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[2019] ZALMPPHC 27
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Galactic Auto (Pty) Ltd v Venter (4052/2017) [2019] ZALMPPHC 27 (14 June 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE
NO: 4052/2017
14/6/2019
In
the matter between:
GALACTIC
AUTO (PTY) LTD
PLAINTIFF
and
ANDRE
VENTER
DEFENDANT
JUDGMENT
MAKGOBA
JP
[1]
The
Plaintiff, a motor dealer carrying on business as such in Polokwane,
instituted an action against the Defendant claiming payment
of the
sum of R 379 341.16 being in respect of the purchase price of a motor
vehicle sold and delivered by the Plaintiff to the
Defendant. This
action started as an urgent application in terms whereby the
Plaintiff as the Applicant prayed for an order against
the Defendant
as the Respondent for the return of the motor vehicle delivered to
the Defendant on the 13 May 2017 on the basis
that the Defendant had
failed to pay the purchase price but continued to possess and use the
motor vehicle concerned.
[2]
The
urgent application was opposed and at the hearing of the application
a dispute of fact arose resulting in the matter being referred
for
trial in terms of Rule 6(9) of the Uniform Rules of Court.
[3]
The
Defendant has raised a defence of estoppel and in the alternative
instituted a counterclaim for payment of an amount of R 365
720.48
based on alleged misrepresentation by the Plaintiff in that the
Plaintiff, through its representatives, Pulane Zwane and
Jaques
Swart, made a misrepresentation to the Defendant which was false and
caused the Defendant to believe that the purchase price
was paid to
their bank account and received by them when this was not the case.
The Plaintiffs contention on this aspect is that
the risk of the
interception and paying the purchase price money into the wrong bank
account is on the client (the Defendant in
this instance) who has the
obligation to ensure that his/ her emails and computer are not
corrupted and that he/ she is paying
the money into the correct bank
account. Plaintiff avers that it is not part of its policy and
procedure that after sending the
correct banking details to the
client from secure computers and e-mails to thereafter check whether
all the clients have paid into
the correct bank account. That is the
clients' own responsibility.
Plaintiff's case
[4]
Ms
Pulane Zwane, a sales executive of the Plaintiff Ford dealership in
Polokwane received a phone call from the Defendant on the
10 May
2017. The Defendant enquired from her whether they had a Ford Ranger
XL single cab 4 x 4 pickup in stock as he wanted to
purchase one
cash. He also wanted certain extras to be done in respect of the
vehicle. Pulane confirmed the availability of the
vehicle and that
she would prepare a quotation for him and obtained the Defendant's
e-mail address. Shortly thereafter Pulane sent
the quotation to the
Defendant using her e-mail address to wit,
Sales1@galacticauto.co.za.
She also phoned the Defendant to enquire whether he had received the
quotation which he confirmed to her. Shortly thereafter the
Defendant
phoned her and asked her whether she could also include rubberising
in the quotation which she confirmed she would do.
She then sent the
Defendant another quotation which included the rubberising. She again
made use of the e-mail address,
Sales1@galacticauto.co.za
to send the second quotation. She then phoned the Defendant to
enquire whether he had received the said quotation which he confirmed
to her.
[5]
The
next day, on 11 May 2017 the Defendant phoned Pulane to obtain
Plaintiff's banking details to enable him to effect payment of
the
purchase price by way of an electronic transfer (EFT). She then sent
the Plaintiff's
proforma
banking
details to the Defendant per e-mail address
Sales1@galacticauto.co.za
.
[6]
Pulane
testified further that after she had sent the
pro
forma
document with the Plaintiff's
correct banking details to the Defendant the latter phoned her and
asked whether she had received
proof of payment which he had sent
her. She said no, but she would check again while the Defendant was
holding on. She then confirmed
that she had not received any proof of
payment and asked him:
Are you sure
you sent it to the correct E-mail address which is
Sales1@galacticauto.co.za?
He said yes he did but he would
resent it.
