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[2021] ZAGPPHC 327
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Nedbank Limited v Fixtrade 760 (Pty) Ltd and Others (A157/2018) [2021] ZAGPPHC 327 (31 May 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.
CASE
NO: A157/2018
In
the matter between:
NEDBANK
LIMITED
Appellant
and
FIXTRADE
760 (PTY) LTD
(In
liquidation)
First Respondent
DANIEL
JOSEPH
SHALALA
Second
Respondent
CLAUDE
BOULOS
AZAR
Third
Respondent
J U D G M E N T
The
judgment and order are accordingly published and distributed
electronically. The date and time of hand is deemed to be 10:00
on 31
May 2021.
TEFFO, J (HUGHES AND COLLIS JJ
CONCURRING
):
Introduction
[1]
The appellant, Nedbank
Limited (“
Nedbank
”)
appeals against the judgment of this Court in terms of which an
action instituted by it against the respondents in respect
of claim B
for payment of the sum of R5 536 068,14 for monies due and payable in
terms of an invoice discounting agreement (“
the
agreement
”)
entered into by and between it and the first respondent, Fixtrade 760
(Pty) Ltd (In liquidation) (“
Fixtrade
”),
was dismissed with costs.
[2]
The second and third
respondents were sued in the action in their capacities as sureties
and co-principal debtors
in
solidum
for all or any
sum(s) of money which Fixtrade may from time to time owe or be
indebted to Nedbank, its successors or assigns.
[3]
Leave to appeal was
granted on petition by the Supreme Court of Appeal (“
the
SCA
”) together
with condonation for the late filing of the appeal.
[4]
The appellant also seeks
an order condoning the non-compliance with Rule 49(6)(a) for failure
to apply to the Registrar for a date
for the hearing of the appeal
within 60 days after delivery of the notice of appeal. This
application was not opposed. Accordingly,
condonation was
granted by this court.
[5]
The appellant
simultaneously with its appeal, has also filed an application for the
amendment of the particulars of claim. This
application is opposed by
the respondents.
The parties
[6]
It will be
convenient in this appeal to refer to the parties as follows:
the appellant as Nedbank, the first respondent
as Fixtrade, the
second respondent as Mr Shalala and the third respondent as Mr Azar.
Where appropriate the first, second and third
respondents will be
referred to jointly as the respondents.
Background
[7]
On 28 May 2012 Nedbank
concluded an agreement with Fixtrade in terms whereof Fixtrade
obtained finance by selling existing and new
debts to Nedbank (
the
discounting agreement
).
Nedbank purchased Fixtrade’s debtors. Fixtrade would
render services and/or supply goods to its customers in the
ordinary
course of business and would invoice its customers accordingly. The
debt due to Fixtrade as set out in the invoices, was
sold to Nedbank
and Nedbank would pay an amount equivalent to 75% of the invoice
value to Fixtrade. The amount so paid to
Fixtrade would
effectively be an advance payment of the debt due in terms of the
invoice. All amounts due in terms of the invoices
which Fixtrade
issued to its customers and which were sold to Nedbank would be paid
into a designated deposit account held by it
with Nedbank, called a
“
Debtors Deposit
Account
”.
Once payment is received in the deposit account, Nedbank would pay
the remaining 25% of the invoice value.
Nedbank will charge a
certain fee, linked to the prime lending rate from time to time.
Fixtrade would, on a monthly basis, electronically
provide Nedbank
with details and particulars of the invoices which it had issued to
its customers. Nedbank will use the information
to establish and
calculate the amounts which would be paid over to Fixtrade.
[8]
On 17 April 2013, Nedbank
obtained a provisional winding up order against Fixtrade. The final
winding up order of Fixtrade was granted
on 13 August 2013.
[9]
Prior to the final winding
up order being granted and on 24 April 2013 Nedbank issued summons
against the respondents in respect
of two claims. Claim A was
for payment of the amount of R32 721,44 for monies lent and advanced
in terms of an oral agreement
entered into between Fixtrade and
Nedbank in respect of which Fixtrade opened a cheque account with
Nedbank. Claim B was for payment
of the amount of R5 536 068,14 for
monies that were due and payable to it in terms of the discounting
agreement concluded between
them. As per the particulars of claim,
Nedbank alleged that Fixtrade has breached the agreement in that it
ceased to make any payments
promptly when it fell due or at all.
