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[2019] ZALMPPHC 28
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Cross Atlantic Properties 64 (Pty) Ltd t/a A-2 Bridging v Kruger (4496/2018) [2019] ZALMPPHC 28 (19 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: 4496/2018
19/6/2019
In the matter between:
CROSS
ATLANTIC PROPERTIES 64 (PTY) LTD
PLAINTIFF
t/a
A-2
BRIDGING
And
CONRAD
HENDRIK KRuGER
DEFENDANT
JUDGMENT
MAKGOBA
JP
[1]
The
Plaintiff instituted a claim against the Defendant based on negligent
breach of a mandate given by the Plaintiff to the Defendant
to act as
its attorney in a money lending transaction in respect of which the
Plaintiff was the credit provider and a company known
as Canton
Trading 291 (Pty0 Ltd was the borrower. The Defendant was a
co-director of the company, Canton Trading 291 (Pty) Ltd
("Canton
Trading") together with one Harry Morwamocha Maleka ("Harry
Maloka") who has since passed on on 4
February 2013.
[2]
As
already stated, the Plaintiffs claim against the Defendant is
essentially based on the breach of a mandate that was given by
the
Plaintiff to the Defendant. The Defendant as an attorney, was
mandated to ensure that the necessary documents be drafted and
executed to safeguard the interest of the Plaintiff when advancing a
loan to Canton Trading. The Defendant failed to safeguard
the
interests of the Plaintiff and in the end the Plaintiff could not
claim payment from the borrower of the money, and, in addition,
had
no security for the debt.
[3]
The
Defendant's defence is basically that the loan agreement was
concluded between the Plaintiff and Harry Maloka in his personal
capacity. The Defendant contents that if the agreement was in fact
concluded between the Plaintiff and Canton Trading as opposed
to
Harry Maloka personally, he would have attended to the drafting of a
suretyship agreement as well as a surety bond to protect
the
Plaintiff's interests.
Common cause facts
[4]
The following facts are common cause or
are not seriously disputed:
4.1.
That the Defendant would at least draft
the following documents to secure the loan -
4.1.1.
A
written loan agreement between the Plaintiff and Canton Trading;
4.1.2.
A
deed of suretyship under which Harry Maloka bound himself as the
surety of Canto Trading in favour of the Plaintiff;
4.1.3.
A
surety bond over the immovable property of Harry Maloka,
alternatively, and only if another causa existed, a mortgage bond.
4.2.
As
at August 2012 there existed a relationship of trust between the
Defendant and one Dewald Pretorius ("Pretorius") the
director and person in control of the Plaintiff company. The
Defendant also considered Pretorius as a friend and that prior to
August 2012 the Defendant acted as attorney for Pretorius. The
Defendant knew that Pretorius had a business that provided bridging
finance, namely A - Z Bridging.
4.3.
During
August 2012 Canton Trading had serious cash flow difficulties.
Pretorius was approached by an employee of Canton Trading,
Mr Kobus
Van Straaten ("Van Straaten") to convince Pretorius to
provide bridging finance to Canton Trading. The Defendant
became
aware of this on 13 August 2012 during a telephone conversation with
Pretorius. It was during this telephone conversation
that Pretorius
informed the Defendant that he would be prepared to advance the funds
to Canton Trading, but only on condition that
adequate security be
provided to him.
4.4.
Initially
Van Straaten had proposed a cession of book debts as security for the
proposed loan. Pretorius indicated that this was
not acceptable and
that he required an immovable property as security for the loan.
4.5.
The
Defendant proposed that an immovable property belonging to Harry
Maloka would be used to provide security to the Plaintiff.
Canton
Trading would be the principal debtor and Harry Maloka would be the
surety. The immovable property of Harry Maloka, Erf
450 Bendor,
Polokwane, would be used to register a surety bond as additional
security.
4.6.