[7]
Shortly
thereafter she received the proof of payment from the Defendant. She
phoned him and informed him as such and that she would
start
preparing the vehicle. The Defendant told her that he needed the
vehicle to be delivered to him and registered on his name
the next
day as he had to start with a project at a mine near Thabazimbi on
Monday 15 May 2017 and that he would not be allowed
access to the
mine without number plates on the vehicle. She assured him that she
would do her best to ensure that the vehicle
is registered and
delivered to him.
[8]
On
Saturday 13 May 2017 Pulane and the Defendant inspected the vehicle
together whereafter they sat down. She handed the Offer to
Purchase
(OTP) to him and explained the warranty and service plan to him. She
then asked him to go through it whereafter he signed
it and she
delivered the vehicle to him.
[9]
Pulane
testified that at the time she delivered the vehicle to the Defendant
she knew that the money would not yet show in their
bank account as
the Defendant had only made payment on Thursday the 11 May 2017. She
further testified that on the strength of
the proof of payment sent
to her and the fact that the Defendant wanted the vehicle urgently
for a project which would start on
Monday 15 May 2017 at a mine near
Thabazimbi her sales manager gave her the necessary authority to
start preparing the vehicle
for delivery.
[10]
Pulane testified further that on 24 May 2017 she was informed by her
employer that the money (purchase
price) was not paid into the
Plaintiff's bank account. She was suspended from her duties pending
investigation. Her cellphone and
computer where confiscated by the
employer. After 2 to 3 days she returned to work and was informed
that they have established
that she did sent the correct banking
details to the Defendant and that her e-mails were not compromised.
She concluded her testimony
by stating that since she started to
work· as a sales executive at Galactic Auto on 16 September
2016 she has used the same
e-mail address, to wit
sales1@galacticauto.co.za.
[11]
Pulane
Zwane gave evidence openly and without any hesitation or confusion.
She answered questions under cross-examination perfectly
and without
any contradictions. It was put to her that she informed the Defendant
upon receipt of the proof of payment that she
was satisfied that he
had paid them and that she would therefore proceed to prepare the
vehicle for delivery. She denied that and
said that there was a
difference between receiving the proof of payment and the money
showing in their bank account and that according
to her a client has
only paid once the money is in the account.
[12]
Under cross-examination she openly and
honestly made the following concessions:
12.1 She did not
verify the account number on the proof of payment which was sent to
her by the Defendant, nor
the branch code.
12.2.
She
only looked on the proof of payment for the beneficiary's name, being
GalacticAuto, the bank's name i.e Standard Bank, and that
the amount
correlates the purchase price.
12.3.
It
would have been very easy for her to verify the bank account number
reflected on the proof of payment as she was in possession
of the
proof of payment sent to her by the Defendant. However, she explained
that it was the sales manager's responsibility to
verify the bank
account details on the proof of payment and the bank particulars
which she had sent to the Defendant.
11.4. She is aware
that one must be wary of fraud transactions and fraudsters especially
with regards to cash transactions
over Fridays and weekends.
[13]
Pulane's
honesty makes her a reliable witness. She impressed me as such and I
accordingly accept her version of her dealings with
the Defendant as
the truth of what happened.
[14]
The
second witness for the Plaintiff is Mr Jaques Swart, the sales
manager at Plaintiffs motor dealership as at May 2017. Swart
confirmed that he authorised the preparation and delivery of the
vehicle to the Defendant after he was shown the proof of payment
by
Pulane Zwane on 11 May 2017. He expected that the payment of the
purchase price would reflect on the Plaintiff's bank account
after 3
to 5 days.
[15]
On
24 May 2017 Swart noticed that the amount in respect of the purchase
price was not taken off his debtors' list. He then discovered
that
the amount was not reflected in the Plaintiff's bank account. Upon
checking the proof of payment he noticed that the purchase
price was
deposited in a wrong bank account number. He phoned the Defendant
seeking clarification and the latter responded that
that was the
information he obtained from Pulane. He informed the Defendant that
the money was paid into a wrong account.
