Silvasale Events and Catering CC v Ideal Drive Pre-owned Cars CC (2015/21192) [2017] ZAGPPHC 145 (25 April 2017)

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[2017] ZAGPPHC 145
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Silvasale Events and Catering CC v Ideal Drive Pre-owned Cars CC (2015/21192) [2017] ZAGPPHC 145 (25 April 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Date
of hearings:
9
and 10 November 2016: trial
31
March 2017: Interlocutory application
Case
number: 2015/21192
Reportable
Of
interest to other judges
Revised.
25/4/2017
In
the matter between:
SILVASALE
EVENTS AND CATERING
CC

Plaintiff
and
IDEAL
DRIVE PRE-OWNED CARS
CC
Defendant
JUDGMENT
BRENNER
AJ
1.
The trial in this matter involved claims by the
plaintiff, Silvasale Events and Catering CC ("Silvasale"),
against the
defendant, Ideal Drive Pre-Owned Cars CC ("Ideal
Drive"), based on alternative causes of action, in the first
instance,
based on the law of contract, and in the alternative, based
on the law of unjust enrichment.
2.
An analysis of the pleadings is warranted, to
provide the context against which the claims were brought, and to
clarify the material
issues in casu.
3.
Silvasale contends as follows. In or about July
2014, and at Pretoria, Silvasale, represented by
"a
duly authorised person",
purchased a
2013 white Mercedes Benz 63 AMG model,with registration number JBK
[…] NW ("the Mercedes Benz"), fromIdeal
Drive, for a
purchase price of R903 900,00, including Vat. Silvasale attaches an
invoice issued byIdeal Drive dated 8 July 2014,
which identifies the
purchaser as Silvasale and the delivery address as that of Silvasale.
Silvasale avers that it made a part
payment toIdeal Drive of R746
000,00 on 4 July 2014.
4.
Silvasale tenders payment of the balance of the
purchase price, of R157 900,00 on delivery of the Mercedes Benz
byIdeal Drive.In
the alternative  to this,
"in
the event of the Defendant failing to deliver the motor vehicle to
the Plaintiff',
Silvasale avers thatIdeal
Drive has been enriched in the amount of R746 000,00, that the
enrichment occurred at the expense of Silvasale,
such enrichment was
unjustified, and at no time was Silvasale indebted toIdeal Drive in
the amount of R746 000,00, nor did Silvasale
have any obligation to
pay such amount toIdeal Drive.
5.
In the result, Silvasale claims, as against deal
Drive, either the delivery of the Mercedes Benz against payment of
the balance
of R157 900,00. Its prayers did not mention the tender to
pay, but this was clarified at the hearing. Alternatively, it claims
repayment of the sum of R746 000,00. In both instances, costs orders
on the attorney and client scale are sought.
6.
Ideal Drive's defence, which incorporated facta
probantia, (which nevertheless served to assist with a proper
analysis of the issues),
is as follows. The grounds for the claims of
Silvasale, founded on an agreement of sale, alternatively, unjust
enrichment, are
denied in general terms.
7.
Without derogating from the generality hereof,
however, deal Drive made specific allegations in justification
hereof.Ideal Drive
conducted business as a pre-owned motor vehicle
dealer. During or about May 2014, one Nico Kruger ("Kruger"),
instructed
Ideal Drive, represented by M Schmidt ("Schmidt''),
to source a Range Rover Evoque motor vehicle ("the Evoque")
for Kruger, which he wanted to acquire for his fiancee, Angela
Slabbert ("Slabbert").
8.
Ideal Drive found an Evoque and, on the
instruction of Kruger, issued a cash invoice on 27 June 2014, for
delivery of the Evoque
to Kruger. Hereafter, on Kruger's instruction,
the invoice dated 27 June 2014 was cancelled on about 1 July 2014,
and a new invoice
issued to a company styled "No 4 Distributors
(pty) Ltd" (this company is referred to as "No 4
Distributors"
or "No 4 Distributors (Pty) Ltd",depending
on context). This invoice contained details of a deposit for R38
651,67, representing
the trade in value of Slabbert's old car, a Mini
Cooper.
9.
On 4 July 2014, again on the instruction of
Kruger, the invoice dated 1July 2014 was cancelled and substituted
with an invoice issued
to Slabbert for delivery to Slabbert. On the
same date, being 4 July 2014,Ideal Drive received payment by EFT of
the amount of
R746 000,00. This amount exceeded the balance owing for
the Evoque, which was R696 648,33.
10.
When Ideal Drive made an enquiry as to why the
amount paid failed to accord with what was in fact payable, Kruger
explained that
such overpayment constituted an error and that the
overpaid amount should be refunded to the bank account of Slabbert.
Ideal Drive
acted on such instructions and duly paid the credit to
Slabbert. To summarise, therefore, Ideal Drive received and accepted
payment
of the sum of R746 000,00 as payment for the purchase of the
Evoque.
11.
Concerning the Mercedes Benz, deal Drive asserted
as follows. On 25 June 2014, Kruger instructedIdeal Drive to source a
Mercedes
Benz C63 AMG motor vehicle for Kruger. He informedIdeal
Drive that this vehicle would be exported to New Zealand for a
renowned
All Blacks rugby player, one Dann Carter. On 25 June 2014,
deal Drive successfully sourced a Mercedes Benz from Struben Street
Motors and informed Kruger accordingly.
12.
On 27 June 2014, on instructions from Kruger,
deal Drive issued an invoice to No 4 Distributors for the Mercedes
Benz. Hereafter,
this invoice was cancelled and substituted on 8 July
2014 with an invoice made out to "Silva Sale Events", with
the Mercedes
Benz being deliverable to the address of Silva Sale
Events, based on a copy of a business card of one Marco Sale
("Sale'')
of Silva Sale Events, which Kruger had sent toIdeal
Drive. The invoice dated 8 July 2014 for the Mercedes Benz was
created on 8
July 2014, four days after payment by Silvasale by EFT
of the sum of R746 000,00, accepted by Ideal Drive as payment for the
Evoque.
The invoice is for a total price of R903 900,00.It does not
reflect the deposit of R746 000,00 which Silvasale had paid on 4 July