The
loan amount of R 800 000.00 was paid by the Plaintiff into the
Defendant's trust bank account on 15 August 2012. On the same
date
the amount was paid out of the Defendant's trust bank account to
Canton Trading.
4.7.
Canton
Trading was placed in business rescue on 17 October 2012 and it was
placed in liquidation on 27 November 2012.
4.8.
Harry
Maloka tragically committed suicide on 4 February 2013. As at the
date of his death the suretyship bond had not been registered
over
his immovable property.
[5]
The
Plaintiff issued summons against the Defendant during May 2014 and
the Defendant entered appearance to defend the action. The
Plaintiff
proceeded to launch an application for summary judgment. On 19 August
2014 the Defendant deposed to an opposing affidavit
resisting the
summary judgment. Leave to defend was granted.
Factual Background
[6]
Pretorius
testified that when he asked the Defendant for security in the form
of an immovable property the Defendant informed him
that he would
approach Harry Maloka, one of the directors of Canton Trading to
provide the required security. The Defendant informed
him that he
(the defendant) had already given enough from his own funds to Canton
Trading. It was against this background that
it was proposed that
Harry Maloka would provide security by way of the registration of a
bond over his immovable property known
as Erf 450 Bendor, Polokwane
("Erf 450").
[7]
According
to Pretorius the essential terms of the agreement were
straightforward and as follows:
7.1.
The
Plaintiff would advance an amount of R 800 000.00 to Canton Trading.
7.2.
Harry
Maloka would act as the surety for Canton Trading.
7.3.
Harry
Maloka would also sign all the necessary documents to enable the
Plaintiff to register a surety bond over Erf 450.
[8]
Pretorius
testified further that it was against the background of the
aforementioned agreement that he mandated the Defendant who
accepted
the mandate to do the following:
8.1.
The
Plaintiff would deposit this amount of R 800 000.00 into the trust
account of the Defendant.
8.2.
The
Defendant was required to draft all the necessary documentation to
give effect to the aforementioned agreement. In particular
the
Defendant was required to draft a suretyship agreement as well as the
necessary documents for the registration of a surety
bond over Erf
450.
8.3.
Although
it was not necessary to first register the surety bond over Erf 450
before the funds would be paid to Canton Trading, it
was the express
instructions to the Defendant that the trust funds (R 800 000.00)
could only be paid to Canton Trading once all
the necessary
documentation had been drafted by the Defendant and duly signed by
Harry Maloka.
8.4.
The
loan was a short term loan and had to be repaid to the Plaintiff
within one month. In the event that the Plaintiff was not timeously
repaid, the Plaintiff would instruct the Defendant to then proceed
with the registration of the surety bond.
[9]
It
is Pretorius's evidence that the Defendant breached the agreement in
that he failed to carry out the mandate given to him. The
Defendant
transferred or paid out the amount of R 800 000.00 to Canton Trading
notwithstanding the fact that the loan agreement,
suretyship and
security bond had not been drafted and / or executed. By the time
Pretorius gave instructions to the Defendant to
proceed with the bond
registration the Defendant would give excuses that he was unable to
locate the original documents. In an
e-mail dated 15 August 2012 the
Defendant gave confirmation that the documents were duly executed and
requested Pretorius to pay
the amount of R 800 000.00 into the
Defendant's trust account. Pretorius obliged. It later transpired
that the confirmation by
the Defendant was false. By the time
Pretorius realized this, the funds were already paid out from the
trust account to Canton
Trading.
[10] The
relevant terms of the debt agreement signed by Harry Maloka on 13
August 2012 are clear and unambiguous.
Harry Maloka signed the debt
agreement in his representative capacity as a director of Canton
Trading. The introductory part of
the debt agreement provides as
follows:
"I/We, the undersigned,
HARRY MORWAMOCHA MALOKA Identity No 520626 5753 085 UNMARRIEED
In my capacity as Director
of CANTON TRADING 291 (PTY) LTD Registration No 2011/004239/07".