Nedbank further alleged that as a result thereof, it has cancelled
the agreement, alternatively
does so herewith, as it was,
alternatively is, in the circumstances entitled to do so.
[10]
The respondents filed a
plea and counterclaim. Nedbank abandoned its claim A at the
commencement of the trial and the counterclaim
was also not pursued.
On 15 August 2016 the
court
a quo
dismissed
Nedbank’s claim B with costs. Nedbank applied for leave to
appeal against the dismissal of its claim B. Leave
to appeal
was dismissed. Eventually Nedbank petitioned the SCA for leave to
appeal. Leave to appeal was ultimately granted on petition
to the
Full Court of this division.
[11]
In the
court
a quo
Nedbank’s
evidence through Mr Kabue was about the breaches that were allegedly
committed by Fixtrade, the fact that the directors
of Fixtrade,
Messrs Azar and Shalala, were made aware of the breaches and they did
not dispute them. Meetings were held prior to
the cancellation of the
agreement and thereafter between Nedbank’s representatives and
the directors of Fixtrade to discuss
the conduct of Fixtrade on
Nedbank’s account. Further that the agreement between
Fixtrade and Nedbank was eventually
cancelled.
[12]
Further evidence by Messrs
Samuelson and Lourens of Nedbank related to the meeting of 19
December 2013 where the directors of Fixtrade
did not dispute
Nedbank’s cancellation of the discounting agreement. They did
not dispute providing Nedbank with false information
and Nedbank
Debtors Management’s discounting parts exposure of
approximately R5,5 million. It was also tendered as evidence
that the
directors of Fixtrade offered to repay the facility. However, Nedbank
rejected the offer.
[13]
Ms Warricker, the
liquidatrix of Fixtrade who testified on behalf of the respondents
corroborated the evidence of Nedbank’s
witnesses with regard to
certain breaches committed. This evidence will be elaborated in the
judgment.
[14]
The
court
a quo
per Kubushi J
had to determine whether Fixtrade had breached the agreement as
alleged by Nedbank and whether as a result thereof,
Nedbank cancelled
the agreement lawfully.
[15]
The
court
a quo
found that Mr Kabue’s evidence raised other defaults which were
not alleged in the particulars of claim. The evidence
did not
establish the conduct complained of in the particulars of claim that
Fixtrade ceased to make payments due in terms of the
agreement
promptly and on due date. It found that it was common cause
that Fixtrade was making payments and that no case
was made that the
amount claimed or any other amount was due and payable at the time of
the cancellation of the agreement or that
on any particular date
Fixtrade was in arrears with its monthly payments or failed to make
payment due on any particular due date.
[16]
It further found that the
evidence of Mr Kabue relating to the audit report was hearsay in that
the person who compiled the report
did not testify and the report was
not handed in at the trial.
[17]
The
court
a quo
dealt with the various breaches allegedly committed by Fixtrade and
concluded that they were not proved by oral evidence. With
regard to
the allegation that Fixtrade opened a new account with Standard Bank
and deposited debtors’ monies therein, the
trial court
concluded that while the respondents do not dispute the allegations,
there was no evidence that the account was opened
prior to the
cancellation of the agreement, Regarding the evidence that the
invoices were inflated, it was found that although
Fixtrade admitted
the facts in that regard, Nedbank could not attribute the blame on it
without having alleged and proved that
Fixtrade was vicariously
liable for the conduct of its employee, Ms Sharneck. Further
that even if it could be concluded
that Fixtrade was vicariously
liable for the conduct of Ms Sharneck, Nedbank was not entitled to
cancel the agreement on that ground.
[18]
In relation to the
evidence about the invoices allegedly owed by Cashbuild, it was held
that no evidence was led to prove that the
invoices existed, that
they were paid to Fixtrade and that Fixtrade did not pay the amount
thereof to Nedbank. Furthermore, that
there was no evidence to prove
that some of the invoices were indeed for Fixtrade’s sister
company in Cape Town.
[19]
Having regard to the
totality of the evidence, the
court
a quo
concluded there
were no proper reasons for Nedbank to cancel the agreement as it did.
[20]
Accordingly, it held that
Nedbank failed to prove claim B against Fixtrade and that it
cancelled the agreement unlawfully.
[21]
It is this judgment that
Nedbank seeks to appeal.
