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[2017] ZAGPPHC 125
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Nedbank Limited v Mabena (A324/16) [2017] ZAGPPHC 125 (30 March 2017)
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THE
REPUBLIC OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
DATE:
30/3/2017
CASE
NO: A324-16
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
NEDBANK
LIMITED Appellant
and
SELLO
MABENA Respondent
Heard:
26 October
2016
Delivered:
March 2017
JUDGMENT
Molahlehi
J
Introduction
[1]
The appellant, having successfully obtained a provisional
sequestration order of the respondent, approached the Court below
for
its confirmation. The Court, per Molefe J discharged that interim
order and accordingly dismissed the appellant's application
for a
final sequestration order.
[2]
The appellant was also unsuccessful in his application for leave to
appeal the order of the Court below. Its leave to appeal
having been
refused, it then petitioned the Supreme Court of Appeal (the SCA) for
leave to appeal. The leave to appeal was granted
and thus this appeal
serves before this Court with leave from the SCA.
[3]
The issue in this appeal
is limited
to whether
or not the
appellant
is a
creditor of
the
respondent
as
envisaged
in
section
9(1)
of
the
Insolvency
Act
(the Act),
[1]
and
if
so
whether it
is
entitled
to have
the
provisional
liquidation
confirmed.
In the
context of the facts of this case section 9 (1) of the Act
has to be
read with section 35 of the Administration of Estate
Act (the
AEA).
[2]
The
parties
[4]
The appellant, Nedbank Limited, is a registered bank, financial
services and credit provider, duly registered as such, in terms
of
the laws of South Africa.
[5]
The respondent, is a former attorney whose name has been struck off
the roll of practicing attorneys. He was appointed as an
agent by a
certain Mr Lepley, (Lepley ) the executor who had been appointed as
such in the estate late Ms Phyllis Debie Tepper
(the deceased) by the
Master of the High Court, Pretoria. It turned out later that that
appointment was fraudulently obtained.
He is also the sole director
of Banchivis Property Holdings (Pty) Ltd trading as Morua Trust and
Estate Planning (Morua).
The
background facts
[6]
It is common cause that the appellant was, during October 2014,
defrauded of the amount of R1 361 454 44. The amount was part
of the
administration of the estate of the deceased, under Master's
reference T29233/2014.
[7]
The deceased passed away during 2014. At the time of her death she
had the amount of R1 361 454 44 in her account with the appellant.
[8]
The Master's office in Pretoria appointed Mr Lepley as the executor
of the deceased estate. As indicated earlier it turned out
later that
the letter of executorship, appointing Mr Lepley as executor was
fraudulently obtained.
[9]
The respondent was appointed by Mr Lepley as his agent to administer
the late estate of the deceased and this was done in terms
of the
powers of attorney issued on 15 September 2014.
[10]
Thereafter the respondent approached the appellant and provided it
with the relevant documents relating to the administration
of the
estate including proof that an account had been opened in the name of
the late estate with First National Bank. The respondent
provided the
appellant with the documents certified as true copies by him in his
capacity as a Commissioner of Oaths,
ex officio
attorney.
[11]
The respondent certified the copies of the documents provided to the
appellant purportedly in his capacity as a practicing
attorney. This
was a misrepresentation of his status as he was at that stage already
struck off the roll of attorneys. He was stuck
off the roll of
attorneys on 11 June 2007.
[12]
After confirming the death of the deceased the appellant made
payments to the account nominated by the respondent on 1 October
2014. It turned out after the payment of the amount of R1 361 454. 44
to the deceased's late estate account that the appointment
of Mr
Lepley was fraudulent and that Mr Tupper was the lawfully appointed
executor with the letter of executorship by the Master.
[13]
As the agent of Mr Lepley the respondent attended to the affairs of
the late estate under the auspices of Moruo which is a
legal entity
separate from its directors.
[14]
The appellant stated in its papers that despite the demand it made
neither the respondent nor Moruo repaid the funds in question
to it.
[15]
On 9 June 2015, the appellant obtained an order on an urgent basis
directing the respondent and Moruo to produce proof that
the funds in
question have been paid into the First National Bank account and
whether those funds were still available.