[16]
According
to Swart internal investigations were conducted and nothing wrong was
found on the Plaintiff's computer system. Pulane's
correct e-mail
address was found to have been used when sending all documents to the
Defendant. After further investigations it
was found that Pulane had
sent the correct banking details to the Defendant.
[17]
Swart
testified further that on the strength of the proof of payment he
believed that the Defendant had paid the Plaintiff but because
it was
a transfer between two banks (First National Bank and Standard Bank)
he knew that it would take 3 to 5 days to process and
that payment
would not show in Plaintiff's bank account by Saturday the 13 May
2017. He went further to state that on the strength
of the proof of
payment, his belief was that the Defendant has paid the Plaintiff,
the fact that the Defendant needed the vehicle
before Monday the 15
May 2017 otherwise he could have lost the contract, the fact that the
Plaintiff had previous dealing with
the Defendant and that he knew
about the Defendant and his business, Venter Drilling, they decided
to deliver the vehicle to the
Defendant “out of goodwill".
[18]
Swart
confirmed the evidence of Pulane that it was not expected of Pulane
to check the bank account number on the proof of payment.
He has also
never before checked their bank account number on the proof of
payment because it is the required procedure that all
employees of
the Plaintiff were only allowed to send the Plaintiff's banking
details to a client by way of a
pro
forma
document in the computer
containing the correct banking details to ensure from their side that
they provide the client with the
correct banking details.
[19]
Both
Swart and Pulane testified that no one in the employ of the Plaintiff
used
sales@galaticauto.co.za
as an e-mail address. They corroborate each other that Pulane's
e-mail address is
sales1@galacticauto.co.za.
Swart conceded under
cross-examination that upon receipt of the proof of payment they
proceeded to register the vehicle into the
name of the Defendant. He
conceded further that over weekends one must be wary of fraudsters
and hackers, especially with cash
transaction. As a witness Swart
impressed me as an honest and reliable witness. I have no reason to
reject his version.
[20] The
third and last witness for the Plaintiff was Mr Willem Pieter
Taljard.
He is the IT Manager of the BB
Group of which the Plaintiff forms part. On the 24 May 2017 he was
called upon and informed about
what had transpired regarding·
the purported payment of the purchase price in this transaction. He
suggested that they contact
the Defendant and ask him to send to them
the e-mail from which the Defendant had received fraudulent bank
details to enable him
to try and trace it. In response the Defendant
indicated to them that he had already sought legal advice and that
they should speak
to his advocate.
[21]
During the course of his investigation
Taljaard took Pulane's computer and checked all her e-mails from May
2017 and retrieved all
the e-mails sent by her to the Defendant. He
established that Pulane had in fact sent their correct
pro
forma
banking details to the
Defendant. He further established that she was using
sales1@galacticauto.co.za
as her e-mail address. Taljaard testified further that the Plaintiff
did not have an e-mail address as
sales@galaticauto.co.za.
He could not find any malware or viruses on the computers and
everything was in order. He stated further that the Plaintiff is
using the number one antivirus system in the world.
[22]
Taljaard
concluded by stating that the e-mail on page 5 of the trial bundle
with the attachment on page 6 of the same bundle (which
I shall for
the sake of convenience refer to them as fraudulent documents) which
the Defendant received from e-mail address
sales@galaticauto.co.za
on 11 May 2017 was not sent from Pulane's computer or the Plaintiff's
network.
[23]
Cross-examination
of this witness did not bring out anything new or contradictory. The
evidence of Taljaard remains unchallenged
and therefore wholly
acceptable.
[24]
Before
setting out the evidence of the Defendant and his witness, I find it
appropriate to put on record certain facts that are
common cause in
this matter. The following facts are common cause or not seriously
disputed:
24.1.
On
11 May 2017 the Defendant phoned Pulane to obtain the Plaintiff's
banking details to enable him to effect payment of the purchase
price
by way of EFT. Pulane sent their pro forma banking details to him.