2014.
13.
Following enquiries by Ideal Drive to Kruger
concerning payment of the Mercedes Benz, on 9 July 2014, 11 July
2014, 15 July 2014,
18 July 2014 and 28 July 2014,Ideal Drive
cancelled the invoice to Silvasale for the Mercedes Benz and notified
Struben Street
Motors of the cancellation of the transaction.
14.
At inception of proceedings, I was informed that
Silvasale's locus standi to sue was no longer in issue. It was
confirmed that the
parties had agreed that discovered documents would
serve as evidence of what they purported to be, and letters, emails
and faxes
would be regarded as having been sent and received by the
addresser and addressee, without the veracity of the content of the
documents
being admitted.
15.
In my perusal of the pretrial documents, I noted
the admission by Silvasale in its response to Ideal Drive's enquiries
in terms
of rule 37(4)(b), dated 3 May 2016, that Silvasale
"does
not allege any agreement of sale",
between
the plaintiff and the defendant, this in respect of the sale of the
Mercedes Benz. Silvasale also alleged in the same response
that
"Nico
Kruger acted as an independent marketer/consultant to the Plaintiff
during the period from or about May 2014
-
October 2014."
16.
The answer of Silvasale toIdeal Drive's question
as to the grounds upon which Silvasale sought attorney and client
costs, and grounds
for why such an order should. not be granted
against Silvasale, ifIdeal Drive was successful in its defence to the
action, are
inciteful:
"Based on the
dishonesty of the defendant and/ or the lack of any proper defense
(sic) pleaded by the Defendant and/ or the
defendant's receipt of
R746 000.00 and it's (sic) refusal to repay same to Plaintiff and/ or
Defendant's negligence in paying amount
to an unauthorised person
and/ or Defendant's negligence in ascertaining from whom it received
a payment of R746 000.00 and/ or
Defendant's negligence in properly
ascertaining the locus standi and financial capabilities of Kruger
and Slabbert and any relationship
they might have with Plaintiff."
17.
Silvasale denied that an attorney and client
costs order against it was justified because it had
"acted bona fide
in this matter unlike the behaviour of the Defendant."
18.
On 10 November 2016, after the parties had closed
their cases, I reserved judgment subject to the parties serving heads
of argument
by 25 November 2016.
19.
On this date, Ideal Drive filed heads of argument
but Silvasale failed to do so. Instead, Silvasale served a notice to
amend its
l aims by introducing two further alternative claims. These
claims were the following, namely:
i.
If
the Court found against Silvasale on the sale of the Mercedes Benz
and on the claim for unjust enrichment, then it contended
that, on or
about 4 July 2014, it paid for and purchased a Land Rover Evoque from
Ideal Drive for R746 000,00, and Ideal Drive
failed to deliver this
vehicle to it;
ii.
If the Court found that the above purchase did
not occur, then Silvasale made a payment toIdeal Drive on 4 July 2014
of the sum
of R746 000,00 for the purchase of the motor vehicle, that
deal Drive unlawfully misappropriated this amount towards the
purchase
of the Land Rover Evoque by Angela Slabbert and/or Nico
Kruger, and paid R49 351,67 to Slabbert;Ideal Drive acted
"negligently alternatively fraudulently"
in using the sum of R696 648,33 for the
purchase of the Land Rover Evoque and paying R49 351,67 to Slabbert
when it was aware or
should reasonably have been aware that the R746
000,00 was paid by Silvasale.
20.
Ideal Drive objected to the proposed amendment
and this necessitated a substantive application for leave to amend
Silvasale's particulars
of claim. Heads of argument were filed by
both parties on 24 March 2017. The application was argued before me
on 31 March 2017.
Idismissed the application, with costs on the
attorney and client scale. My reasons herefor appear below. Silvasale
was directed
to serve its heads of argument in the main action by 7
April 2017 and it duly did so.
21.
I will proceed to traverse the evidence in the
trial proceedings in November 2016 and will thereafter deal with the
amendment application.
22.
Silvasale led the evidence of three witnesses,
namely, Pedro Maria de Magalhaes E Silva ("Silva"), Silva's
son, Jean Michel
Silva ("Jean Michel"), and Carol Ann Dell
("Dell"). deal Drive adduced the evidence of Kruger and
Melande Schmidt
("Schmidt").
23.
I have analysed the witnesses' evidence insofar
as it pertains to the material issues as raised by the pleadings. I
have kept to
a chronological sequence of events for purposes of
coherence, so that, in the main, the summary of evidence integrates
questions
posed in chief, under cross-examination, and in
re-examination.
24.
Silva testified that he was currently the sole
member of the plaintiff, Silvasale. Previously, he and Marco Sale
("Sale")
were equal members of the corporation, as at July
2014. The core business of Silvasale was to provide catering services
to the
Wanderers Old Boys' Club.
25.
Silva said he had met Kruger through a friend,
one Enrico, (it later transpired from Kruger's evidence that his
surname was "da
Foncio"), (who was a friend of Sale's), who
had vouched for Kruger.In 2014, Kruger approached him with a business
proposition,
which was to acquire motor vehicles in South Africa for
export to New Zealand, on the basis that Silvasale and Kruger would
split
the profits equally. Kruger told him that a rugby player,
Richie McCall, ("McCall"), was looking for a Mercedes Benz
C63, and that this could constitute their first transaction.
Silvasale had never been involved before in business of this nature.
26.
In early July 2014, Kruger told Silva that he had
found the Mercedes Benz that McCall was looking for, and that Silva
had to make
payment of a deposit of R746 000,00, urgently, to secure
the vehicle. Kruger said that the balance of the purchase price could
be paid once he had received a call to confirm that the vehicle was
ready for delivery. Kruger gave Silva the bank account details
of the
car dealer who would supply the vehicle. Silva testified that, on 4
July 2014, in good faith, Silvasale made such payment,
by electronic
funds transfer, to the bank account given by Kruger. He made the
payment without an invoice fromIdeal Drive. Silva
was shown a payment
advice produced by the bank ofIdeal Drive, namely Absa, containing a
payment reference which Silva could not
dispute having made. The
payment notification expressly notes a payment reference as being:
"SILVASALE NO 4
DISTRIBUTERS PTY".
27.
He said he had asked Silvasale's bookkeeper,
Dell, to obtain an invoice for the Mercedes Benz. He recalled
receiving the invoice
for the vehicle on 8 July 2014. In
cross-examination, Silva conceded that maybe the invoice had been
obtained by Kruger and Kruger
had given it to Dell on 8 July 2014. It
is noteworthy that this invoice provided no credit for the amount
already paid by Silvasale.
28.
Moreover, there is no client signature on this
invoice even though provision is made therefor. Silva did not suggest
that Silvasale
had signed the invoice of 8 July 2014, in acceptance
of its terms, with any understanding that, thereby, a contract came
into place.
29.
He was referred to the communications between
Kruger and Schmidt which proved that Carol (Dell) made a call to
Ideal Drive on 20
October 2014. According to the whatsapp transcript
before Court, on 20 October 2014, Schmidt had told Kruger that
Kruger's bookkeeper
(Dell) had asked for stuff from Schmidt
concerning the purchase of a Mercedes Benz. The gist of Kruger's
reply was that Dell was
"deurmekaar'
and
that Schmidt should tell Dell to liaise with him, because he was her
boss, and that Dell was about to lose her job and was trying
by all
means to keep it. Schmidt appeared from the transcript to accept
Kruger's word, and said she would arrange to tell Dell
to deal
directly with Kruger. Silva could only reply that he had no knowledge
of these goings-on behind his back, but persisted
in his stance that
he had seen Ideal Drive's invoice by B July 2014.
30.
Silva confirmed that the authorised agent of
Silvasale for the purchase of the Mercedes Benz for McCall was
Kruger. He had no idea
of the identity of the person who had
representedIdeal Drive in this transaction. He had never spoken to
any person at Ideal Drive.
He had made the payment on the
"say-so"
of Kruger. Silva conceded that he
"did
not think that Kruger represented Ideal Drive"
in
the transaction. Kruger had never told him that he did.
31.
Silva mentioned some other bad experiences with
Kruger: Silvasale had paid for the hire of a private plane to
transport the Eastern
Province rugby union to Kimberley, but the
rugby union had paid the cost of some R450 000,00 for the trip, to
Kruger, instead of
Silvasale. Silva had entrusted his watch to Kruger
who had promised to arrange for it to be repaired by someone he knew,
but it
was never returned. Silva had preferred a theft charge against
Kruger for this. Silva never testified about the sequence in which