(Own emphasis)
[11]
The documents that were drafted by the
Defendant and submitted to Harry Maloka for his signature were
inadequate. The power of attorney
does not refer to the actual person
to be appointed as principal debtor. It also fails to identify in
whose favour the bond would
be registered. The same applies to the
mortgage bond.
[12]
In concluding his evidence Pretorius
stated that the Plaintiff did not lodge a claim against the deceased
estate of Harry Maloka
because the debt was not incurred by Harry
Maloka in his personal capacity. He acted in his capacity as a
director of Canton Trading.
The Plaintiff did also not lodge a claim
against the insolvent estate of Canton Trading. Even though the
Plaintiff would in theory
be entitled to lodge a claim against the
insolvent estate of Canton Trading based on the debt agreement, there
was a shortfall
in the amount of R 49 184 750.73 in the insolvent
estate of Canton Trading. There was no conceivable prospect to the
Plaintiff
as a concurrent creditor to receive any dividend.
[13]
Pretorius was an honest, reliable and
credible witness. His evidence is straightforward and without any
contradictions during cross-examination.
His evidence is accordingly
accepted as credible and reliable.
[14]
In his evidence the Defendant admitted
that as at August 2012 there existed a relationship of trust between
himself and Pretorius,
the person in control of the Plaintiff. The
Defendant admitted that he also considered Pretorius as a friend at
the time and that
prior to August 2012 he acted as attorney for
Pretorius.
[15]
The Defendant testified that he is a
practicing attorney admitted as such in May 1994 and was admitted as
a conveyancer in 1997.
He confirmed that he was a director of Canton
Trading. That on 13 August 2012 Mr Kobus Van Straaten approached
Pretorius with a
request for bridging finance for Canton Trading. The
Defendant thereafter talked to Pretorius and informed him that Harry
Maloka
would provide security for the loan in the form of his
immovable property, Erf 450 Bender, Polokwane.
[16]
The Defendant testified that he does not
know who drafted the debt agreement which was signed by Harry Maloka
on 13 August 2012.
However, he went on to state that by signing the
aforesaid debt agreement Harry Maloka incurred the debt in his
personal capacity.
According to the Defendant Canton Trading is not
the debtor but Harry Maloka is the actual debtor irrespective of the
fact that
Harry Maloka signed the debt agreement in his capacity as a
director of Canton Trading.
[17]
The Defendant denies that he was given a
mandate by Pretorius to draft the necessary documents to be signed by
Harry Maloka in order
to give effect to security for the loan. He
specifically stated that he did not prepare the suretyship agreement
because he was
never instructed by Pretorius to do so. The Defendant
stated that the loan agreement was concluded between the Plaintiff
and Harry
Maloka in his personal capacity. He stated that if the
agreement was in fact concluded between the Plaintiff and Canton
Trading
as opposed to Harry Maloka personally, he would have attended
to the drafting of a suretyship agreement as well as a surety bond.
[18]
The Defendant did not give a good
impression as a witness. Even in his evidence in chief he was not
straightforward when presenting
his evidence. Under cross-examination
he was evasive and gave unnecessary long-winded answers and uncalled
for statements. He was
even argumentative when called upon to answer
simple questions. The devastating aspect of his evidence is that his
version at the
trial differ materially with the version he put in his
affidavit when opposing the application for summary judgment. There
are
material contradictions.
[19]
In paragraph 6 of his opposing affidavit
the defendant stated:
"In terms of the verbal
agreement (read in conjunction with the debt agreement) payment of
the loan amount
was
deferred and the
plaintiff
would be entitled to receive accrued interest from Canton Trading 291
(Pty) Ltd
("Canton
Trading") equally
.
167%
per day of the total loan amount. Accordingly, the verbal loan
agreement constitutes an incidental credit agreement
as
contemplated in
section 8 of the NCA"
It is clear from the
aforementioned allegation that it was the Defendant's version that
there was a loan agreement concluded with
Canton Trading. The
Defendant's oral evidence at the trial is that the loan agreement was
concluded with Harry Maloka personally.