24.2.
Unbeknown
to both of them their e-mails had been changed by the hacker to
sales@galaticauto.co.za.
The bank account number and branch code had been changed.
24.3.
The
Defendant upon receipt of the banking details made payment into the
fraudulent account being Standard Bank Account Number [….]
Branch Code 051001 instead of the Plaintiff’s Standard Bank
Account Number [….] Branch Code 052548.
24.4.
The
Defendant had thereafter sent the proof of payment to the "wrong"
e-mail address (created by the hackers) to wit
sales@galaticauto.co.za
. The e-mail address of Pulane since she started her employment with
the Plaintiff on 16 September 2016 until today is
sales1@galacticauto.co.za.
24.5.
The
Defendant shortly thereafter phoned Pulane to enquire from her
whether she had received proof of payment which he had sent her.
She
informed him that she had not received the proof of payment which he
had sent her. She gave him her e-mail address to wit
sales1@galacticauto.co.za.
He then sent the proof of payment to her at this email address.
24.6.
Upon
receipt of proof of payment she phoned him and informed him as such.
After she had received the proof of payment on 11 May
2017 she
started the process to have the vehicle registered on his name and to
have the extras done.
24.7.
On
13 May 2017 the Defendant signed off the offer to purchase (OTP)
whereafter the vehicle was delivered to him.
24.8.
On
22 May 2017 the Defendant acquired the services of an IT and internet
specialist, a certain Mr Pierre Smith who compiled a technical
report
and according to the Defendant a full assessment of his email
addresses was conducted and there was nothing out of order.
[25]
Based on the above common cause facts it
is clear that Plaintiff has delivered the vehicle to the Defendant
but did not receive
payment of the purchase price. On the other hand
the Defendant has benefited in as much as he has received delivery of
the vehicle
and continues to be in possession of same. The question
arises: who bears the risk of any possible hacking of the parties'
computers
and e-mails?
Defendant's
Case
[26]
The
Defendant testified at the trial and called one witness, one Mr Louis
Koekemoer. I shall not repeat the evidence of the Defendant
in so far
as it relates to the facts which are common cause as outlined in
paragraph [24] above. What follows is the version of
the Defendant.
[27]
The
Defendant testified that after he received the e-mail from Pulane
containing the Plaintiff's banking details, he made the necessary
EFT
payment into the bank account with particulars as provided to him by
Pulane. He believed that it was the bank account of the
Plaintiff as
he had emailed the proof of payment to Pulane, who ultimately
confirmed that she had received the proof of payment
which he had
sent. That Pulane confirmed that she was satisfied with the proof of
payment after being asked by the Defendant whether
she was satisfied.
She answered "everything is fine". According to the
Defendant this meant that Pulane was satisfied
that the Plaintiff had
received the payment made by the Defendant. Pulane then said that
they will proceed to fit the extras and
register the vehicle into his
name and that he might collect the vehicle on Saturday the 13 May
2017.
[28]
The
Defendant stated that Pulane represented to him that the money was
paid into the correct account by stating that everything
is fine
after perusing the proof of payment. He stated further that Pulane
failed to notify him on the 13 May 2017 when the vehicle
was
delivered to him that the money has not been reflected in the bank
account of the Plaintiff. Furthermore that the money was
paid into
the wrong bank account and that the account number does not
correspond with the account number of the Plaintiff.
[29]
The
Defendant testified further that as a result of the representation
made to him that the money was paid to the Plaintiff and
received, he
bona fide
believed
that the money was paid to the Plaintiff and received in their
account. He avers that on the strength of this belief he
failed to
reverse the transaction before it reflected in the account of an
unknown third party, alternatively, failed to reverse
the transaction
before the unknown third party was able to withdraw the funds. He
avers further that had he known that it was the
wrong account number,
he could have stopped the payment immediately or could have reversed
the payment immediately.
