevant to the issues that I
have considered.
Having said that I
therefore make the following order:
(a) The application for
amendment is granted accordingly.
(b) The costs of the rescission application are granted against the
Defendant and such costs are to be paid de bonis propriis
(c) Payment of interest on the amount of R600,000.00 from 9 December
2016 to 29 December 2016.
(d) Payment of interest on the amount of R320,000.00 from 30 December
2016 to 3 April 2017.
(e) Payment of R297,000.00 together with interest against the First
and Second Defendants jointly and severally, the one to pay
the other
to be absolved.
MOLEFE MATSEMELA
Acting Judge of the Gauteng Division of the High Court, Pretoria
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected and is
handed
down electronically by circulation to the parties/their legal
representatives by e mail and by uploading it to the electronic
file of this matter on CaseLines. The date for hand-down is
deemed to be 20
May 2021.
Date of
hearing:
29 June 2020 and 17 July 2020
Date of Judgment:
20 May 2021
For the
Plaintiff
Adv Keijser
Instructed by
EW
Serfontein and Associates
For the Defendant
Mr Mashele
Instructed by
Mashele Attorneys
[1]
CaseLines Section 002; page 002-15 and 16
[2]
CaseLines Section 002; page 002-17
[3]
CaseLines Section 003; page 003-1
[4]
CaseLines Section 003; page 003-2
[5]
CaseLines Section 003; page 003-3
[6]
CaseLines Section 003; page 003-4
[7]
CaseLines Section 003; page 003-35-36
[8]
Case lime Section 003; page 003-41
[9]
CaseLines Section 003; page 003-13
[10]
CaseLines Section 003; page 003-40
[11]
CaseLines Section 003; page 003-66
[12]
CaseLines Section 003; page 003-7
[13]
CaseLines Section 003; page 003-8
[14]
CaseLines Section 003; page 003-8
[15]
CaseLines Section 003; page 003-9
[16]
CaseLines Section 003; page 003-10
[17]
CaseLines Section 002; page 002-39
[18]
CaseLines Section 002; page 002-7
[19]
CaseLines Section 001; pages 001-42 to 001-43
[20]
CaseLines Section 006; page 006-7; paragraph 7.3.4
[21]
2003 (1) SA 11
(SCA) Nienaber JA 14I-J-15A-D
[22]
CaseLines Section 005
[23]
CaseLines Section010
[24]
[24]
1951 (3) SA 438 (C)
[25]
CaseLines Section 002; page 002-88
[26]
Masidi v Chemical Industries National Provident Fund Case No:
16/24267 13-12-2016
[27]
Le Car Auto Traders v Degswa 10138 CC 2013 JDR 1651 (GSJ)
[28]
CaseLines Section 006; page 006-4; paragraph 3.2
[29]
CaseLines Section 008
[30]
CaseLines Section 1; page 001-25; clause 11