There is no doubt that the
Defendant accepted in his opposing affidavit that Canton Trading had
the principal repayment obligation
towards the Plaintiff.
[20]
The Defendant in his oral evidence
denies the conclusion of an agreement with the Plaintiff i.e that the
Plaintiff gave him a mandate
to act on its behalf in the loan
transaction.
However the Defendant proceeded to
make the following statement in paragraph 11 of the opposing
affidavit:
"The plaintiff simply
mandated my firm to render certain services on its behalf"
[21]
In paragraph 13 of the opposing
affidavit the Defendant stated the following:
"After conclusion of the
verbal loan agreement, the plaintiff (represented by Pretorius)
instructed my firm to:
13.1.
Accept
payment of the loan amount of R 800, 000.00 into my firm's trust
account;
13.2.
To
attend to the drafting of
all
documentation necessary
to secure
a
first covering mortgage bond over the
following immovable property, belonging to Maloka:
Stand 450, Bendor, Polokwane
(“Stand 450”)
13.3.
To
obtain the original title deed of Stand 450 and to hand same over to
the plaintiff, for safekeeping;
13.4.
To
ensure that
a
"debt
agreement", prepared by an employee of Canton Trading, be signed
by the relevant parties concerned:
13.5.
To
ensure that all documentation necessary to secure a first covering
mortgage bond over Stand 450 is signed by the relevant parties
concerned; and
13.6.
To
immediately effect payment of the loan amount to Canton Trading,
after fulfilment of the obligations set out and contained in
paragraph 13.1 to 13.5 supra."
("Own emphasis)
It is clear that in the opposing
affidavit the Defendant had no difficulty in appreciating that he
could only proceed to deal with
the trust funds once he had drafted
"
al/ documentation necessary"
to secure a first covering
mortgage bond. However, in the oral evidence he denies any agreement
of mandate between him and the Plaintiff.
[22]
In paragraph 15 of the opposing
affidavit the Defendant alleged that he complied with his
obligations. He stated in particular that
he drafted the necessary
documentation. Although the Defendant persisted with this version
during trial, it has been discovered
that the documents that he
drafted were hopelessly inadequate .
[23]
Throughout the opposing affidavit the
Defendant stated that there was a verbal loan agreement concluded
between the Plaintiff and
Canton Trading. During cross-examination
the Defendant stated that the verbal loan agreement was replaced with
a debt agreement
and also added that the debt agreement was not
concluded with Canton Trading, but with Harry Maloka.
[24]
At a point in time the Plaintiffs
attorney of record addressed a letter of demand to the Defendant
dated 18 February 2014. The letter
reads as follows:
"Ons
verwys na vorige
korrespondensie en wens u mee to deel dat
ons
klient
se
opdrag
soos
volg is:
1.
Daar
is
geen
vooruitsigte op enige geld uit boedel van wyle Harry Maloka te
verhaal nie.
2.
U
het
ons
klient
genader
om
die
lening to maak aan CantonTrading 219 (Edms) Bpk waarvan u
saam
met Harry Maloka 'n direkteur
is.
Ons
klient het toe daardie bedrag in
u trustrekening betaal op die grondslag dat dit nie
sou
uitbetaal nie alvorens al die
sekuriteitdokumente in plek
was.
3.
Daar
is
blykbaar
'n skulderkenning en 'n prokurasie
om
'n verband te passer opgestel, maar u
is
nooit
in besit geplaas van die getekende oorspronklikes nie.
4.
Die
prokurasie
om
'n
verband te passer
is
in
ieder geval gebrekkig onder ander omdat dit 'n gewone verband
is,
terwyl dit 'n borg verband
moes
gewees het, aangesien die lening aan
Canton Trading 219 (Pty) Ltd gemaak
is
en nie aan Harry Maloka nie. Die
verband lees ook dat dit vir R 1 600 000 ten opsigte van gelde geleen
en voorgeskiet deur die verbandhouer
aan die verbandgewer wat nie die
ware toedrag van sake
is
nie.
