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[2017] ZAGPPHC 17
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Maepi v Abrahams (43355/2015) [2017] ZAGPPHC 17 (30 January 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
30/1/2017
Case
Number: 43355/2015
Reportable:
NO
Of
interest to other judges: NO
Revised.
ANDRE
EUGENE
MAEPI PLAINTIFF
AND
ESSOU
ABRAHAMS DEFENDANT
JUDGMENT
MOLEFE
J
[1]
The plaintiff issued summons against the defendant for payment of R1
300 000. 00 plus interest and costs based on a written
loan agreement
dated 19 February 2012, with a conditional alternative claim based on
unjust enrichment for payment of R700 000.
00 plus interest and
costs. The contractual claim is based on a loan agreement which
determines that the capital loan amount of
R700 000. 00 is payable
over four (4) months with interest at the rate of 84%.
[2]
The defendant in his plea denied payment by the plaintiff and
additionally pleaded legal defences in regard to the main claim,
with
specific reference to the National Credit Act, Act. 34 of 2005 ("the
NCA").
[3]
The issues for determination in respect of the main claim are:
3.1 whether the parties concluded a
written loan agreement which purports to be an acknowledgment of
receipt of the capital amount;
3.2 whether the plaintiff paid the
R700 000. 00 to the defendant and if the loan is repayable by the
defendant;
3.3 whether the transaction is
regulated by the NCA and if so, was the plaintiff registered as a
credit provider in terms of the
NCA and if not, the effect of the
plaintiff's failure to register as such.
[4]
In regard to the conditional alternative claim of unjust enrichment
the issues to be determined are:
4.1 whether the loan agreement was
illegal due to the non-registration of the plaintiff as a credit
provider in terms of the NCA;
4.2 whether payment of R700 000. 00
was made by the plaintiff to the defendant and was the plaintiff
impoverished and the defendant
enriched as a result of the payment.
Summary
of oral evidence presented
[5]
The plaintiff testified himself and called one witness Mr Jeremy
Waters ("Waters"). The plaintiff submitted
as
documentary evidence, the written loan agreement
[1]
and a photograph depicting Waters sitting at a table in the
defendant's home with a vast amount of cash in front of him
[2]
.
The defendant did not object to the admission of the loan agreement
and/or the photograph as evidence.
[6]
Mr Andre Eugene Maepi,
the plaintiff, testified that he was
introduced to the defendant by Waters on 12 February 2012 and the
defendant requested a loan
of R700 000. 00 from the plaintiff.
Various discussions took place between them on 13, 14 and 15 February
2012 and the discussions/negotiations
culminated in the initial oral
agreement on 17 February 2012 when the plaintiff handed a cash amount
of R700 000. 00 to the defendant
at the defendant's funeral parlour.
The cash amount was given to the defendant in the presence of Waters
but it was decided that
the money would be counted at the defendant's
house as there was no private area at the funeral parlour in which to
count the money.
[7]
The defendant and Waters went to the defendant's home to count the
money without the plaintiff as plaintiff was in a hurry to
go to his
wife who was about to give birth. Plaintiff later that same day went
to defendant's home where he found that the defendant
and Waters had
finished counting the money. Photographs of the defendant and Waters
with the money were taken with Waters' cellphone
and the defendant
was satisfied that the amount of the money was correct.
[8]
Plaintiff testified that the loan agreement could not be signed on 17
February 2012 as it could not be printed as the defendant's
printer
was broken. Two days later on 19 February 2012, plaintiff went to the
defendant's home with Waters and the loan agreement
was signed by
plaintiff, defendant and Waters as a witness. Plaintiff was satisfied
that the defendant would repay him the loan
as defendant had informed
him that he was awaiting payment from the Municipality for the
projects he was doing.
[9]
Under cross-examination, the plaintiff conceded that he did not
register as a credit provider as he was ignorant of the NCA.