the business dealings with Kruger had transpired. An incident on 4
October 2014 had resulted in a breakdown in the relationship,
after
Silvasale had arranged for the use of his hospitality services, at
the behest of Kruger, for the New Zealand/South Africa
rugby match at
Ellis Park, after receiving a purchase order from
"Business
Connection for R1,8 million''.
Silvasale had
spent about Rl,2 million on hospitality services and when it looked
to Business Connection for payment, the latter
informed Silva that
the original order was false and forged, and refused to pay
Silvasale.
32.
After paying the sum of R746 000,00 on 4 July
2014, Silva said that he made several phone calls to Kruger, who kept
stalling him,
mainly on the pretext that the transaction was being
delayed due to export requirements. Silva never contacted Ideal Drive
directly
between July 2014 and the time that his son, Jean Michel,
went to the premises of Ideal Drive.
33.
Under cross-examination, he was shown documents
and whatsapp communications between Kruger and Schmidt of Ideal
Drive, between 17
May 2014 and 6 November 2014, from which it was
apparent that Kruger had told Schmidt that the payment of R746 000,00
was for an
Evoque acquired for Kruger's fiancee. On the same day of
Silvasale's payment, being 4 July 2014, Schmidt had clarified with
Kruger
that the payment was for the Evoque, that the money had come
from overseas funds and Schmidt had assumed that currency
fluctuations
had resulted in the overpayment.
34.
The amount overpaid was credited on the same day,
4 July 2014, to the account designated by No 4 Distributors (Pty) Ltd
in writing,
namely, that of Slabbert. All Silva could say in reply
was that he had no knowledge of these communications, or of what
Silvasale's
agent, Kruger, was telling Ideal Drive at the time. Silva
was constrained to admit that the evidence revealed that what
Silvasale's
agent, Kruger, had told Silva about the R746 000,00 being
a deposit for the Mercedes Benz was contrary to what Kruger had told
Schmidt, namely, that the money was paid to acquire the Evoque for
Slabbert. Silva conceded that, from the perspective of deal Drive,