Verder wit dit vir
ons
voorkom
asof
Maloka
nooit 'n borgakte geteken het nie.
5.
Ons
klient
was
in besit van die titelakte tot Erf
450 Bendor wat'n beperkte mate van sekuriteit kon verleen het, maar
ons
klient
het nou nie eers dit nie, aangesien u die titelakte aan Limdev
gestuur het sonder engige teenprestasie.
6.
Die
gevolg
is
dat
weens die nalatigheid van uself of u personeellede
ons
klient skade gely het ten bedrae van
R800,000.00 plus rente
soos
uiteengesit in die "debt
agreemen"t deur u opgestel en hou hy u daarvoor aanspreeklik.
7.
Tensy
daar teen die eide van hierdie maand bevredigende reelings getref is
vir betaling van die verkuldigde bedrag, is dit ons opdrag
om
voort te gaan met die uitreiking van
dagvaarding.
8.
U
is gedek teen eise van hierdie aard kragtens u professionele
indemnitetsversekering en ons vertou dat u hulle betyds in kennis
sat
stet van hierdie eis."
[25]
The contents of the aforesaid letter
briefly set out the basis of the particulars of claim in the summons
as well as the evidence
adduced on behalf of the Plaintiff. Tellingly
the Defendant did not respond to this letter. This creates the
impression that the
Defendant accepted what was stated in the letter.
I agree with the submission made by Mr Els, counsel for the
Plaintiff, that one
simply would not expect an attorney in the person
of the Defendant to leave this letter unanswered if he did not agree
with the
contents thereof.
[26]
In
McWilliams
v First Consolidated Holdings (Pty) Ltd
1982 (2) SA 1
(AD)
It
was held that:
"Quiescence is not
necessarily acquiescence" and
a
party's failure
to reply to
a
letter asserting
the existence of an obligation owed by such party to the writer does
not always justify and inference that the
assertion was accepted as
the truth. But in general, when according to ordinary commercial
practice and human expectation firm
repudiation of such an assertion
would be the norm if it was not accepted as correct, such party's
silence and inaction, unless
satisfactorily explained, may be taken
to constitute an admission by him of the truth of the assertion, or
at least will be an
important factor telling against him in the
assessment of the probabilities and in the final determination of the
dispute".
[27]
In this case I am enjoined to make an
adverse inference against the Defendant for his failure to respond to
this letter and his
failure to give a satisfactorily explanation of
such failure during the trial. I say so because this unchallenged
assertion in
the unanswered letter had been preceded by
correspondence and negotiations between the parties before they
resorted to litigation.
My finding in this instance is
that quiescence is acquiescence.
Evaluation of Evidence
[28]
The
version of the Plaintiff in this case has always been constant. All
the documentary evidence supports the version of the Plaintiff.
The
Defendant's version, on the other hand, evolved over time. His
version even deviated from what was alleged in the opposing
affidavit
resisting summary judgment. The version of the Defendant is in direct
conflict with the documentary evidence.
[29]
It is trite that when the Court is faced
with two mutually exclusive versions, the Court has to resolve the
factual disputes by
making findings on credibility of the factual
witnesses, their reliability and the probabilities. The test in such
circumstances
is that the Defendant can only succeed if he satisfies
the Court on a preponderance of probabilities that his version is
true and
accurate and therefore acceptable. The Defendant must prove
that the version advanced by the Plaintiff is therefore false or
mistaken
and falls to be rejected.
See
National
Employers' General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D -
441A.
[30]
In
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell ET CIE and Others
2003 (1) SA 11
(SCA)
it was held
that to come to a conclusion on the disputed issues a Court must make
findings on the credibility of the various factual
witnesses, their
reliability and the probabilities.
In this case I have already made a
finding that the Defendant was a poor witness and therefore his
version is rejected. The version
of the Plaintiff prevails.
