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[2020] ZAGPPHC 24
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Fine Asset Investment 393 CC t/a Kalahari Hydraulics v Rudolf Jansen t/a Mofencha Consulting (65466/2015) [2020] ZAGPPHC 24 (25 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES/
NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
No
Case No. 65466/2015
25/2/2020
In
the matter between:
FINE ASSET INVESTMENT 393 CC T/A
KALAHARI
HYDRAULICS
PLAINTIFF
And
RUDOLF
JANSEN T/A MOFENCHA CONSULTING
DEFENDANT
JUDGMENT
MILLAR,
A J
1.
This
is a dispute relating to the terms of an oral agreement for goods
sold and delivered by the plaintiff to the defendant. The
parties
were agreed on all the terms of the agreement, save that in respect
of when payment was to be made.
2.
The
order of the goods, delivery and that the defendant has not made
payment were common cause. The plaintiff’s case was that
it had
been agreed that payment was to be made within 60 days of invoice.
The defendant’s pleaded case was that it had been
agreed that
payment would only be made to the plaintiff once the defendant’s
customer had paid him.
3.
Only
2 witnesses testified in the case, Mr. Anthony West testified for the
plaintiff and the defendant himself testified.
4.
Mr.
West testified that he had known the defendant for some years. His
business, the plaintiff, and the defendant had started to
work
together in 2012. The defendant had sourced goods from him and had
then on sold those goods to defendant’s client. The
parties had
communicated with each other by telephone, what’s app – a
social media messaging platform and by email.
Orders were placed and
then paid for within 60 days of delivery of either the goods or the
invoice, whichever occurred later. The
plaintiff was aware that the
defendant’s client, a large steel manufacturer in the Witbank
area, had experienced difficulty
with payment on one previous
occasion and had on request extended the payment to 90 days.
5.
The
goods to which this dispute relate are 70 “delimon blocks”,
an item used in the lubrication of heavy machinery.
The goods were
ordered during October 2014 and because they were imported only
arrived and were delivered to the defendant on 22
December 2014.There
were two orders, one for 20 blocks and one for 50 blocks, 70 in
total.
6.
Mr.
West testified that he had personally delivered all 70 blocks to the
defendant on 22 December 2014 and that subsequently when
no payment
was received within the 60 days or thereafter, he had taken steps on
behalf of the plaintiff to recover payment.
7.
The
defendant testified that the “delimon blocks” had been
ordered in two batches – a first batch of 20 which
was to be
delivered by 22 December 2014 and a second batch of 50 which was to
be delivered by 15 January 2015. The orders were
for his client, a
large steel manufacturer. The orders were placed in writing by the
client and specified the bill of quantities,
price and delivery date.
8.
He
testified that immediately after the placing of the orders he had
been informed in a telephone call by an employee of his client
in the
procurement department that the orders were not to be delivered in 2
batches as ordered but rather in 3 batches and that
payment would
follow within 90 days of delivery of each of the batches. He said he
had communicated this to Mr. West telephonically
and had informed him
that delivery was to take place in December 2014, January 2015 and
February 2015.
9.
The
defendant testified that on 22 December 2014 the plaintiff had in
contravention of the agreement between the parties delivered
all 70
blocks to him instead of the agreed 20. He testified that the father
of Mr. West had been the one to deliver the blocks
to him and that he
had immediately telephoned Mr. West and informed him that he was only
supposed to deliver 20. Mr. West had then
asked him to deliver all 70
to his customer and he had then called his customer and been informed
that the balance could be delivered
but that this was at the risk of
the plaintiff.
10.
He
had then called Mr. West back and informed him of this and that he
would only be paid when the defendant was paid – Mr.
West then
said to him that he was not concerned as the “delimon blocks”
could be sold to another customer, also a steel
manufacturer in the
Witbank area, but in any event he was prepared to take the risk and
told the defendant to deliver all the blocks
to his customer. T
11.
he
defendant testified that both his wife and mother were present when
Mr. West’s father had made the delivery and also when
he had
telephoned his client and Mr. West. He testified that all the
discussions relating to the variation of the order from 2
batches to
3 and the agreement with Mr. West were verbal and these were never
confirmed in any way by either his client, himself
or Mr. West.
12.
The
blocks were all delivered. On 11 January 2015 the defendant was
called to his client for a meeting and informed that no further
payments would be made due to its financial position. It was
subsequently placed in business rescue in April 2015.
13.
During
his evidence, the defendant admitted liability for the payment of 20
blocks, the cost of which was R166 896,00 and said he
had already
paid for them. He did this on the basis that the order for delivery
on 22 December 2014 had been for 20 blocks. He
disavowed liability
for the remaining 50 on the basis that the plaintiff had assumed the
risk in respect of these as they were
only due for delivery on 15
January 2015.