[16]
The respondent and Moruo were further ordered to provide a
liquidation and distribution account (the L & D account) in
the
event the funds were no longer available in the bank. In compliance
with the order the respondent furnished the appellant with
the bank
statement confirming that the estate account was opened and that the
funds were deposited into the business account of
Morua. The
respondent further indicated in the e-mail that he had not prepared
an L & D account.
[17]
The bank statement which the respondent had provided to the appellant
reflected that several payments were made out of the
fund during the
period of 1 to 16 October 2014. The balance in the account as at 17
October 2014, was R 29 777.25.
The
decision of the Court below
[18]
In its judgment the Court bellow emphasized that in acting as he did,
the respondent did so in his capacity as a representative
of Morua.
It was for this reason that it found that the respondent was not
liable for what happened to the funds.
[19]
In dismissing the appellant's application to have the respondent
sequestrated the Court below held that it did not agree with
the
contention of the appellant that the respondent was severally liable
in the same way as Morua. The Court further found that
the respondent
was not a surety of Morua and also that he never accepted liability
for the funds in question. It was for this reason
that the Court
found that the claim of the appellant was with Morua and not the
respondent.
[20]
The Court further reasoned that the amount claimed by the appellant
was unassessed and that the appellant failed to satisfy
the
requirements of section 9(1) of the Insolvency Act, to justify the
sequestration of the respondent.
[21]
Before this Court, counsel for the respondent contended that the
appellant's claim lies against Morua and not the respondent.
It was
submitted in this respect that the respondent never acted in his
personal capacity. It was further argued that:
a.
The appellant's claim is not liquidated.
b.
The appellant never set out in its founding affidavit that the
particularity of the amount
it is claiming.
c.
The liability of the respondent was not established.
d.
The payment made by Morua does not create a claim against the
respondent.
Evaluation/Analysis
[22]
The two key findings made by the Court below and which are central to
this appeal are the following:
a.
The respondent in dealing with the late estate of the deceased did
not do so in his personal
capacity but in his capacity as the
director of Morua.
b.
The claim of the appellant was not assessed and accordingly
unliquidated.
[23]
The respondent in opposing this application raised the above as his
defence and further contended that payments made by Morua
did not
create a personal claim against him and that those payments could not
support the sequestration claim against him.
[24]
In relation to the amount of R14 000 which was paid from the account
of Morua on 31 October 2014 into his bond account, it
was argued that
there was no proof of what monies were utilized by Morua and that at
that stage Morua had in its bank account the
amount of R35 580.80
which means that it had sufficient funds of its own to pay the
appellant.
[25]
In terms of
section 9(1) of the Act a creditor who has a liquidated claim of not
less R100 may institute sequestration
proceedings
against the debtor's estate. A
liquidated
claim may exist
by virtue
of a
judgment
of
the court,
an
agreement
or
otherwise.
[3]
[26]
The court will refuse to grant a sequestration order in a case where
the creditor merely claims unassessed damages. In the
present
instance it is common cause that the funds were taken from the
appellant fraudulently which means that it was in a sense
stolen
and/or misappropriated.
[27]
The
authorities seem to be in agreement that a cause of action based on
theft of
money
can
constitute
a
liquidated
claim.
In this
respect
Grosskopf
JA
in
The
Attorneys
Notary
and
Conveyancers
and
Another
Fidelity Guarantee Fund
v
Tony
Allem
(Proprietary)
Limited
and
Another,
[4]
in
dealing
with
this
issue had
the
following
to say:
"The
first
respondent's
claim
in
the
present
case
was
not
an
unliquidated
claim. The claim was for a specific sum of money which was reflected
in the consolidated
account,
and the
fact
that
the
claim was
based
on
a theft
did
not, in my
judgment,
change the position."
[5]
[28]
The SCA further said:
"In
Kleynhans v Van der Westhuizen,
N.O,
1970 (2) SA 742
(A),
where it was said that a claim based on the theft of a specific sum
of money was/a "liquidated claim" for the purposes
of
section 9(1) of Act 24 of 1936. In the course of his judgment Wessels
JA held as follows at 750 A-B:
"Dit
kom my as vanselfsprekend voor dat waar die skuldenaar vaste som geld
van 'n applikant gesteel het, die bedrag van laasgenoemde
se
vordering, wat op die pleging van die diefstal gegrond is, uiteraard
met sekerheid bepaal is. Die bedrag behoef geen bepaling
deur h hof
of ooreenkoms
met die
dief nie, aangesien dit met sekerheid 58 'andersins'
bepaal is.