deal Drive had no intention of selling the Mercedes Benz to Silvasale
and using the payment of R746 000,00 as a deposit on its
purchase
price.
35.
According to Silva, Kruger
"disappeared
around September or October 2014".
He
said that his son, Jean Michel, had gone to the premises of deal
Drive to find out what had happened to the Mercedes Benz. Jean
Michel
reported back that the person to whom he had spoken, who Silva
thought was the bookkeeper, had refused to divulge information
about
the transaction without a warrant. Jean Michel had, however, managed
to establish from Ideal Drive that the money paid by
Silvasale was
used to buy the Evoque.
36.
Counsel for Ideal Drive had asked Silva if
Silvasale had any other relationship with Kruger. Silva answered
that, apart from the
vehicle deal, the hospitality contract at Ellis
Park, the private charter for the eastern Province match, and his
entrusting his
watch to Kruger, this constituted the essence of the
relationship. It was then put to Silva that Kruger would come to
testify that
the sum of R746 000,00 was owing by Silvasale to him for
monies owed from business dealings with Silvasale, and that Silva had
agreed that the payment would be made to settle the debt to Kruger.
Silva denied that Silvasale had ever owed money to Kruger in
all its
business dealings with Kruger.
37.
Counsel for Silvasale objected to the question as
this so-called "set-off" of liabilities to pay for the
Evoque was not
previously raised in the pleadings, nor when Silva was
first cross-examined about the relationship with Kruger. No prejudice
was
suffered by Silvasale owing to this omission. He was afforded the
opportunity to deny that monies were owed to Kruger by Silvasale.

Moreover, on Silvasale's own version, (evidenced by its pretrial
admission), Kruger was a marketer/consultant for Silvasale, from

which the inference may be drawn that he may have had a claim to
payment of monies from Silvasale.
38.
Jean Michel testified that his father asked him
in September/October 2014 to make enquiries about the purchase of the
Mercedes Benz
directly from Ideal Drive. Silva showed Jean Michel a
copy of the invoice dated 8 October 2014 for the Mercedes Benz. When
Jean
Michel arrived at the premises of Ideal Drive in Pretoria, he
first spoke to the receptionist, and was told he should speak to the

owner. He reached Schmidt on her phone and advised her of the
situation. Schmidt told him that the R746 000,00 payment was used
for
the Evoque and not the Mercedes Benz. Jean Michel asked Schmidt for
the documents for the purchase of the Evoque. Schmidt refused
because
she said she had to receive a warrant before making any disclosures.
On 6 November 2014, Jean Michel confirmed that he
had sent a message
to Schmidt asking for the invoice for the Evoque. In his message, he
told Schmidt that she could hold onto correspondence
between her and
Kruger until the issue of a subpoena. He testified that Schmidt did
not reply, whether by phone or email, and the
matter was thereafter
referred to Silvasale's attorneys. It was put to him thatIdeal Drive
responded to his message. He denied
this.
39.
In cross-examination, it was put to Jean Michel
that he had told Schmidt that Kruger had defrauded Silvasale by
millions of rands.
This was not denied. It was put to him that
Schmidt had told him the only transaction involving Kruger which had
materialised was
the one for the purchase of the Evoque. Jean Michel
could not recall whether this occurred. He conceded that his message
to Schmidt
of 6 November 2014 might have occurred on the same day
that he went to visit Ideal Drive in Pretoria.
40.
Dell testified that she had been the financial
manager of Silvasale since 2006 and remained so. Kruger was
introduced to her by
Silva and Sale as a person who would bring them
more business. She said she had been told by Silva that Kruger had
the original
invoice, and, according to Silva, Kruger had apparently
shown it to Silva in June or July 2014. Dell said she had never
received
the original invoice.
41.
According to Dell, Silva had only asked her to
obtain the invoice for the Mercedes Benz in September/October 2014,
and the reason
for this was for Silvasale to account for Vat. She
made a phone call to Ideal Drive and, without clarifying, thought she
had spoken
to
"the owner"
to
ask for it. She was told that this would be done. When it was not
done, she phoned again, only to be told that it could not be
released
without Kruger's permission. But when Dell phoned on the third
occasion, the invoice for the Mercedes Benz was released,
by email
from Ideal Drive. In cross-examination, Dell conceded that her
conversations may have taken place with Jackie Lightfoot,

("Lightfoot"), a secretary employed by Ideal Drive, and not
the owner. It was put to her that Schmidt had just suffered
a
miscarriage and was not in the office at the time. Dell could not
deny this.
42.
The plaintiff, Silvasale, proceeded to close its
case.
43.
Ideal Drive's first witness was Kruger. I
interpose to mention that he was interrogated at length in
cross-examination by Counsel
for Silvasale on issues which were, at
best, peripheral and collateral, and toto caelo irrelevant to the
material issues between
the parties. A modicum of latitude was
extended in this regard, insofar as a credibility finding was also of
value in my assessment
of Kruger's testimony. In the process,
moreover, the questions posed to him about his overall relationship
with Silvasale and purported
business dealings with it, which
allegedly gave rise to Silvasale supposedly owing Kruger money,
fortified my resolve in the conclusions
drawn by me concerning
whether Silvasale had chosen to sue the correct defendant. Of which,
more later.
44.
Kruger testified that he was served with a
subpoena for the prior hearing on 5 May 2016, and thereafter,
indicated his willingness
to Ideal Drive's attorneys to testify
voluntarily in Court. He had had two consultations with Ideal Drive's
attorneys but was not
asked to produce any documents for the trial.
45.
He said he was a CA (SA), and had an MBA from
Edinburgh University and was formerly the CEO of Namaqua Diamonds. He
never practised
as a chartered accountant or became registered as
such. From 2011 until early 2016 he said he had worked as a fulltime
consultant,
and was currently employed by Imperial Holdings as its
CEO in
"logistics, mining, and industrial
supplies".
46.
When working as a consultant, he said he
performed assessments on
"financial
restraints, governance, growth, turnarounds".
To
this end, he worked for two companies. The first company, No 4
Distributors (Pty) Ltd, ("No 4 Distributors"), specialised

in hospitality and tourism. But he was neither a director nor
shareholder of No 4 Distributors. According to a CIPRO search placed

before Court, the directors of this company were Werner Adolph du
Plessis ("du Plessis"), and Madumetja Edward Motale