[30]
The
Defendant stated that due to the representation made by the Plaintiff
as referred to above, he committed an omission to his
detriment as
the money that was paid into the wrong bank account was withdrawn and
was stolen. Consequently, the Defendant prays
that the Plaintiff is
estopped from now claiming that payment was not received, as their
actions constituted a misrepresentation
that has caused the Defendant
to act to his detriment.
The Defendant went further to say
that it was in the exclusive knowledge of the Plaintiff that payment
was made into the wrong account
and that they had a duty to inform
him that the money was paid into the wrong account. Accordingly , it
is the Defendant's view
that the Plaintiff failed to act with
reasonable care when this representation was made, and the
representation was therefore negligent,
alternatively willful.
[31]
Upon being informed by the Plaintiff on
the 24 May 2017 that the purchase price had been paid into a wrong
bank account, the Defendant
approached his bank in an effort to
reverse the transaction. He discovered that a large portion of the
money was withdrawn from
the account and only an amount of R 13
620.68 remained in credit. This amount was paid out to him.
He approached the Police to open a
fraud charge but to date hereof he does not know of the outcome of
the Police investigations.
[32]
The Defendant avers that due to the
negligent/ willful misrepresentation by the Plaintiff, he was only
able to recover the amount
of R 13 620.18 from the wrong account. He
states that he has suffered damages in an amount of R 365 720.48
being the amount of
R 379 341.16 (purchase price) less R 13 620.68
(the amount recovered). Accordingly , the Defendant has filed a
counterclaim for
payment of the alleged damages suffered by him in
the sum of R 365 720.48 plus costs.
[33]
The Defendant did not give a good
impression as a witness. I shall later in this judgment deal with his
credibility as a witness
when I analyse and evaluate the evidence as
a whole. Suffice to say that the Defendant could not answer questions
directly under
cross-examination but went on to give very longwinded
answers and explanations that were not called for. More often than
not he
was unable to answer questions briefly as requested. On
several occasions the Court had to intervene and request him to
listen
to questions carefully and avoid giving unnecessary
explanations.
[34]
The Defendant's witness, Mr Louis
Koekmoer testified that he had worked for the Plaintiff from 2004
until 2014 and again in 2018
for three months. His evidence was
largely undisputed and same is accepted as such.
[35]
He testified that the written sales
executive procedures of the company (Plaintiff) specifically state
that:
35.1.
The
sales person must at all times confirm with the branch accountant
that EFT payments have been cleared before a vehicle can be
delivered
to a prospective client.
35.2.
That
no vehicle may be delivered if all monies have not been paid over to
the Plaintiff and it does not reflect in the bank account
of the
Plaintiff.
35.3.
If
this procedure is not followed the Plaintiff sees it in a serious
light and the sales executive can be fired.
[36]
He testified further that there are no
exceptions to the above rules and that the vehicle may under no
circumstances be delivered
to any client should full payment not have
been made and be reflected in the bank account of the Plaintiff. He
further testified
that the sale executive as well as the sales
manager must verify the account number on any proof of payment which
was received
into the Plaintiff's bank account which also includes
the branch code of the bank. This, according to him, has been the
Plaintiff's
practice throughout since 2004 when he started work at
the Plaintiff and was also the procedure in 2018 when he worked at
the Plaintiff.
[37]
As I have already indicated above, the
evidence of Koekmoer is undisputed. However, in my view this evidence
does not take the Defendant's
case any further as will appear in my
evaluation of the totality of the evidence in this case, in
particular the evidence of the
Defendant.
Estoppel
as a defence
[38]
It is trite that the defence of estoppel
can be raised under the following circumstances:
38.1.
Where
the representer by his words or conduct makes a representation to
another person (the representee) and the latter, believing
the truth
of the representation, acts thereon and would suffer prejudice if the
representer were permitted to deny the truth of
the representation
made by him, the representor may be estopped (precluded) from denying
the truth of his representation
[1]
.
38.2.