Plaintiff could not provide an explanation as to why the loan
agreement had been endorsed as a copy of the original on 12 December
2014 nor could he explain where the original agreement was.
[10]
Mr Phillip Jeremy Waters,
in his testimony, corroborated the
plaintiff's version that the plaintiff gave R700 000. 00 cash to the
defendant on Friday 17 February
2012 at the defendant's funeral
parlour. He also confirmed that the photograph was taken with his
cellular phone at the defendant's
home after the money had been
counted by him and the defendant. Waters testified that he introduced
the defendant, his neighbour
to the plaintiff as the defendant needed
a loan for an agricultural project.
[11]
Under cross-examination, Waters testified that he introduced the
defendant to the plaintiff for a loan as he was under the
impression
that he was in partnership with the defendant. He admitted that later
there was animosity between him and the defendant
which led to him
suing the defendant for money owed to him.
[12]
Mr Essou Abrahams,
the defendant, testified himself and called
one witness Mr Gerald Ferris. The defendant denied payment of R700
000. 00 by the plaintiff.
He testified that he signed the loan
agreement during or about February 2012, at his funeral parlour, on
the bonnet of the plaintiff’s
vehicle. Defendant's version is
that when the agreement was presented to him, it had already been
signed by the plaintiff and one
witness, Waters. It was then agreed
that the second witness would only sign beneath defendant's signature
once he received the
funds from the plaintiff. Defendant further
testified that he required the R700 000. 00 to provide security in
terms of a road
construction tender which was to commence in March
2012. Due to plaintiff's failure to provide the funds as agreed, he
was unable
to commence with the project, and the project was as a
result extended to September 2012.
[13]
The defendant testified that he did not know anything about the
photograph and that he was not present when it was taken. He
further
denied that the plaintiff was ever at his house except on the one
occasion when he came to threaten defendant's wife and
children, for
reasons unknown to him. He admitted that Waters is his neighbour and
that Waters introduced him to the plaintiff
when he needed the loan.
However, since March 2012, there has been animosity between Waters
and him and the reasons that caused
the animosity were unknown to
him.
[14]
Although the defendant in his examination-in-chief testified that he
knew nothing about the photograph, he testified under
cross-examination that the photograph was taken at his home, on a
date unknown to him and that it depicted Waters with a large
amount
of cash as on that unknown date, Waters was busy attending to the
defendant's payroll for his employees.
[15]
Mr Gerald Ferris,
defendant's witness testified that during or
about Februay 2012, he was requested by Waters to sign an agreement
as a witness in
terms of which Waters and defendant would borrow
money. He was later informed by Waters that it was no longer
necessary for him
to sign the agreement as the funds had already been
received. He later received a photograph from Waters' cellphone
depicting Waters
with a large amount of money received. Ferris
corroborated the version of Waters to the effect that the photograph
was taken using
his cellphone and was sent to Ferris after the R700
000. 00 had been paid to the defendant. Ferris confirmed that after
he received
the photograph, it was clear that it was no longer
necessary for him to sign the loan agreement as a witness as the
defendant had
already received the money.
[16]
Although the defendant's counsel never objected to the admission of
the photograph as evidence, nor was the authenticity of
the
photograph in dispute or a subject of any cross-examination on behalf
of the defendant, for the first time in his heads of
argument
defendant's counsel submitted that the evidentiary weight of the
photograph that was taken with a cellphone must be weighed
in light
of the
Electronic Communications and Transactions Act 25 of 2002
and specifically
section 15
which reads as follows:
“
Admissibility and evidential
weight of data messages
15(1) In any legal proceedings, the
rules of evidence must not be applied
so as
to deny the
admissibility of
a
data message in evidence
–
a)
on the mere grounds that it is constituted by
a
data
message; or
b)
if it is the best evidence that the person adducing it could
reasonably be expected to obtain, on the grounds that it is not in
its original form.
(2) Information in the form of
a
data message must be given due evidential weight.