(''Motale"), According to Kruger, they were the only
shareholders. Kruger said he could not become a shareholder until he

had
"added value".
The
company was registered on 30 June 2014, which was the date on which
du Plessis and Motale became directors.
47.
From 2013 to 2015, Kruger said he was an employee
of No 4 Distributors, but had not signed a written employment
contract. He performed
consultancy services for it. His hourly rate
as an employee of No 4 Distributors was not fixed. He gave No 4
Distributors advice
on corporate finance and potential projects in
leisure and hospitality. Another company, N&JR Brands ZA (Pty)
Ltd, had a wider
scope in general consulting to listed companies
includingImperial and Foschini. (This company did not feature in this
case).
48.
He said he had been introduced to Sale by Enrico
da Foncio in the latter part of 2013, the purpose being to help
Silvasale as a
financial consultant with growing its business. Kruger
said that when he met Silva and Sale, whom he understood to be 50%
members
of their corporation, they talked about the expansion and
restructuring of Silvasale beyond the scope of catering for the
Wanderers
Club.
49.
He admitted that no written agreement was
concluded with Silvasale to confirm the terms of the consultancy
services to be rendered
by him. He spoke of preparing a business plan
but said it was not reduced to writing. Silvasale allegedly agreed to
pay him for
his time and to reimburse him for expenses. But no hourly
rate was agreed and he did not keep timesheets. He asserted that any
payments for services performed and expenses incurred by him were
payable by Silvasale to No 4 Distributors. There was talk of his

taking a one third stake in Silvasale as a third member once he had
"added value".
Silvasale
had also allegedly
"seconded"
him
to talk to a lawyer, du Plessis, (one of the directors of No 4
Distributors), to provide legal advice, for which there were
"many
consultations".
The consultations
related to the
"restructuring of the
business, capital financing, and new projects.
"
50.
Kruger said he tried to involve Silvasale in a
number of new projects including "aquaculture". Kruger said
he introduced
Silva to IP partners but admitted that the project was
never implemented. He said he brought Fedex to Silvasale but could
not assert
that anything came of this. He said he had the invoices
for the services rendered and disbursements incurred by him. When
asked
about the business opportunity presented to Silvasale to export
cars to New Zealand, Kruger could not explain why the project was
not
taken up by the company he worked for, namely, No 4 Distributors. It
was put to Kruger that it was obvious that he had no funds
to pay for
either the Evoque or the Mercedes Benz, to which he replied that he
could have accessed the funds from a foundation
which held money via
an overseas based company called
"Gladeus."
He said he might have also traded in his
existing vehicle, a CLSOO Mercedes Benz.
51.
Kruger said that it turned out that he and
Silvasale had different views about growth, and that the relationship
"fizzled out".
He
said he raised invoices for services and was paid in full by
Silvasale. f any business had developed, he was promised an equity

stake in Silvasale by Silva and Sale. He said he never received any
equity interest because the relationship
"did
not pan out".
When probed further under
cross-examination, he asserted that his arrangement with Silvasale
was that he would receive both equity
and fees.
52.
Kruger subsequently changed his version and went
so far as to say that he and Slabbert and/or a nominee appointed by
either or both
of them would have taken up an equity interest in
Silvasale. This change of version occurred when it was pointed out
that Slabbert
had, after the purchase of the Evoque, applied for
finance throughIdeal Drive to acquire a 2011 Mercedes Benz S63 AMG.
In her application
to MFC, signed by her on 2 August 2014, her total
net monthly income from Silvasale was stated as
"R300
000,00".
Kruger was forced to admit that
this purported income of Slabbert's did not emanate from Silvasale,
and ventured to say that she
still maintained her self-diet clinic
from which income was received, and that the sum of R300 000,00 was
comprised of components
and was not a
"straight
salary"
from Silvasale.
53.
Kruger was asked who the "shareholders"
(or members) of Silvasale were on 2 August 2014, (the date when
Slabbert signed
the MFC form), to which he yet again changed his
version and said that they were
"Pedro
and Marco and either
me
and/
or my wife and/ or nominee."
In the MFC
form, Slabbert had described herself as self-employed at Silvasale
Events and as a
"shareholder"
of
Silva sale, having been so employed for the past five years. She also
described her spouse as self-employed at Silvasale and
as a
"shareholder".
It
merits mention that the papers revealed that Slabbert's applications
for finance to MFC, Wesbank, Barclays and Absa were all
declined. The
comment in the MFC refusal form is enlightening:
"Information at
hand indicates unacceptable high risk Non supportive trade
references".
54.
A special condition on the Wesbank refusal form
mentioned that a valid current payslip verified as original was
required to confirm
Slabbert's net monthly income.
55.
On the subject of the payment of R746 000,00
toIdeal Drive, Kruger said that he had raised an invoice for work
done for Silvasale
in this amount, in the name of No 4 Distributors
(Pty) Ltd. He had performed services for Silvasale from the beginning
of 2014
until around "September/October/November 2014" and
had worked during the week and over weekends on its business. He
could
not explain how the sum of R746 000,00 was calculated. He was
asked if the amount represented his one third share of the profits
of
Silvasale, in answer to which he replied:
'It
was from whatever."
56.
Kruger could not explain how No 4 Distributors
could have performed services for Silvasale in four days, from its
incorporation
on 30 June 2014, to 4 July 2014, (the date when
Silvasale paid Ideal Drive), to justify a debt of R746 000,00. He
said he might
still have a copy of the invoice for this sum on his
system. When probed under cross-examination, Kruger said that the
R746 000,00
was owing to himself or his "nominee". He did
not know when he gave the invoice for the sum of R746 000,00 to
Silvasale.
When probed, Kruger could not identify a single business
opportunity brought by him to Silvasale which had materialised.
57.
He had confirmed that the entity which had raised
the invoice to Silvasale for consultancy services was No 4
Distributors (Pty)
Ltd. When asked if he had received permission from
the directors of No 4 Distributors to divert money payable to it, on
Kruger's
version, to buy a vehicle for Slabbert, Kruger said he had
received oral permission from them, after No 4 Distributors had been