Waar bewys is dat die diefstal
geleeg
is, is die
bedrag van
skadevergoeding
eweneens
bewys,
en daardie
bepaalde bedrag is onmiddellik
na die
diefstal opeisbaar.
Die dief is
vanaf
die
datum van die diefstal in mora (Wessels,
Law of
Contract
in
S.A., 2de. uitg., para 2864)."
[6]
[29]
Similarly,
in
Hassan
and
Another
v
Berrage
N.O.
[7]
,
the
Court held
that a claim
based
on
misappropriation
of
the
value
of
shares
by
the
respondent
in
a
company constituted
a
liquidated claim in that the shares were traded on the stock exchange
and
therefore
the market value was easily
determinable.
[30]
The funds in question in the present matter were paid by the
appellant, as per the advice of the respondent into the late estate
account of the deceased. It was thereafter paid to various third
parties by the respondent. This, the respondent did fully aware
of
the requirements of section 35 of the AEA.
[31]
The involvement of the respondent in the process which resulted in
the misappropriation of the funds of the late estate is
not in
dispute. It was, however contended, as alluded to earlier in this
judgment, that the involvement of the respondent was not
in his
personal capacity but, as reflected in the powers of attorney, in his
capacity as a representative of Morua.
[32]
It was also contended on behalf of the respondent that he never
acknowledged any indebtedness to the appellant in his personal
capacity.
[33]
In my view, the respondent's defence bears no merit when regard is
had to the totality of the evidence which served before
the court
below. It is for this reason, as elaborated in more detail hereafter,
that I find that the Court below misdirected itself
in the approach
it adopted in dealing with the issue of whether the appellant had a
liquidated claim against the respondent.
[34]
It is common cause, as already
mentioned above, that the amount
of
R1 361 454.44 was paid into the estate late account of the deceased
consequent to the fraudulent misrepresentation
which resulted in the appointment of Mr
Lephey as executor in terms of the letter of executorship issued
by
the Master's office.
[35]
I do not agree with the respondent that the appellant's claim is
unliquidated. It is important to note in this regard that
the
appellant avers at paragraph 5.1 of its founding affidavit that the
respondent is indebted to it jointly and severally with
Moruo for the
total amount which is the subject of the claim. It is not in dispute
that no portion of this amount has been recovered
by the appellant.
[36]
It was also not disputed that the respondent was appointed as the
agent of Mr Lephey, who as alluded to earlier was appointed
executor
in the late estate of the deceased. This is confirmed by the Court
below at paragraph 5 of its judgment. At paragraph
7 of the judgment
the Court below recorded, amongst others, as true facts that:
"7.4
The payments were made without compliance with the peremptory steps
prescribed by the Administration of Estate Act and
more specifically
section 35 thereof of which includes inter alia the filing of a
liquidation and distribution account open for
inspection and
supporting vouchers for all payments made from the estate late
account."
[37]
Having recorded the above as the true facts the Court below
proceeded to find that (at paragraph 15) the respondent did not
act
in his personal capacity in dealing with the funds received from the
appellant, but rather in his capacity - as stated above
- as the
representative of Moruo.
[38]
In its founding affidavit, the appellant made the following
allegations which are significant in the resolution of this dispute:
"5.5
The fund[s] were paid into the estate's bank account by the applicant
on 1 October 2014.
5.6
The bulk of the fund[s] ,in the sum of R800,000-00 were
transferred
by Mabena into the business account of Moruo Trust on 16 October
2014.
5.7
In the period between 01 October 2014 and 17 October
2014, Mabena
made payments from the estate's banking account to the effect that as
at 17 October 2014, only the
sum of
R29,777.25 (of the original R 1,000,361 454. 44)
was left in the account.
5.8
As at 18 December 2014, the business account of
Moruo Trust reflected
the balance of R42, 189. 60.
5.9
Mabena paid out the fund received from the applicant,
to various
third parties, as salaries and one account in his personal name,
without any liquidation and distribution account ever
having been
prepared or approved by the Master."
[39]
The respondent did not dispute the above allegations in his answering
affidavit. It follows therefore that the allegations
stand
uncontested and thus serve as a proven facts.