The grounds of appeal
[22]
Nedbank contends
that the court
a quo
erred in finding that: it failed to prove Fixtrade’s
breach of the agreement as pleaded in the particulars of claim;
it
failed to prove the quantum of its claim and that the amount was due,
owing and payable. Further that no regard should
be had to the
common cause facts, which were not specifically pleaded but fully
traversed and canvassed during the trial which
all point to and
proved the appellant’s entitlement to have cancelled the
invoice discounting agreement.
The application for leave to
amend the particulars of claim
[23]
Nedbank applies for leave
to amend paragraph 11 of its particulars of claim. It contends that
the purpose thereof is to introduce
further allegations which were
fully canvassed during the trial without objection, which would
entitle it to the relief sought
in the summons. It asserts that the
evidence that was presented on its behalf in the
court
a quo
which related to Fixtrade’s breach of the agreement and the
subsequent cancellation thereof, remains uncontroverted. The
trial
court accepted the evidence and did not make any adverse findings in
respect of its witnesses’ credibility.
[24]
Nedbank further contended
that Mr Azar was present throughout the trial and at all material
times approached his legal representatives
to give them
instructions. Mr Azar’s version was put to Nedbank’s
witnesses when they testified but he was not
called to testify. The
court
a quo
was informed at the commencement of the trial that Fixtrade and Mr
Azar would keep Nedbank strictly to its pleadings. Further that
the
only ground for cancellation of the agreement was that pleaded in
paragraphs 11 and 12 of the particulars of claim that Fixtrade
ceased
to make any payments due in terms of the agreement promptly on due
date or at all.
[25]
Notwithstanding this, the
respondents’ legal representative did not keep Nedbank strictly
to its pleadings. Instead, it participated
fully and canvassed all
other issues.
[26]
Nedbank submitted that it
succeeded in proving that Fixtrade failed to make payments due in
terms of the agreement, promptly on
due date or at all.
[27]
Nedbank further contends
that there was no objection to its evidence relating to the breach of
the agreement which was not specifically
pleaded. The issues
pertaining to that evidence were fully canvassed and ventilated.
The
court
a quo
ought to have taken into account all the facts and circumstances that
gave rise to the cancellation. In so far as it relied
on
Fixtrade’s breach of the agreement to support its cancellation
of the agreement which breach was not specifically pleaded
but fully
canvassed during the trial, it applies for leave to amend its
particulars of claim in order to bring the pleadings in
line with the
evidence tendered in the court below.
[28]
In opposing the
application, the respondent gave the history of the matter and
contended that the application has been launched
seven years after
the service of the summons, over four years after the trial and three
months before the hearing of the appeal.
It was submitted that Mr
Azar has in the process passed on and his demise was regarded as a
substantial problem which would prejudice
it in the conduct of the
litigation.
[29]
The respondent concedes
that Mr Azar was present throughout the trial. However, he elected
not to testify. It claims that
the appellant is now attempting
to change its pleadings and lead a new case after the death of Mr
Azar and in circumstances where
Mr Azar is no longer available to
adduce evidence and dispute the allegations. It denies that the
matter was fully ventilated in
the trial court as the evidence of Mr
Azar was not heard. It contends that the prejudice that it will
suffer cannot be cured
by an order of costs.
[30]
The respondent further
submits that it would be impossible for it to plead or reopen its
case and lead evidence to the case the
appellant is attempting to
present to this Court.
Applicable legal principles
[31]
In
deciding whether to grant or refuse an application for an amendment,
the court exercises a discretion and, in so doing, lean
in favour of
granting it in order to ensure that justice is done between the
parties by deciding the real issue between them
[1]
.
Amendments will usually be allowed unless the amendment is
mala
fide
or would cause prejudice to the other party which cannot be
compensated by a costs order or some other suitable order such as a
postponement
[2]
.
[32]
An
amendment must raise a triable issue – i.e., it must be of
sufficient importance to justify any procedural disadvantages
caused
by the amendment proceedings in the sense that the issue is viable
and relevant or will probably be covered by the available
evidence
[3]
.
[33]
Broome
JP held as follows in
British
Diesels Ltd v Jeram and Sons
[4]
:
“
If it should appear
that any substantial issue was duly canvassed in the court below,
then in my opinion we ought to regard it as
an issue to be decided
between the papers whether it has been formally pleaded or not. If on
the other hand, the application is
to put on the record issues which
were not fully canvassed, then no amendment ought to be allowed at
this stage.