registered on 30 June 2014. (It merits mention that the Evoque was
ordered from Ideal Drive on 27 June 2014, three days before
No 4
Distributors was formed.)
58.
Kruger said he had met Melande Schmidt of deal
Drive through a friend of his fiancee's, Slabbert. This was in
April/May 2014. He
contacted Schmidt with the purpose of acquiring a
Landrover Evoque for Slabbert, against the trade-in of her Mini
Cooper. He said
he had married Slabbert on 14 February 2014. The
Evoque was paid for by Silvasale, by agreement with Silva, in
discharge of Silvasale's
liability to him for consultancy services
rendered. The Evoque was registered in Slabbert's name as the owner.
59.
Kruger was referred to the whatsapp transcript
dated 4 July 2014, between him and Schmidt.In a message to Schmidt,
Kruger told her
that the sum of R746 000,00 would be paid to Ideal
Drive. It was uncontested that Schmidt, as an aide memoire, had
labelled Kruger
in her cell phone by correlating his name with the
vehicle that he was interested in.
60.
The transcript reads as follows:
"04 Jul, 11:42
-
Melande Schmidt: Ok. Why such weird amount?
More than evoque but less than C63?
04 Jul, 11:47
-
Nico Kruger Evoque: That's what the transfer
came in from
overseas.
you can just pay me the diff. It's for the evoque.
04 Jul, 11:47
-
Melande Schmidt: Ok.
04 Jul, 11:48
-
Melande Schmidt: when will C63 be happening.
04 Jul, 12:01
-
Nico Kruger Evoque: Tmrw."
61.
When asked why he had told Schmidt that the funds
came from overseas, Kruger explained that this was meant to
"keep
Melande calm."
The overpayment was paid
into Slabbert's savings account on 4 July 2014. The Evoque was
delivered to Slabbert on 5 July 2014 at
the Brooklyn Mall.
62.
Kruger confirmed having been mandated by Silva
and Sale to source the Mercedes Benz for export to New Zealand.
Kruger stated that
he had asked Schmidt to raise an invoice for the
Mercedes Benz as he presumed at the time that the project would
proceed. Both
Silva and Sale had confirmed to him that Ideal Drive
could raise the invoice. The Vat number of Silvasale was given to him
by either
Silva or Sale, and Sale had given him his business card.
63.
Kruger testified that, when he first asked
Schmidt to source the Mercedes Benz, he had asked for the invoice to
be made out to cash
with delivery to No 4 Distributors (Pty) Ltd.
This took place on 27 June 2014. He later asked her to change the
invoice to reflect
the addressee as Silvasale and delivery to
Silvasale. His reason being that, in the interim, Silvasale had
accepted the project.
He said he physically handed over this invoice
dated 8 July 2014 to the financial controller of Silvasale, Dell, as
he regularly
visited Silvasale's offices.
64.
The case was adjourned to the following day while
Kruger was under cross­ examination. He was called upon by the
Court to use
his best endeavours to procure the following documents,
namely:
i.
All invoices raised by Kruger and/or No 4
Distributors (Pty) Ltd to Silvasale for services rendered during 2013
and 2014;
ii.
The most recent annual financial statements of No
4 Distributors (Pty) Ltd, if the directors permitted this;
iii.
Kruger's personal bank statements for all bank
accounts conducted by him, including those at Capitec and RMB, from
February 2014
to December 2014;
iv.
Kruger's personal income tax returns and
assessments for the tax years to February 2014 and February 2015.
65.
On his return to Court, Kruger brought none of
these documents, save for a bank statement dated 4 November 2016 from
RMB showing
a debit balance of R3 042 285,47, and a miscellany of
degree and other certificates indicating that he had received a
B.Comm degree
in 1994, a certificate in the theory of accounting in
1996, and was a member of the Institute of Chartered Accountants (SA)
in
2001. His excuse for not bringing any of the documents called for
was that he had been unable to access them in the time made available