The
estoppel assertor must, therefore, establish a misrepresentation
causing him to act thereon and the prejudice suffered as a
result of
such an act if the misrepresentation is not maintained.
38.3.
The
principle of estoppel by representation is based on considerations of
fairness and justice as it is aimed at preventing prejudice
and
injustices. See
MEC for Economic
Affairs, Environment and Tourism, Eastern Cape v Kruizenga and
Another
[2]
.
[39]
The question that arises in this matter
is whether the Plaintiff made any misrepresentation to the Defendant
which led to the Defendant
suffering any prejudice. Is the Defendant
entitled to raise a defence of estoppel in these circumstances where
the Plaintiff claims
payment of the purchase price of a motor vehicle
sold and delivered to the Defendant?
The Plaintiff has not received
payment but the vehicle has been delivered to the Defendant who is
presently in possession thereof
and continues to use same.
Evaluation
of the Evidence
[40]
In the present case the versions of the
Plaintiff and that of the Defendant are incompatible, in particular
on the issue whether
the Plaintiff provided the Defendant with
correct banking details and whether the Defendant utilised the said
banking details to
pay the purchase price through EFT. The onus is on
the Plaintiff to prove that they provided the Defendant with correct
banking
details. On the other hand the onus is on the Defendant to
show that he paid the purchase price into the correct bank account
provided
by the Plaintiff. Furthermore the onus is on the Defendant
to prove the defence of estoppel.
[41]
In order to resolve this impasse, I have
to consider and weigh the probabilities to determine which version is
more probable than
the other. I also have to consider the credibility
and reliability of the various witnesses who testified for the
Plaintiff and
those for the Defendant. The test to be applied in such
a case was enunciated lucidly as follows in
National Employers' General
Insurance v Jagers
:
"It
seems
to me, with
respect, that in any civil
case,
as
in any
criminal
case,
the onus can
ordinarily only be discharged by adducing credible evidence to
support the
case
of the party on
whom the onus
rests.
In
a
civil
case
the onus
is
obviously not
as
heavy
as
it
is
in criminal
cases, but nevertheless where the onus rests on the Plaintiff
as
in the present
case, and where there are two mutually destructive stories, he can
only succeed if he satisfies the Court on
a
preponderance of
probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced
by the Defendant
is
therefore false
or mistaken and falls to be rejected. In deciding whether that
evidence is true or not the Court will weigh up and
test the
Plaintiff's allegations against the general probabilities. The
estimate of the credibility of
a
witness will
therefore be inextricably bound up with
a
consideration of
the probabilities of the
case
and, if the
balance of probabilities favours the Plaintiff, then the Court will
accept his version as being probably true. If however
the
probabilities are evenly balanced in the sense that they do not
favour the Plaintiff's case any more than they do the Defendant's,
the Plaintiff can only succeed if the Court nevertheless believes him
and is satisfied that his evidence
is
true and that the
Defendant's version
is
false.
This view
seems
to me to be in
general accordance with the views expressed by Coetzee J in Koster
KO-operatiewe Landboumaatskappy Bpk v Suid
Afrikaanse Spoorwee
en Hawens (supra) and African Eagle Assurance
Co
Ltd v Gainer
(Supra). I would merely stress however that when in such
circumstances one talks about
a
Plaintiff having
discharged the onus which rested upon him on
a
balance of
probabilities that means that he
was
telling the truth
and that his version was therefore acceptable. It does not seem to me
to be desirable for
a
Court first to
consider the question of the credibility of the witnesses as the
trial Judge did in the present case, and then having
concluded that
enquiry, to consider the probabilities of the case,
as
though the two
aspects constitutes separate fields of enquiry. In fact, as I have
pointed out, it is only where
a
consideration of
the probabilities fails to indicate where the truth probably lies,
that recourse is had to an estimate of relative
credibility apart
from the probabilities”.
[3]
.