”
[34]
This
principle was adopted by Howard JP in
Desai
v NBS Bank
[5]
where he said:
“
I do not consider it as
proper to grant an amendment of pleadings on appeal to introduce
issues which have not been fully canvassed
in the court below.
If such issues have not been fully canvassed in the court below,
prejudice to the other party is conclusively
presumed.
”
Discussion
[35]
Paragraph 11 of the
Particulars of Claim reads as follows:
“
The first defendant,
has in breach of the discounting agreement, ceased to make any
payments due in terms thereof promptly on due
date or at all.
”
[36]
The amendment sought is as
follows:
1.1
That paragraph 11 be deleted
in toto
and be substituted with
the following:
“
11.
The first defendant has, in breach of the discounting agreement:
11.1 ceased
to make any payments due in terms thereof
promptly on due date or at all;
and/or
11.2
breached its warranty given to the plaintiff that the debts would be
bona fide debts, owing to the
first defendant; and/or
11.3
was placed in final liquidation on 13 August 2013; and/or
11.4
withheld any money which is due to the plaintiff; and/or
11.5 opened
a new banking or similar account without first informing the
plaintiff in writing; and/or
11.6 acted
contrary in any way directly or indirectly to the interests of
Nedbank; and/or
11.7
failed to pay money received by it in respect of debts sold to the
plaintiff within 24 hours of receipt thereof.
”
[37]
The evidence relating to
the alleged breaches of the agreement by Fixtrade remains
unchallenged. It was also corroborated by Ms
Warricker who testified
on behalf of the respondents. Her evidence under
cross-examination was that after her appointment
as a liquidatrix of
Fixtrade, she was provided with the debtors’ statements of
Fixtrade. She established that Fixtrade had
a Nedbank and Standard
Bank account. She found that some debts which appeared on the
schedule of debtors owned by Nedbank
were paid into the Standard Bank
account, and bad debts which were written off were sold to Nedbank.
She knew that the debtors
received an instruction from Fixtrade to
pay the amounts for their debts into the Standard Bank account.
[38]
Although Mr Kabue
introduced the evidence that related to various breaches of the
agreement by Fixtrade which was not pleaded, that
evidence was
allowed and fully ventilated during cross-examination. The crux of
his evidence was basically that money was not paid
into Nedbank’s
debtors deposit account when it was supposed to have been paid in
terms of the agreement.
[39]
Regarding the Cashbuild
account and the alleged inflation of the invoices, Mr Kabue’s
evidence was that sometime in December
2012 the auditors reported to
Nedbank Debtors Management (NDM) how Fixtrade conducted its account.
There was no written report
from the auditors at that stage but
Nedbank received information and held a meeting with Mr Azar who
tried to call Cashbuild and
also blamed their system for the
inflation of the invoices. Following that meeting, Mr Azar attended
another meeting with Mr Shalala
in February 2013 before the letter of
cancellation was sent out. At that meeting Nedbank’s
representatives showed Messrs
Azar and Shalala a statement that
indicated that Cashbuild still owed Fixtrade money and then requested
Mr Shalala to pull out
Fixtrade’ statement from the computer at
their office and show it to them. Mr Shalala came back and confirmed
that on their
side Cashbuild had paid its account in full and he
started blaming their bookkeeper, Ms Sharneck.
[40]
This was crucial evidence
which should have been challenged however, it was not.
[41]
Having
regard to the proposed amendment we do not agree that the appellant
is trying to bring in new causes of action and/or a new
case which
requires new evidence to be led in answer to the allegations as
alluded to by the respondents. The proposed amendment
is, in our
view, in line with the evidence that was presented in the trial
court
[6]
.
We also do not agree that because Mr Azar did not testify, the
evidence was not fully canvassed and ventilated. Mr Kabue
was
cross-examined at length on the evidence.
[42]
The
argument that the amendment comes at a very late stage of the
proceedings and should therefore be refused is without merit in
that
delay on its own is not necessarily a ground for refusal of an
amendment
[7]
.