Defendant's
Conduct
[31]
It is appropriate to deal with issues
relating to the conduct of the Defendant in this case as same will
have an effect on the costs
order in this case.
[32]
Notwithstanding a serious conflict of
interest between the Defendant and the Plaintiff in this case, the
Defendant acted for the
Plaintiff under the circumstances where the
Plaintiff advanced the sum of R 800.000.00 to a company in which the
Defendant had
a significant financial interest. The end result of
everything was that the Plaintiff was unable to recover the amount of
R 800
000.00 that had been advanced to the company because the
Defendant failed to execute his mandate. An attorney should not act
for
a client whose interests conflict with his own. The conduct of
the Defendant in this regard was reprehensible, to say the least.
See
Law Society of the Cape of Good Hope
v Tobias
1991 (1) SA 430
(C) at page 438.
[33]
The Defendant admittedly acted as an
attorney representing the Plaintiff. As a result thereof the
Defendant has a duty to advise
the Plaintiff regarding the legal
requirements for such a loan. Notwithstanding this, the Defendant
raised, as a special plea,
the non-compliance with the requirements
of the National Credit Act, 34 of 2005 ("the NCA"). The
special plea was that
it was necessary for the Plaintiff to register
as a credit provider in terms of section 40 of the NCA. This was on
the basis that
the loan was advanced to Canton Trading. When the
Plaintiff replicated that the loan exceeds the threshold prescribed
in terms
of section 42(1) of the NCA (i.e an amount of R 500 000.00)
and that section 40 would not be applicable in this case, the
Defendant
changed tack. He amended his initial special plea and
alleged that the loan agreement was in actual fact not concluded with
Canton
Trading, but Harry Maloka. The Defendant again persisted with
the special plea that it was necessary for the Plaintiff to register
as a credit provider because the loan was made to Harry Maloka.
[34]
The aforesaid conduct of the Defendant
in admitting that he represented the Plaintiff (with an obvious
corresponding duty to execute
his mandate without negligence) but
then proceeding to raise the non-compliance with the NCA in a special
plea was opportunistic
if not unconscionable. He had a duty to advise
his client on the requirements of the NCA not to take advantage of
the provisions
of the legislation, which was in fact not applicable
in this loan transaction.
[35]
The Defendant had failed or neglected to
draft the necessary documentation and obtain Harry Maloka's signature
thereon in order
to effect the suretyship and registration of the
surety bond over Erf 450. The only excuse that was given to the
Plaintiff why
the Defendant could not proceed to register the bond
was the fact that the original documents were not delivered to the
office
of the Defendant. It was never disclosed by the Defendant that
the documents that were signed were completely inadequate and useless
for the registration of a surety bond. The Defendant had a duty of
disclosure towards the Plaintiff, his client.
[36]
At some point and before the amount of R
800 000.00 was paid over to Canton Trading, the Plaintiff was given
the original title
deed of the property of Harry Maloka, Erf 450 for
safekeeping and as a security measure. The Defendant went on to
convince the
Plaintiff to forego possession of this title deed under
the pretext that Harry Maloka needed the title deed for purposes of
obtaining
a loan from Limdev and registering a bond over Erf 450.
That the loan from Limdev would partly be utilised to settle amount
of
R 800 000.00 owed to the Plaintiff. The title deed was released by
the Plaintiff to Limdev. However, no bond registration was effected
and as such no loan was obtained from Limdev. The conduct of the
Defendant is horrifying, to say the least.
Conclusion
[37]
From
the conspectus of evidence before me I make a finding that the
Defendant has breached the mandate given to him by the Plaintiff
because:
37.1.
It
was never the intention that Harry Maloka would be the principal
debtor. As a consequence it was necessary for the Defendant
to draft
a deed of suretyship. It would always be based on the deed of
suretyship that a surety bond be registered in favour of
the
Plaintiff. The Defendant completely failed to execute his mandate in
this regard.