[42]
It is trite that when faced with two
mutually exclusive versions, the Court has to resolve the factual
disputes by making findings
on the credibility of the various factual
witnesses, their reliability and the probabilities. The test in such
circumstances is
that the Defendant in this case can only succeed if
he satisfies the Court on a preponderances of probabilities that his
version
is true and accurate and therefore acceptable.
In
Stellenbosch
Farmers; Winery Group Ltd and Another v Martell ET CIE and Others
[4]
it was stated
that:
"On the central issue,
as
to what the
parties actually decided, there are two irreconcilable versions.
So
too on
a
number of
peripheral areas of dispute which may have
a
bearing on the
probabilities. 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's
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 extracurial
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's
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 each of 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."
[43]
The
Defendant herein bears the onus of proof with regard to the defence
of estoppel and must further prove that he made payment
into the
correct banking account of the Plaintiff. The Defendant must further
prove that the version advanced by the Plaintiff
is therefore false
or mistaken and falls to be rejected.
I shall now proceed to weigh up
and test the Defendant’s version against the general
probabilities.
[44]
There
are contradictions and improbabilities in the version of the
Defendant. When it was put to the Defendant in cross-examination
that
he should have verified the account number before doing the
electronic payment which he failed to do, his response was that
there
is no law compelling him to do so. He said this against his own
evidence that he is a computer specialist. On the other hand
it is
the Plaintiff's contention that the risk of interception and / or
paying the money into the wrong bank account is on the
client who
similarly has the obligation to ensure that his or her e-mails and
computer are not corrupted and that he or she is
paying the money
into the correct account.
[45]
When
the Defendant was asked why he obtained the services of an IT and
internet specialist on 22 May 2017 if he only became aware
that he
had been defrauded by hackers when Swart informed him as such on 24
May 2017, he replied that the reason was because the
lady who is
doing his administrations computer was slow and he then asked Mr
Pierre Smith to have a look at his computer system.
Here he
contradicted himself because he gave a different version under oath
in his answering affidavit in the previous motion proceedings
where
he said the following:
"I did
after learning of the scam acquire the services of an IT and internet
specialist, Pierre Smith from Zero One Online,
who conducted
a
full assessment of my e-mail address
and concluded that there was nothing out of order
[5]
".
[46]
The
acquisition of the IT specialist by the Defendant on 22 May 2017
before he could discover the payment into a wrong account on
24 May
2017 can only be described as suspicious. In any event part of the
report of Pierre Smith reads as follows:
"One of the computers was
completely clean of any ma/ware software. The other computer did
detect some ma/ware and unwanted
programs and did delete the files.
From what I could see there weren't any running malware that
could
cause
a
hacker
to access the system although some files were found on the pc that
could make this happen but they were not running...
[6]
”.
It is the Defendant's undisputed
evidence that he himself 1s an IT specialist and as such he was
obliged to keep his computers safe
from any possible hackers.
[47]
The Defendant conceded during
cross-examination that the payment he had made into the fraudulent
bank account can in no way be attributed
to any act or omission on
Pulane's part. Consequently he conceded that the risk lay on himself.
In my view the Defendant realized
that he had paid the money into a
wrong account as a result of hacking before he was made aware of it
by Swart on 24 May 2017 .
That is why upon realizing that his
computer and e-mail could have been compromised he obtained the
services of an IT specialist
on the 22 May 2017 to do an
investigation and to secure his computer system.
[48]
During his evidence in chief as well as
under cross-examination the Defendant denied that he needed the
vehicle urgently and that
same was delivered to him even when his
payment had not yet reflected in the Plaintiff's bank account. He
denied that the vehicle
was delivered to him "out of goodwill"
according to Swart because he needed the vehicle for a mining project
in Thabazimbi.
He contradicts himself on this aspect because in his
answering affidavit in the motion proceedings he stated:
"At the end of April it became
necessary to send on additional pick-up down to the Western Cape,
which I did. Shortly after
this I successfully quoted on
a
project in Thabazimbi, Limpopo. I
urgently required
a
vehicle
to enable me to perform in accordance with that agreement. The
project was to commence on 15 May 2017"
[7]
.