[43]
The contention that the
proposed amendment would be prejudicial to the respondents in that Mr
Azar is no longer available due to
his death to dispute the
allegations is, in our view, also without merit. Mr Azar was present
throughout the trial. Evidence was
presented at the trial which
implicated him and Mr Shalala. Mr Kabue was told that Mr Azar would
testify and dispute his evidence
that the first meeting he attended
with Nedbank’s representatives was on 19 February 2013 when he
was given a letter of 15
February 2013. He denied the allegations but
Mr Azar elected not to testify to gainsay his evidence.
[44]
The respondents also
contended that there are no prospects of success in the action even
if the amendment is granted and that the
granting of the amendment
will be a waste of time. For the reasons that will follow in the
judgment, we are of the view that there
are prospects of success in
the action and we find merit in the application for leave to amend.
This application should, under
the circumstances, succeed.
The merits
[45]
We agree that
when Mr Kabue testified he mentioned various other alleged breaches
of the agreement which were not pleaded.
As discussed above the
issue of Cashbuild is but one of the facts that established that
Fixtrade ceased to make any payments due
in terms of the agreement
promptly on due date or at all.
[46]
The
court
a quo
took the view that because Kabue testified that prior to February
2013 there were no arrears on Fixtrade’s accounts, the
appellant did not prove that there was money owing on the accounts.
This conclusion loses sight of Kabue’s evidence that
Nedbank’s
employees were alerted of the problems in December 2012 by the
auditors. They could not do anything because
Fixtrade was
closing for the festive season. They managed to meet with Mr
Azar and made him aware of their concerns and also
requested the
auditors to visit Fixtrade’s offices again in order to get the
latest information and then prepare a written
report. Mr Kabue was
not aware of any breaches of the agreement until the auditors
reported to him. The concerns raised related
to the periods of
December 2012 and January 2013. It cannot therefore be correct
to conclude that prior to February 2013
and at the time of the
cancellation of the agreement, Fixtrade did not owe any money to the
appellant.
[47]
It can also not be correct
to conclude that Mr Kabue’s evidence relating to the audit
report was hearsay. Mr Kabue testified
that after it was reported
that there were some concerns in the conduct of Fixtrade of Nedbank’s
account, he went with his
team from NDM to Fixtrade’s offices
after meeting with Mr Azar in December 2012. They met with
Messrs Azar and Shalala
and verified the information after comparing
their records to that of Fixtrade. Mr Shalala confirmed that the
Cashbuild account
was paid in full from their side. In Nedbank’s
books, Fixtrade reflected it as still owing. This according to his
evidence
meant that Fixtrade was paid by Cashbuild in full but the
money was not paid into Nedbank Debtors Deposit account as per the
agreement.
[48]
In the face of
this evidence which was not contested, the
court
a quo
held that no evidence was presented to the effect that the invoices
owed by Cashbuild existed.
[49]
The record shows that the
auditor’s report was introduced as evidence without objection.
It formed part of the exhibit bundle
that was used in the trial.
Nedbank submitted that at the pre-trial conference held on 3 March
2016, the parties
inter
alia
agreed that all
documents contained in the exhibit bundle are what they purport to be
(without there being any admission of the
correctness of the
allegations therein) and need not be formally proved. We
therefore conclude that the
court
a quo
erred in finding that Mr Kabue’s evidence flowing from the
auditor’s report regarding the various breaches of the
agreement allegedly committed by Fixtrade and which resulted in the
termination of the agreement was hearsay and therefore inadmissible.
[50]
We further do not agree
that there are no defined time periods in the agreement within which
Fixtrade was to make payment. Clause
18.2.6 of the agreement provides
that the seller shall be in default if it fails to pay money received
by it in respect of the
debts sold to Nedbank within 24 hours of
receipt thereof and this was the evidence of Mr Kabue which was not
contested.
[51]
We agree that both Mr
Kabue and Ms Warricker were not certain as to when the Standard Bank
account was opened, whether it was before
or after the cancellation
of the agreement. What is important is that the evidence that
Fixtrade opened a Standard Bank account
wherein the debtors’
monies which were due to Nedbank were deposited without Nedbank’s
knowledge is prima evidence
that Fixtrade had breached the agreement.
[52]
The evidence that Fixtrade
admitted that the invoices were inflated and that Nedbank was
defrauded was also not contested. The fact
that its bookkeeper was
blamed and even disciplined for what she had allegedly done, does not
in our view assist Fixtrade or their
directors’ cases. It is
immaterial.