37.2.
If
the Defendant duly executed his mandate, he would not have paid the R
800 000.00 in his trust account to his own company, Canton
Trading,
prior to signing of a deed of suretyship by Harry Maloka.
37.3.
If
the Defendant duly executed his mandate, a surety bond would have
been registered over Erf 450 in favour of the Plaintiff. This
would
have provided adequate security to the Plaintiff and the Plaintiff
would have had a secured claim against the deceased estate
of Harry
Maloka.
Costs
[38]
Counsel for the Plaintiff argued that
the Plaintiff is entitled to a costs order on a punitive scale
against the Defendant and for
the following reasons:
38.1.
The
Defendant had a clear conflict of interest. Notwithstanding this the
Defendant proceeded to act on behalf of the Plaintiff.
38.2.
When
the Plaintiff instructed the Defendant to proceed with the
registration of the surety bond, the excuse that was given to the
Plaintiff was that it was simply a matter of the original documents
not being delivered to the Defendant's office.
In truth the Defendant simply
never drafted the necessary documents.
38.3.
The
Defendant continually changed his version. The version that was given
during oral evidence was different from the version that
was
contained in the opposing affidavit resisting the summary judgment
application. In addition the Defendant effected material
amendments
to his plea in order to suit himself. He was vexatious and frivolous
in the manner in which he conducted this litigation.
The Defendant is
not an ordinary litigant. He is a practicing attorney and an officer
of the Court. More is expected of the Defendant.
38.4.
The
Defendant never had any real defence against the claim of the
Plaintiff. Notwithstanding this, the Defendant aggressively resisted
the claim of the Plaintiff and sought postponements on more than two
occasions in order to amend his special plea and plea.
[39]
In the matter of
In
Re: Alluvial Creek Ltd
1929 CPD 532
at 535
the
following was stated:
"An order is asked for
that he pay the costs as between attorney and client. Now sometimes
such an order is given because of
something in the conduct of
a
party which the
court considers should be punished, malice, misleading the court and
things like that, but I think the order may
also be granted without
any reflection upon the party where the proceedings are vexatious,
and by vexatious I mean where they have
the effect of being
vexatious, although the intent may not have been that they should be
vexatious. There are people who enter
into litigation with most
upright purpose and most firm belief in the justice of their cause,
and yet whose proceedings may be
regarded as vexatious when they put
the other side to unnecessary trouble and expense which the other
side ought not to bare. That
I think is the position in the present
case."
See
also
Johannesburg
City Council v Television and Electrical Distributers (Pty) Ltd and
Another 1997 (1) SA 157 (A) at 177D-F; Claase v
Information Officer,
South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA) at para 11;
Campsbay Ratepayers' and Residents' Association
and Another v
Harrison and Another 2011 (4) SA 32 (CC) at para 76 and Venmop 275
(Pty) Ltd and Another v Cleverlad Projects (Pty)
Ltd and Another 2016
(1) SA 78 (GJ) at para 33.
[40]
I
agree with Counsel for the Plaintiff that a proper case is made out
for the appropriate punitive costs order against the Defendant
in
this case.
[41]
I
grant the following order:
41.1.
The
Defendant is ordered to pay to the Plaintiff the amount of R 800 000
00;
41.2.
The
Defendant is ordered to pay interest on the amount of R 800 000.00
calculated at the rate of 15.5 % per annum from 8 August
2014 (being
the date defendant filed notice to defend) to date of final payment.
41.3.
The
Defendant is ordered to pay the Plaintiff's costs on an attorney and
client scale, including all reserved costs orders.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard on
9
& 10 April 2019; 7 June 2019
Judgment
delivered on
19 June 2019
For
the Applicant
Adv APJ Els
Instructed
by
Steward Maritz Basson Inc
c/o Pratt Luyt & De Lange
For
the Respondents
Adv L W De Beer
Instructed
by:
Conrad Kruger Attorneys