[40]
I have already alluded to the fact that the respondent's defense
bears no merit. In my view the fact that the powers of attorneys
appointed the respondent in his representative capacity as a director
of Morua does not detract from the liability imputed on him
by the
law. In this respect section 1 of the Act defines an "executor"
as a person who is authorized to act under the
letters of
executorship issued by the Master. And "letters of executorship"
includes:
"any
document issued or a copy of any such document duly certified by any
competent public authority in any State by which
any person named or
designated therein is authorized to act as the personal
representative of any deceased person or as executor
of the estate of
any deceased person."
[41]
Section 16 of the AEA deals with the letters of executors hip and
endorsements to or in favour of corporations and provides
as follows:
"If
any person referred to in subsection (1) of section fourteen in
subsection (1) of section fifteen is a corporation, relevant
letters
of executorship or endorsement, as the case may be, shall be granted
or made-
(a)
in favour of person who is an officer or director of the corporation
and has been
nominated by the testator or, if the testator has not
nominated any person, by the cooperation"
[42]
In
Metequity
Ltd
Another
v
NWN
Properties
Ltd
and
Others,
[8]
the
Court
held
that
an
official
of
a
company
or
corporation
who in
that
capacity
has
been
appointed
executor
cannot
in the
exercise
of
his
duties
be
dictated
to
by the
company.
It
was
further
held that
the
executor
being the
nominee
of the
bank was
the
right
person to
sue which
means
he was
not
shielded
by
the fact
that he was
a
representative
of the
bank. The
court
further
held that:
"It
follows that the nominated official or the director is in fact the
executor by virtue of the issue
of
the letters
of executorship."
[9]
[43]
In the context of the circumstances of this case the provisions of
the Act are, as mentioned above, to be read with the provisions
of
the AEA. In this respect the provisions section 35 of the AEA, which
are peremptory, provides more importantly at subsection
(1) thereof
that:
"An
executor shall, as soon as may be after the last day of the period
specified in the notice referred to in section 29 (1),
but within-
(a)
six months after letters of executorship have been granted to him; or
(b)
such further period as the Master may in any case allow, submit to
the Master an account
in the prescribed form of the liquidation and
distribution of the estate."
[44]
The issue of whether the respondent can be exonerated from liability
because he was acting in his capacity as director of Morua
is
addressed by section 50 of the AEA which provides as follows:
"Any
executor who makes a distribution otherwise than in accordance with
the provisions of section thirty-four or thirty-five,
as the case may
be, shall-
(a)
be personally liable to make good to any heir and to any claimant
whose claim was
lodged within the period specified in the notice
referred to in section twenty-nine, any loss sustained by such heir
in respect
of the benefit to which he is entitled or by such claimant
in respect of his claim, as a result of his failure to make a
distribution
in accordance with the said provisions; and
(b)
be entitled to recover from any person any amount paid or any
property delivered or
transferred to him in the course of the
distribution which would not have been paid, delivered or transferred
to him if a distribution
in accordance with the said provisions had
been made: Provided that no costs incurred under this paragraph shall
be paid out of
the estate."
[45]
In
Kruger
Van
Rensburg
(Pty)
Ltd t/a Bureau
Trust
Insolvensie
Praktisyns
and
Another
v Grand Palace
Trading
47
(Pty)
Ltd)
[10]
the
Court
held that:
"[2]
The first and second defendants are companies which do business as
insolvency practitioners and they administer insolvent
estates. In
terms of the provisions of the Administration of Estates Act, No. 65
of 1966, read with the
Insolvency Act, No. 24 of 1936
, and section
339 of the Companies Act, No. 61 van 1973, only natural persons can
be appointed by the Master of the High Court to
administer estates
and a legal entity is precluded from being appointed as such. A
practice therefore, inevitably, evolved
(
Grove v
Marica Board of Executors
Ltd.
1908 T.S. 11
;
Bekker
v Republiek
Trustees (Edms) Bpk. en In Ander
1988(2)
SA 250 (T)), in terms whereof companies, such as
the defendants, make use of "fronts" i.e. natural persons
who are employed
by them to be formally appointed by the Master in
compliance with the various legal provisions. The companies then
administer the
estates on behalf of their employees whom the Master
appointed and later benefit from the estates through the payment of
the fees
allowed by the regulations out of the estates to the persons
appointed to administer the estates."