[53]
This evidence together
with the common cause fact that Fixtrade has been liquidated clearly
establish that Fixtrade breached the
agreement in one way or another.
Whether the breach committed
entitled Nedbank to cancel the agreement
[54]
Clause 18.3 of the
agreement provides that if a party is in default, the other party
(“
the aggrieved
party
”) shall be
entitled, in addition to all other remedies at law, to forthwith
cancel, or to uphold, the agreement.
[55]
Nedbank submitted that as
a result of the breaches committed by Fixtrade it was entitled to
“
forthwith
”
cancel the agreement. No provision is made in the agreement
that it should first have discussed with Fixtrade or its
directors
before cancellation nor are there any special formalities to effect
such cancellation. The facts that Fixtrade defrauded
it and presented
it with inflated invoices and that its bookkeeper was disciplined for
the misconduct would have entitled it to
terminate the agreement but
were only discovered subsequent to the cancellation.
[56]
It asserts that even if we
find that it relied on the wrong reason for cancellation in its
pleadings (which is denied); cancellation
for a wrong reason does not
invalidate the cancellation provided that it can show that valid
reasons existed at the time of cancellation.
[57]
The respondents submitted
that Nedbank was not entitled to terminate the contract unilaterally
without notice. It should have
acted in terms of clause 17.5 of
the agreement.
[58]
Clause 17.5 provides:
“
Upon the occurrence of
one or more of the following events Nedbank will be entitled to
demand from the seller to repurchase all
the debts or any of the
debts at the repurchase price and the seller agrees to repurchase
such debts at the repurchase price:
17.5.1 the seller being in
default or committing any breach of this agreement;
17.5.2 …
17.5.3 the seller’s
insolvency or the insolvency of any guarantor or indemnifier in
respect of the seller’s liability
or obligations to Nedbank
however arising;
17.5.4 the giving of Notice by
Nedbank to the seller to terminate this agreement;
17.5.5
the seller terminates the agreement in accordance with the
agreement.
”
[59]
It is common cause from
the evidence that Nedbank sent a notice of cancellation of the
agreement dated 15 February 2013 to the respondents
and that they
acknowledged receipt thereof. It is therefore not correct that the
agreement was terminated without notice.
According to the
evidence Nedbank did not invoke the provisions of clause 17.5.
It relied on the provisions of clause 18
of the agreement. It opted
not to demand the repurchase of all the debts it bought from
Fixtrade. Furthermore, this issue was not
pleaded.
[60]
We
agree that the various breaches which were not pleaded, were provided
as the reasons for the cancellation of the agreement.
In
Datacolour
International (Pty) Ltd v Intamarket (Pty Ltd
[8]
it was held that the innocent party to a breach of contract
justifying cancellation, exercises its rights to cancel the contract
(a) by words or conduct manifesting a clear election to do so; (b)
which is communicated to the guilty party. Except where the
contract
itself otherwise provides, no formalities are prescribed for either
requirement. The innocent party need not identify
the breach or the
grounds on which he relies for cancellation. It is settled law
that the innocent party, having purported
to cancel on inadequate
grounds, may afterwards rely on any adequate ground which existed but
was not discovered at the time.
[61]
The evidence that Fixtrade
defrauded Nedbank and presented it with inflated invoices would have
entitled Nedbank to terminate the
agreement if it was discovered
prior to the cancellation of the agreement. There is no
evidence to counter the fact that
that evidence did not exist at the
time of the cancellation of the agreement. Nedbank may therefore rely
on that evidence to cancel
the agreement.
[62]
The fact that Fixtrade was
liquidated also constitutes a breach of the agreement that entitles
Nedbank to cancel the agreement.
We find that Nedbank was therefore
entitled to cancel the agreement.
The certificate of balance
[63]
As proof of its claim
Nedbank’s counsel, during trial handed up a certificate of
balance from the bar. The certificate
was disputed.
Nedbank submitted that the certificate meets the requirements of the
provisions of the agreement, the suretyship,
the facility letter and
the mortgage bond, and should be regarded as
prima
facie
evidence.
[64]
Relying
on the decision in
Trust
Bank v Senekal
[9]
,
Nedbank submitted that it does not merely cast an
onus
to rebut on the respondents but an onus in the proper sense i.e. that
the respondents could only neutralise the evidentiary status
of the
certificate of balance, on the balance of probabilities that the
contents thereof is wrong. It is the certificate of balance
which
provides
prima
facie
proof of the respondents’ liability. He argued that in
Rossouw
v Firstrand Bank
[10]
it was held that a certificate of balance may be handed up from the
bar.