to him.
66.
Schmidt was the last witness for Ideal Drive. She
testified that she and her husband, Philip, were equal members of the
corporation.
Its business was to buy and sell used vehicles, 70% of
the business being with franchisees and 30% with members of the
public.
67.
Schmidt had met Kruger in May 2014 through some
close friends of her and her husband's in their complex. Her contact
with Kruger
extended from 17 May 2014 until 6 November 2014. During
this period, she met him only twice. The rest of the time she
communicated
with him via whatsapp. Kruger discussed the purchase of
several vehicles with Schmidt but only one sale materialised, the one
for
the Evoque. She testified that in all her dealings concerning the
purchase of vehicles from Ideal Drive's dealership, she had had
no
contact with Silvasale, whether represented by Sale or Silva, until
the phone call from Dell on 20 October 2014.
68.
The whatsapp conversations with Kruger started on
24 May 2014 over the purchase of an Evoque for a birthday present for
Kruger's
"girlfriend", Kruger insisting that the car should
be black. Several Evoques were sourced but were not palatable to
Kruger.
When she asked Kruger on 19 June 2014 whether it was to be
financed, he answered in the negative.
69.
On 25 June 2014, Kruger brought up the subject of
the Mercedes Benz C63 AMG, four door, with less than 20 000 km
on the clock,
any year from 2010 upwards. Schmidt said she would try
to find one. On the same day, Schmidt found a 2013 Mercedes Benz C63
AMG
diesel with 2 000 km on the clock, for R899 000,00, and duly
notified Kruger. This fact is corroborated by an invoice issued
to
Ideal Drive by Struben Street Motors, dated 26 June 2016, for the
sale of a C63 for R850 000,01.
70.
On 26 June 2014, Schmidt asked Kruger if she was
to invoice the Mercedes in his name and the Evoque in Slabbert's
name, to which
Kruger said that the Evoque was to be registered in
Slabbert's name, and the Mercedes in someone else's name, for
immediate export.
71.
On 27 June 2014, after receiving instructions
from Kruger in a whatsapp on 26 June 2014, Schmidt testified that
Ideal Drive issued
an invoice for the Mercedes Benz to cash, in the
name of No 4 Distributors (Pty) Ltd.
72.
On 26 June 2014, Schmidt found a brand new Evoque
from Land Rover Waterford, through an established connection. deal
Drive paid
Waterford a holding non refundable deposit of R10 000,00
on the Evoque to secure it. This deposit would be set off against the
trade in value of Slabbert's Mini Cooper, which was collected from
Slabbert's home on 28 June 2014. Kruger confirmed that he was
happy
with this Evoque.
73.
The first invoice issued by Ideal Drive on 27
June 2014, for the Evoque, was for cash, with delivery to Kruger at
his address in
Waterkloof Heights. Then it was substituted, on
Kruger's instructions, on 1July 2014, to cash, with delivery to No 4
Distributors
(Pty) Ltd, at 833 Stanza Bopape Street, Arcadia. The
trade in value of the Mini was included in this invoice.
74.
Between 27 June 2014 and 4 July 2014, Kruger
failed to come up with payment for either the Mercedes Benz or the
Evoque, and Schmidt
resolved to put pressure on him. Kruger's pretext
for late payment in a whatsapp dated 28 June 2014, was that the EFT
was
"from Switzerland to SA".
Also
on 28 June 2014, he informed Schmidt that the
"NZ
business will be
continuing
because all the players including Ritchie Mccaw, Sonny Bill Williams
and Ma'a Nonu have enquired about second hand demos".
75.
On 29 June 2014, Schmidt told Kruger that the
price for the Evoque would increase by R25 000,00 the following day.
She admitted
that this was a sales tactic to expedite payment. She
said she also had to preserve her business credibility with
Waterford. On
2 July 2014, Schmidt suggested that Kruger should at
least send her proof of transfer of the funds into Kruger's account
and she
would say it was from a company or it was her money,
commenting
"I hate this lying."
76.
Eventually, on 4 July 2014, Kruger told Schmidt
the money would be paid that day. He asked her for the amount and
Schmidt replied
that it was R696 648,33 for the Evoque and R903
900,00 for the Mercedes Benz. She initially gave a total figure for
both cars,
being under the impression that the funds coming from
overseas would pay for both the Evoque and the Mercedes. On the same
day,
Kruger informed her that R746 000,00 would be paid, and she was
told that the figure was incorrect because the money came from
overseas.
77.
At 12:46 on 4 July 2014, Schmidt said that she
received a message from her bank, Absa, to inform her of the payment
of R746 000,00
by EFT. The reference on the sms was quoted as
"SILVASALEN04DISTRIBUTERSP1Y". At the hearing, a printout
of the payment
produced by Absa corroborated this assertion. She
testified that this confirmed to her that the money was intended for
the purchase
of the Evoque.
78.
An invoice for the Evoque to No 4 Distributors
(Pty) Ltd had been issued by Ideal Drive on 1July 2014. Because of
this, before making
the refund of the overpayment, Schmidt had
insisted that she receive a written instruction from No 4
Distributors (Pty) Ltd to
pay the credit balance of R49 351,67 into
the savings account of Slabbert.
79.
This is corroborated by a document signed by
Kruger on behalf of the aforesaid company.
80.
A bank statement of Ideal Drive was referred to
by Schmidt in regard to which she confirmed the following
transactions on 4 July
2014, namely:
i.
Payment of the sum of R746 000,00 toIdeal Drive;
ii.
Payment of the sum of R665 000,00 fromIdeal Drive
to Land Rover Waterford;
iii.
Payment of the sum of R49 351,67 to Slabbert's
bank account.
81.
Kruger then asked Schmidt to change the Evoque
invoice, for the third time, to reflect the sale to Slabbert and the
delivery address
to Slabbert. Schmidt testified that it was not
unusual for a customer to ask her to change the details of the
purchaser and/or
owner of the vehicle. This invoice, dated 4 July
2014, was signed by Slabbert, together with a written offer to
purchase, when
the Evoque was delivered to her on 5 July 2014. This
was standard procedure for Ideal Drive.
82.
On 7 July 2014, Schmidt informed Kruger that she
was
"getting pressure regarding C63".
Kruger replied that he was
"getting
export paperwork ready",
but the
transfer would be done in the next day or two. He asked Schmidt to