[46]
In
Boland
Bank Ltd v Rop,
Wacks,
Kaminer and Kriger,
[11]
the
plaintiff, Boland
Bank Ltd,
purporting to act
in its
capacity as executor
in a
deceased
estate,
instituted action for payment by defendant
of an
amount allegedly due to the deceased
estate.
Boland Bank then sought to amend
i
ts
summons
by
substituting,
for
the
description
of
plaintiff,
one
Jordaan
as
the
nominee
of Boland
Bank in his capacity
as executor
of the
deceased
estate. The
application
for
an
amendment
was
dismissed
by the
magistrate
and
it was
argued
on
appeal
that
the
magistrate's
judgment
was
correct
inasmuch
as Boland
Bank and Jordaan were two separate and distinct
personae;
that
this was
not merely
a case of misdescription;
and that
the amendment sought to introduce a new plaintiff. In
dealing
with this argument the Court held
that:
"I
do
not
agree
that
the
amendment
involves
the
substitution
of
one
persona
for
another
as
plaintiff.
From the
beginning
the
action
was
one
by the
executor
in the
estate
of
the
late
Anne
Tobias.
Boland Bank
did
not
purport to
sue
in
i
ts
personal
capacity:
it
sued
in
its
capacity
as
executor
in
the
deceased
estate.
This
was
a
misdescription of
the
plaintiff;
the correct
plaintiff was Jordaan who had
been
nominated
by the
bank
in terms
of s
16
of the
Administration
of
Estates Act
66
of 1965
,
and to whom
the Master
had, pursuant to such
nomination,
issued
letters of administration.
The
amendment
sought to
rectify the misdescription by substituting the name of Jordaan for
that of the bank as executor.
In this
respect the application for amendment is similar to those in
Yu
Kwam v President Insurance
Co
Ltd
1963
(1) SA 66
(T);
Schnellen
v
Randalia
Assurance
Corporation of
SA
Ltd
1969
(1) SA 517 (NV) and Samente v Minister
of
Police and Another
1978
(4) SA 632 (E)."
[12]
[47]
I am in agreement with the proposition by the appellant that personal
liability, envisaged in
section 35
of the AEA, extends to an agent
appointed by the executor to administer an estate.
[48]
Turning to the issue of admission of liability, there is overwhelming
evidence of admission of liability by the respondent.
The respondent
has, except for the denial of perpetrating the fraud against the
appellant, acknowledged liability for the amount
in question and also
acknowledged contravention of
section 35
of the AEA. He further
conceded having made payments to various parties from the funds.
[49]
The issue of whether the respondent played any role in the fraudulent
conduct of his staff, is in my view irrelevant. What
is relevant and
significant is the fact that he acknowledged personal liability for
the amount paid into the late estate account
and how it was
misappropriated by being paid out in contravention of the provisions
of the AEA.
[50]
The evidence supporting the proposition that the respondent
personally acknowledged liability can be found in both his affidavits
and the correspondence between the parties. In this respect he stated
at paragraph 6 of his second answering affidavit that:
"6.1
I offered to repay the monies if given time and again offer to do so,
but not admitting that I was the party to the fraud
and
transgressions as set out in the Affidavit of Appellant."
[51]
In the email he addressed to the appellant on July 2015 he stated the
following:
"Dear
Mr Mohamed
I
refer to the above matter and to our consultation on the 2nd July
2015 at your offices.
I
am once again asking you and your client to afford me an opportunity
to have this matter resolved without going to Court, at least
on
urgent basis.
I
have sold the property in Winchester for R1 750 000.00.
I
am willing to pay the proceeds of the purchase price of the property
situated at [...] W. as soon as it is registered. I therefore
request
that you consider removing the matter on the urgent Court Roll while
we explore the ways and means of paying off your client's
claim.
I
am willing to sign an acknowledgement of debt for the balance of your
client's claim, which would be liquidated with be sure (sic)
a period
of time . .
[52]
In the supplementary answering affidavit he stated that although his
"Opposing Affidavit" was late he honestly believed
that the
offer he had made would have been accepted by the appellant. This is
the offer in which the respondent undertook to utilize
the proceeds
of the sale of his immovable property at W. H. Extension […]
to settle the appellant's debt.