(3)
In assessing the
evidential weight of
a
data message, regard must be had to-
a)
the reliability of the manner in which the data message was
generated, stored, or communicated;
b)
the reliability of the manner in which the integrity of the
data message was maintained;
c)
the manner in which its originator was identified; and
d)
any other relevant factor.·
Counsel
argued that the original instrument (Waters' cellular phone) cannot
be established and no date can be attached to the photograph
to
support the plaintiffs version.
[17]
I do not agree with the submissions made by the defendant's counsel.
A data message means data generated, sent, received or
stored by
electronic means and includes -(a) voice, where the voice is used in
an automated transaction; and (b) a stored record.
In my view the
photograph is not a data message to the extent that it was forwarded
to another person, who had opportunity to tamper
with the photograph.
Evidence was led that it was printed from the original device it was
taken on, being the cellular telephone
of Mr Jeremy Waters. The
defendant also in his version admitted that the photograph was taken
from his house although he denied
that the cash depicted was the R700
000. 00 paid to him by the plaintiff. Furthermore, the failure of the
defendant to cross-examine
the plaintiff and/or Waters about the
authencity of the photograph has the effect that this evidence may
not be called into question.
(See
R v Balitane
1956 (3) SA 634
(E)
.
[18]
Undoubtedly, the evidence of the plaintiff and defendant show factual
disputes and irreconcilable versions. The technique generally
adopted
by the courts in resolving factual disputes when dealing with two
irreconcilable versions is set out in
SWF
Group Limited and Another v Martell ET CIE and Others
[3]
wherein the following relevant applicable principles are stated:
"To come to
a
conclusion
on the disputed issues
a
court must make findings on:
18.1 the credibility of the various
factual witnesses which depends on
a
court's impression about
the veracity of the witnesses;
18.2 their reliability; and
18.3 the probabilities.
18.4 As to the credibility of a
particular witness, a number of factors must be taken into
consideration:
i)
the witness's
conduct 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 facts or with his own extracurial
statements
or
actions;
v)
the probability or
improbability of particular
aspects
of his versions;
vi)
the caliber and
cogency of his performance compared to that of other
witnesses
testifying about the
same
incident or event.
18.5 A witness' reliability will
depend in addition to the aforesaid factors mentioned above and on:
i)
the opportunities he had to
experience
and observe the event in question; and
ii)
the quality, integrity and
independence of his recall of the event.
18.6 Having regard to the
probabilities, this necessitates
an analysis and evaluation of
the probability or improbability of each party's version on each of
the disputed issues.
18.7 In light of its assessment of
the factors in 18.4 and 18.6 above,
a
court should then,
as
a
final step, determine whether the party burdened with the onus
of proof has succeeded in discharging it.
18.8 When
a
court's
credibility findings compel it in one direction and its evaluation of
the general probabilities compels it in another direction,
the more
convincing the former, the less convincing will be the latter. But
when all factors are equipoised probabilities prevail".
[19]
The test propounded by Wessels JA in
National
Employers' Mutual General Insurance Association v Gany
[4]
is to the effect that
"where there are two
stories mutually destructive, before the onus is discharged, the
Court must be satisfied upon adequate
grounds that the story of the
litigant upon whom the onus rests is
true
and
the other false".
[20]
In a civil case where the
onus
rest on
the plaintiff as is in the present case, and where there are mutually
destructive stories, the plaintiff 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 (See
National
Employers' General Insurance v Jagers
[5]
).
[21]
The plaintiff
in casu
appeared
to be honest and reliable and presented a clear and solid case with
very minor and immaterial contradictions. The plaintiff's
evidence
was corroborated by the evidence of Mr Waters in every material
aspect. find both the plaintiff and his witness to be
reliable.
[22]
The defendant's version on the other hand, is in my view flawed and
unreliable. The defendant was a poor witness and adjusted
his version
of events during his evidence when he was confronted with
impossibilities and improbabilities. In regard to the photograph,
the
defendant at first did not know anything about it but later he
changed his version that it was taken during February/March
2012 when
Waters was doing his payroll. It is difficult for me to understand
how the defendant, an experienced businessman, would
sign a loan
agreement acknowledging receipt of a sum of R700 000. 00 despite
having not received the money from the plaintiff.