14.
This
admission was contradictory of a letter written by the defendant’s
attorney shortly before the issue of summons in which
liability for
the entire order of 70 blocks had been accepted and also the plea
subsequently filed, in which liability for the
70 blocks had been
denied. The defendant was unable to proffer any explanation for the
difference between the contents of the letter
and the plea and in
regard to the failure to disclose his admission of liability for the
20 blocks or his alleged payment. He was
asked why he had not
admitted this sooner and furnished proof of payment and said that he
had not raised it with his attorneys
as it was not relevant to what
they had been discussing.
15.
The
versions presented by the parties are mutually destructive of one
another.
16.
In
Stellenbosch Farmers’ Winery Group Ltd v Martell and Others
[1]
it was held in regard to mutually destructive versions:
“
To
come to a conclusion on disputed issues a court must make findings on
(a) the credibility of the various factual witnesses; (b)
their
reliability; and (c) the probabilities.”
17.
Insofar
as the version of Mr. West is concerned, it is consistent with the
prior terms upon which the parties contracted with each
other. The
version of the defendant is that this particular transaction deviated
from what had usually been agreed. The defendant
despite testifying
that that there were third parties who could corroborate his version,
both in respect of who delivered the blocks
but also as to the
telephone conversations with both his client and Mr. West that day,
did not call any witnesses.
18.
It
was placed on record from the bar, at the commencement of the trial,
that the representative of the defendant’s client
was in
hospital in the intensive care unit and could not testify, however
the defendant testified that both his wife and mother
were
available
[2]
.
There was no explanation given for the failure to call either of them
as witnesses.
19.
It
his highly improbable that the defendant’s customer, a large
corporation would place orders in writing and then immediately
thereafter vary those orders verbally, ostensibly for its benefit,
without confirming this in writing. It is furthermore highly
improbable that Mr. West, upon being informed that delivery of 50
blocks was going to be at his sole risk, when he need not have
taken
any risk at all, would have assumed such risk solely and that the
defendant who on his own version would bear no risk would
not have
recorded this in writing
[3]
.
20.
Mr.
West gave his evidence in a clear, cogent and forthright manner. He
answered all questions put to him and when necessary made
concessions. The same cannot be said of the defendant. His admission
in evidence for a part of the amount claimed only, when this
was at
odds with both the letter from his attorneys and the plea and then
the failure to give any explanation for this casts a
long shadow over
his reliability. It suffices to state that he was an unsatisfactory
witness and any evidence given by him can
only be accepted when
corroborated by that given by Mr. West.
21.
The
defendant’s version that Mr. Wests’ father delivered the
blocks and that the telephone call was made to him in the
presence of
others is not corroborated but in any event, in light of the
admission in evidence that he was liable for a portion
of the amount
claimed, which he had paid, together with the contradictory letter
from his attorney in which he admitted liability
for the full amount
and the plea in which he denied liability for the full amount, his
versions are mutually contradictory
and so improbable that I
find them all to be untrue.
22.
I
find on the probabilities that Mr. West indeed delivered the blocks
to the defendant on 22 December 2014 personally and that there
was no
discussion about a variation of the agreed term that payment would be
made within 60 days.
23.
In
the circumstances it is ordered:
23.1
The
defendant is to pay to the plaintiff the sum of R503 196,00;
23.2
The
defendant is ordered to pay to the plaintiff interest on the amount
of R503 196,00 from 8 September 2015 to date of payment
at the rate
of 9,75% per annum;
23.3
The
defendant is ordered to pay the plaintiff’s costs of suit.
A
MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
20 – 21 FEBRUARY 2020
JUDGMENT
DELIVERED ON:
25 FEBRUARY 2020
COUNSEL
FOR THE PLAINTIFF:
ATT. N ESTERHUYSE
INSTRUCTED
BY:
DU PLESSIS VAN DER WESTHUIZEN INC.
REFERENCE:
C
COETZEE
COUNSEL
FOR THE DEFENDANT:
ADV L PRETORIUS
INSTRUCTED
BY:
HARVEY NORTJE WAGNER & MOTIMELE INC.
REFERENCE:
T
KARTOUDES
[1]
2003
(1) SA 11
(SCA) at 14I-J
[2]
Elgin
Fireclays Limited v Webb 1947 ($) SA 744 (A) at 744A – “It
is true that if a party fails to place the evidence
of a witness,
who is available and able to elucidate the facts, before the trial
Court this failure leads naturally to the inference
that he fears
that such evidence will expose facts unfavourable to him.”
[3]
Stellenbosch
Farmers Winery supra at 13C – “
in
business the failure to confirm an event promptly and on paper can
be fatal.”