[53]
A further confirmation of acceptance of liability by the respondent
can be construed from the letter dated 7 July 2015 wherein
the
conveyancing attorneys who were involved in the sale of the property
at W. H. extension 3 stated the following:
"4.
We note the cession of equity to you by the Seller (on an out
-and-out session basis), entered into between and by the
Seller and
your good self. Accordingly we irrevocable undertake and bind
ourselves to pay your client the equity surplus, an amount
of R 630
486.22 excluding any bridging deductions, deriving from the aforesaid
transaction on the date of registration of same.
We further confirm
that we hold such equity in trust on behalf of SI & NL MABENA.
We
undertake to pay the ceded equity surplus into the banking furnished
to us by yourselves as soon as reasonably possible after
registration."
[54]
As alluded to earlier, the amount claimed by the appellant is R1 361
454.44. The sale amount in the above property was indicated
as R1 750
000. On a simple calculation taking into account, the commission on
the purchase price, the outstanding debt on the property,
the
proceeds of the sale could be estimated at R377 375. This is the
amount that would have been available to distribute to the
appellant
which would have obviously been insufficient to settle the
indebtedness of the respondent to the appellant.
[55]
There can be no dispute in light of the above that the respondent
unlawfully distributed and misappropriated the funds from
the late
estate account of the deceased. In this respect he stated the
following in his answering affidavit that:
"The
respondent complied with the instructions (referring to payments
made) without obtaining the Master's consent to do so.
I therefore
conceded that the respondent did not comply with the provisions of
section 35 of the Administration of Estate Act."
[56]
There is thus no doubt that the respondent acted with the full
knowledge that his conduct was unlawful and did so wilfully.
He did
this, even on his own version, in his personal capacity and not as
the director of Morua.
[57]
In light of the above the Court below erred and incorrectly
concluded, as it did, that the respondent was not personally liable
for the distribution and misappropriation of the funds because he
acted in his representative capacity. The Court also erroneously
concluded that the claim of the appellant was not liquidated as
envisaged in section 9(1) of the Act.
[58]
In my view, based on the above analysis, the appellant has
successfully made out a case for the confirmation of the provisional
sequestration order. I see no reason in the circumstances of this
case why costs should not follow the results.
Order
[59]
In the premises the following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court below is replaced with the following order:
2.1
The provisional sequestration of the respondent is confirmed and
accordingly the respondent
is finally sequestrated.
__________________
E
Molahlehi
Judge
of the High Court
of
South Africa, Pretoria
I
agree
__________________
SP
Mathie
Judge
of the High Court
of
South Africa, Pretoria
I
agree
__________________
N
Davis
Acting
Judge of the
High
Court of South
Africa,
Pretoria
[1]
Act 24 of
1936 (the
Act).
Section
9(1)
provides:
"(1)
A creditor (or his agent) who has a liquidated claim for not less
than fifty pounds, or two or more creditors (or their
agent) who in
the aggregate have liquidated claims for not less than one hundred
pounds against a debtor who has committed an
act of insolvency, or
is insolvent, may petition the court for the sequestration of the
estate of the debtor."
[2]
66 of
1965
(AEA).
[3]
See
Stephane
v
Khan
1917
CPD 24
and
Kleynhans
v
Van
der
Westhuizen
NO
1970 (2) SA
742
(AD)
at 750 A-B.
[4]
[1990] ZASCA
5;
1990 (2)
SA 665 (AD).
[5]
Id at para 57.
[6]
Google translation:
"It
seems to me as obvious that where the debtor stole fixed sum of
money from an applicant, the amount of the latter's progress,
based
on the commission of the theft, of course, is determined with
certainty. The amount situation requires of nothing by h
court or
deal with the thief, since it determines otherwise safely 58. Where
evidence that the theft geleeg, the amount of damages
is also
evidence, and that certain amount immediately after the theft due.
The thief is from the date of the theft in mora (Wessels,
Law of
Contract in SA, 2nd. Ed.. Para 2864) "
[7]
2012 (6) SA 329
at para 35.
[8]
1998 (2) SA 554
(T) at 557.
[9]
Id.
[10]
[2007] ZAGPHC
97.
[11]
1989 (3) SA 912 (C).
[12]
Id at 914.