What is also
strange is the defendant's version that the plaintiff came to his
home and threatened his family but he could not
explain why the
plaintiff, who in his version still had to give him the loan, would
threaten his family. I find the defendant's
version to be highly
improbable and his version actually corroborating the plaintiffs
version that he gave him the R700 000. 00
and that the defendant
refused to pay back the money.
[23]
The defendant's own witness Ferris, did not assist the defendant by
corroborating his version but in fact, Ferris corroborated
the
evidence of the plaintiff and Waters to the effect that the
photograph was taken after payment of R700 000. 00 was received
by
the defendant.
[24]
I am therefore satisfied that the plaintiff has discharged the
onus
of proving that the parties concluded the written loan agreement
after the plaintiff had made a payment of R700 000. 00 to the
defendant
and that the loan is repayable by the defendant.
[25]
Applicability of the National Credit Act
25.1.
In terms of section 40 of the NCA, a person must
apply to be registered as a credit provider if the total amount of
debt owed to
that credit provider under all outstanding credit
agreements, other than incidental credit agreements, exceeds the R500
000 threshold
prescribed in terms of section 42 (1);
25.2.
Section 40(3) of the NCA provides that a person
who is required in terms of section 40(1) to register as a credit
provider, but
who is not so registered, must not offer, make
available or extend credit, enter into a credit agreement or agree to
do any of
those things;
25.3.
In terms of section 40(4) of the NCA, a credit
agreement entered into by a credit provider who is required to be
registered but
who is not so registered is an unlawful agreement and
void to the extent provided for in section 89. In terms of section
89(2)(d).
a credit agreement is unlawful if at the time of the
agreement was made, the credit provider was unregistered and the Act
required
the credit provider to be registered. In terms of section
89(5)(a) if a credit agreement is unlawful in terms of section 89, it
is void from the date the agreement was entered into.
[26]
It therefore follows that when an unregistered credit provider who is
required to be registered, lends money to a consumer,
he or she will
have no contractual cause of action and will be obliged to sue the
consumer under the law of unjust enrichment,
by means of the
condictio ob turpem vet
iniustam causa,
to recover
the money
[6]
.
[27]
Plaintiff's counsel
[7]
submitted that it was not necessary for the plaintiff to register as
a credit provider and that the main claim is accordingly in
order and
enforceable with due regard to the NCA and in this regard relied on
Friend v Sendai
2015 (1) SA 395
(GP).
The
full bench
[8]
in
Friend supra
held
that section 40( 1)(b) of the NCA had to be seen as having been
directed at those people who were in the credit market and/or
industry or at those who intended to participate in the credit market
and/or industry
and
not for a credit provider involved in a single transaction, as
in
casu.
[28]
The defendant's counsel
[9]
disagreed with plaintiff's submissions and referred the court to the
matter of
Van Heerden v
Nolte
2014 (4) SA 584
(GP)
wherein
the court stated as follows:
"[14] In any event, the ratio
decidendi in Friend is inconsistent with the approach taken by the
Constitutional Court in National
Credit Regulator v Opperman and
Others
2013 (2) BCLR 170
(CC) handed down in December 2012, three
months after the Full Court handed down its judgment in Friend. The
basic facts in Opperman
are not dissimilar to those in the present
case. Opperman had lent his friend
a
total amount of R7
million under three separate credit agreements. The Constitutional
Court found that he had been obliged to register
as
a
credit
provider despite the facts that he was not in the
business of
providing credit, was unaware of the requirements to register as
a
credit provider and had no intention of violating the NGA. It held
further that Opperman was required to register as
a
credit
provider because the "total principal debt exceeded the R500 000
threshold prescribed in terms of section 42(1) of the
NGA".