[65]
Clause 18.5 of the
agreement provides that a certificate signed by any director or
manager of Nedbank, shall be
prima
facie
proof of the
amount owing to Nedbank by the seller as at the date of such
certificate and of the fact that as at that date, the
amount
concerned is due and payable, in respect of any amounts howsoever
arising or due under the agreement.
[66]
The respondents claimed
that after the cancellation of the agreement Nedbank received payment
from the debtors and the amounts thereof
were not deducted from the
total amount appearing on the certificate of balance. Ms
Warricker testified in her evidence
in chief that two debtors,
Ferreira’s Honeydew and Mookgohong Electrical Hardware paid
their debts to Nedbank directly and
the amount thereof was not
accounted for in the certificate of balance produced by Nedbank to
prove its claim. She could
not sustain that evidence under
cross-examination. Her evidence proved that the payment made by
Mookgohong Electrical Hardware
was accounted for in the certificate
of balance and she could not produce proof that Ferreira’s
Honeydew made payment to
Nedbank as testified in her
evidence-in-chief. The respondents could therefore not disprove
the certificate of balance or
prove that its contents were wrong. It
therefore became conclusive proof that the amount reflected therein
was due and owing to
Nedbank.
[67]
In our view the trial
court misdirected itself by dismissing Nedbank’s claim B
against the respondents with costs. Accordingly,
the appeal should
therefore succeed.
[68]
In the result the
following order is made:
1.
The application for leave
to amend the plaintiff’s particulars of claim in respect of
paragraph 11 thereof is granted.
2.
The appellant is to pay
the costs of the application.
3.
The appeal is upheld.
4.
The order of the
court
a quo
dismissing the plaintiff’s claim B with costs is set aside and
substituted with the following order:
4.1
The defendants are to pay
the sum of R5 536 068,14 to the plaintiff jointly and severally, the
one paying the other to be absolved;
4.2 Interest on the said sum
at the plaintiff’s prime lending rate (currently 8,5%) as from
time to time, plus 6%, thus 14%
per annum, calculated from 4 April
2013 to date of final payment, 60
th
days inclusive;
5. The respondents
are to pay the costs of the appeal which include the costs of the
application for leave to appeal
in this Court and the SCA and the
costs of the action on a scale as between attorney and client jointly
and severally, the one
paying the other to be absolved.
M J TEFFO
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree:
W HUGHES
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
I agree:
C
COLLIS
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
Appearances
For the
appellant
J Killian
Instructed
by
Baloyi Swart & Associates Inc
For the second and third
respondent
R Zimmerman
Instructed
by
Taitz & Skikne Attorneys
c/o Mark W Nixon Attorneys
Heard
on
2 December 2020
Handed down on
31
May 2021
[1]
Trans-Drakensberg
Bank Ltd (under judicial management) v Combined Engineering (Pty)
Ltd
1967
(3) SA 632
(N) reviewed the older authorities in detail. See also
Kasper
v André Kemp Boerdery CC
2012 (3) SA 20 (WCC)
[2]
Imperial
Bank Limited v Hendrick Barnard NO
(349/12)
[2013] ZASCA 42
(28 March 2013) at [8]
[3]
Caxton
Ltd v Reeva Forman (Pty) Ltd Ciba-Gergy (Pty) Ltd v Lushof Farms
(Pty) Ltd
2002 (2) SA 447 (SCA) 462-463
[4]
British
Diesels Ltd v Jeram and Sons
1958 (3) SA 605
NOP at 606
[5]
Desai
v NBS Bank Ltd
1998 (3) SA 245
(NPD)
[6]
British
Diesels Ltd v Jeram and Sons supra
[7]
Water
Renovation (Pty) Ltd v Goldfields of SA Ltd
1994 (2) SA 588 (A) 605H
[8]
[2000] ZASCA 82
;
2001
(2) SA 284
(SCA) at 299E-G
[9]
Trust
Bank v Senekal
1977 (2) SA 587
(WLD) at 593
[10]
Rossouw
v Firstrand Bank
2010 (6) SA 439
(SCA) at 454A-C