Findings
[49]
I come to a conclusion that the
Defendant is not a credible witness and that his version in so far as
same differs with that of
the Plaintiff is rejected. I accordingly
make the following adverse findings against the Defendant:
49.1.
Pulane
has sent the correct banking details to the Defendant from her
work e-mail to wit
sales1@galacticauto.co.za
.
Pulane's
computer and e-mail were not compromised.
49.2.
The
Defendant failed to verify the banking details with Pulane before he
made payment of the purchase price by way of EFT. The Defendant
merely assumed that the e-mail with banking details attached to it
came from Pulane.
49.3.
The
Defendant had in fact paid the money into a wrong and fraudulent
account. He had been defrauded by hackers who stole his money
after
they have changed the banking details on the said e-mail.
49.4.
If
the Defendant had only verified the banking details with Pulane he
would have prevented his loss. His failure to do so was at
his own
peril.
49.5.
I
accept the Plaintiff's undisputed evidence that they on their part
have policies and procedures in place to ensure that they send
the
correct banking details to clients. That it is not their policy to
check whether each and every client has made payment into
the correct
account. That is the client's responsibility.
Conclusion
[50]
The
Defendant bears the onus of proof in respect of the defence raised by
him as well as in respect of his counterclaim. The Defendant
is
keeping the vehicle to himself and continues using it in his
business. However he has filed a counterclaim for the amount
representing
the purchase price of the vehicle without tendering the
return of the vehicle. This is untenable.
[51]
The
Plaintiff has sold and delivered the motor vehicle to the Defendant.
It is common cause that the Plaintiff has not received
payment of the
purchase price from the Defendant. The Defendant attempted to make
payment but such payment did not reach the Plaintiff.
The principles to be applied in
cases where payment has been intercepted and misappropriated by a
thief have been concisely summarized
by Nienaber J (as he then was)
in
Mannesmann
Demag (Pty) Ltd v Romatex
[8]
thus:
"When
a
debtor tenders
payment by cheque, and the creditor accepts it, the payment remains
conditional and
is
only finalised
once the cheque
is
honoured.
(Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton, and Another
1973 (3) SA 685
(A) at 693; Christie The Law of Contract in South
Africa at 413.) Until that happens a real danger exists that the
cheque may be
misappropriated or mislaid and that someone other than
the payee may, by fraudulent means, convert it into cash or credit,
for
instance, by forging an endorsement or by impersonating the true
payee. That risk is the debtor's since it is the debtor's duty
to
seek out his creditor''.
See also
Stabilpave (Pty)
Limited v South African Revenue Services
2014 (10 SA 350
(SCA).
Order
[52]
I grant the following order:
51.1.
Judgment
in favour of the Plaintiff against the Defendant for payment of the
sum of R 379 341.16;
51.2.
Interest
on the above amount tempore morae;
51.3.
Costs
of suit.
51.4.
The
Defendant's counterclaim is dismissed with costs.
EM
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 27, 28
& 30 May 2019
Judgment
delivered on
:
14 June
2019
For
the Plaintiff
: Ms M C
De Klerk
DDKK Attorneys
For
the Defendant
:
Mr J J
Grabler
Thomas
Grobler Attorneys
[1]
Johaadien v Stanley Porter (Paarl) (Pty) Ltd
1970 (1) SA 394
(Al,
Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty)
Ltd
1976 (1) SA 441
(a) AT 452 A- H.
[2]
2010 (4) SA 122
(SCA) at p 132
[3]
1984 (4) SA 437
(ECO) at 4400 - 441A
[4]
1984 (4) SA 437
(ECO) at 440 D - 441 A
[5]
See paragraph 20.3 of Answering Affidavit
[6]
See Annexure AVG to Answering Affidavit
[7]
See paragraph 11.6 of Answering Affidavit
[8]
Mannesmann Demag (Pty) Ltd v Romate x
1988 (40 SA 383
(D) at 389 F -
390 D