[29]
The conclusion that I come to is that a full bench judgment may not
enjoy precedence over a Constitutional Court by virtue
of the
stare
decisis
principle as the Constitutional Court is the highest
authority of law in South Africa. In
casu,
the total principal
debt exceeded the prescribed threshold of R500 000. 00 and the
plaintiff was not in the business of providing
credit and therefore
make the NCA applicable. The plaintiff, as an unregistered credit
provider consequently has no cause of action
and the loan agreement
is
ipso facto
void. In the result, the plaintiff was indeed
entitled to register as a credit provider in terms of the NCA. The
plaintiff is however
entitled to sue under the law of unjust
enrichment in the alternative claim.
Unjust
Enrichment Claim
[30]
The plaintiff is entitled to the alternative claim for enrichment as
the agreement entered into between the parties is unlawful
and
accordingly void. Although a general enrichment action has not yet
been accepted in our law, there are nevertheless certain
general
requirements for any action based on enrichment
[10]
:
30.1
the defendant must be enriched;
30.2
the plaintiff must be impoverished;
30.3
the defendant's enrichment must be at the plaintiffs
expense; and
30.4
the defendant's enrichment must be unjustified.
In
other words, the enrichment must be without legal cause or
sine
causa.
[31]
The common cause and crisp issues
in casu
are the following:
the plaintiff has paid to the defendant an amount of R700 000; the
defendant was unjustifiably enriched and the
plaintiff was
accordingly impoverished.
[32]
I do not agree with the submissions made by counsel for the defendant
that it is also incumbent on the plaintiff to illustrate
why the
par
delictum
rule should not find application to the plaintiffs
unjust enrichment claim. Counsel in this regard relies on what the
Constitutional
Court stated in
Chevron SA (Pty) Ltd v Wilson t/a
Wilson's Transport and Others
2015 (10) BCLR 1158
(CC):
"In order to be successful,
ordinarily the party who claims on the basis of unjust enrichment
must be free of turpitude and
show that he or she has not acted
dishonourably.
If the credit provider is not free
of turpitude, the par delictum rule stipulates that the law should
not come to her aid".
[33]
I have noted that no evidence has been presented to the court of any
turpitude on the part of the plaintiff and/or plaintiffs
witness
Waters. There can therefore be no doubt that the plaintiff is clear
of turpitude and in my view, this argument is with
no merits and
should fail.
[34]
In the circumstances, I find that the plaintiff has successfully
discharged the
onus
expected of him of proving on a balance of
probabilities that he paid R700 000. 00 to defendant as a loan and
that loan is repayable
by the defendant.
[35]
I therefore make the following order against the defendant:
1.
Payment of the
amount of R700 000. 00;
2.
Interest a
temporae morae
at the rate of 15,5% per annum from 17 February
2012 until 31 July 2014, both days included; and at the
rate
of
9%
per annum from 1 August 2014 until date of payment, both
days included;
3.
Costs of suit
including the costs of the summary judgment.
___________________
D
S MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of Plaintlff
:
Adv.
J.A.H May
Instructed
by
: Lampen
Attorneys
Counsel
on behalf of Defendant
:
Mr. M.C
Scheepers
Instructed
by
:
Scheepers Aucamp Attorneys
Date
Heard
: 19, 20
and 28 October 2016
Date
Delivered
: 30
January 2017
[1]
Pleadings bundle, page 13 Annexure "A1"
[2]
Pleadings bundle, page 14 Annexure "A2"
[3]
2003 (1) SA 11SCA
at paragraph (5)
[4]
1931AD 187 at 199
[5]
1984 (4) All SA 622 (E)
[6]
Van Heerden v Nolte 2014 (4) SA 584 (GP)
[7]
Advocate J.A.H. May
[8]
Legodl J, Fabrlclus J & Kubushi J
[9]
Mr M.C. Scheepers
[10]
The Law of South Africa, vol 9, second edition at par 209