issue the invoice to the entity described in a business
card sent to
her, and provided a Vat number. The business card was Marco Sale's
card with the name of "Silva Sale Events"
on it. When
Schmidt asked whether she should email the invoice to Marco, (that
is, Sale), Kruger told her to rather send it to
him instead.
83.
An invoice dated 8 July 2014 was made out to
Silva Sale Events with delivery to Silva Sale Events, for the
purchase of the C63 AMG
Mercedes Benz for R903 900,00. At this
juncture, Schmidt testified that she was led to believe by Kruger
that he was a partner
in the business of Silvasale. She had no reason
to disbelieve him.
84.
On 29 July 2014, Kruger maintained that he was
"still serious"
about
buying both the C63 and S63 Mercedes Benz vehicles, but that he had
had
"issues bringing more money in".
85.
In late July 2014, Kruger asked Schmidt to source
a Mercedes Benz S63 for purchase in Slabbert's name, on the basis
that this purchase
would be financed. On 2 August 2014, Slabbert had
completed the credit application form and submitted same to Ideal
Drive. It is
plain from the papers that, by 6 August 2014, Slabbert's
applications for finance on the purchase of the S63 Mercedes Benz had
been declined.
86.
Further communications between Schmidt and Kruger
went dead on 15 August 2014, when it became apparent to Schmidt that
the purchase
of the C63 and S63 was not going to happen. A letter
dated 12 December 2014 from Struben Street Motors was produced to
confirm
that the sale of the Mercedes C63 AMG registration number JBK
[…] NW was never completed.
87.
Then, on 20 October 2014, Schmidt said thatIdeal
Drive's bookkeeper, Lightfoot, received a phone call from Silvasale's
bookkeeper,
(Dell), to ask for the invoice for the Mercedes Benz C63.
88.
In a whatsapp on this date, Schmidt told Kruger
that Kruger's bookkeeper had asked for
"stuff'
from Schmidt concerning the purchase of a
"Mercedes Benz".
The
gist of Kruger's reply was that Dell was
"deurmekaar"
and that Schmidt should tell Dell to liaise
with him, because Kruger was "her boss", and that Dell was
about to lose her
job and was trying by all means to keep it. Schmidt
accepted Kruger's word, and said she would arrange to tell Dell to
deal directly
with Kruger.
89.
On 6 November 2014, Jean Michel Silva arrived at
the premises ofIdeal Drive and spoke to Lightfoot, who gave him
Schmidt's phone
number, because Schmidt was out of office. Schmidt
said she told Jean Michel that only the Evoque had been sold and that
she could
not disclose any documents to him as the transaction was
with Slabbert. She said that Jean Michel informed her that Kruger was
a
"skelm"
and
that in six months, Kruger had stolen about R3,9 million from
Silvasale.
90.
On the same day, at 14:41,Jean Michel sent
Schmidt a message to ask for the invoice for the Evoque, saying that
SilvaSale had a
right to this, and that correspondence between Kruger
and Ideal Drive would be obtained under subpoena. At 04: 54pm on 6
November
2014, Lightfoot of deal Drive sent a copy of the invoice for
the Evoque to the email address given by Jean Michel.
91.
On 1 December 2014, attorney Andreas Kyprianou
("Kyprianou") sent a letter of demand to Ideal Drive to
demand delivery
of the Mercedes Benz C63, attaching Ideal Drive's
invoice dated 8 July 2014 for R903 900,00. It mistakenly asserts that
the full
amount of the invoice had been paid by Silvasale.
92.
On 2 December 2014, whatsapp communications took
place between Schmidt and Slabbert, whom Schmidt had labelled "Angie
Evoque"
on her phone. The conversations are quoted below:
"02 Dec 08:11
-
Melande Schmidt: Hi Angie. I need to speak to
you privately asap. When can I phone you when you are alone? Melande
(other messages
omitted)
02 Dec 09:28
-
Angie Evoque: It's embarrassing as it is for
me
now.
02 Dec 10:57
-
Melande Schmidt: I need to know before 13:30.
Im sitting with lawyers then.
02 Dec 11:01
-
Angie Evoque: Werner du Plessis. vcf (file
attached)
02 Dec 11:02
-
Angie Evoque: I am with my lawyer now. Please
discuss anything further with him. He has instructed
me
not to discuss this matter with anyone. Werner
du Plessis. Thanks. This matter I have no clue whats gone on. Werner
du Plessis.
vcf(file attached)
02 Dec 11:03
-
Melande Schmidt: Ok will give his details to
them.
11 Dec 17:57
-
Melande Schmidt: Hi, Have you given any
thought about evoque and giving it to silvasale that paid for it?
Plse let
me
know
otherwise a fraud case will be opened on top of all the other things.
Plse let
me
know.
Melande
11 Dec 18:02
-
Angie Evoque: Hi. It's in the hands of the
lawyers."
93.
Schmidt said that, on receipt of the demand, she
contacted one Dieter Ehlers ("Ehlers") of the independent
Dealers Association
("the IDA"), to ask him to help her,
and to ask Silvasale for proof of payment for the Mercedes Benz.
Ehlers wrote to
Kyprianou on 2 December 2014 to request proof of
payment. Ehlers' email asserts, inter alia, that:
"We acknowledge
that Ideal Drive has issued an invoice dated 8-7-2014 to Silva Sale
Events for a 2013 Mercedes-Benz C63 AMG
on the instruction of Mr Nico
Kruger, who had introduced himself to said Dealer as the owner of
Silva Sale Events."
94.
On 2 December 2014, Kyprianou sent Ehlers proof
of payment, but on Silvasale's own version, this could only have been
for R746 000,00.
Ultimately, on 15 January 2015, deal Drive's
attorneys, Day Inc, replied to Kyprianou's demand and denied that any
agreement was
concluded between Silvasale and Ideal Drive. In
cross-examination, Schmidt confirmed that it was only on 2 December
2014, when
Kyprianou sent proof of payment to Ehlers and copied Ideal
Drive, that she became aware that it was Silvasale that had paid the

sum of R746 000,00 to Ideal Drive. Schmidt repeated that the sms
received by her on 4 July 2014 for payment of this amount had

mentioned
"Silvasale No4 Distributors'
It
was in December 2014 that it became apparent that Kruger had been
"the mastermind"
behind
the deception of Silvasale into believing that the latter was
acquiring a Mercedes Benz C63. Schmidt testified that she had
never
been involved in a court case of this nature before.
95.
Schmidt was referred to complaints made against
Ideal Drive. On 8 July 2015, Kyprianou wrote a letter of complaint
against Ideal
Drive to the FSB, the Motor Industry Ombudsman, the SA
Consumer Complaints, the Retail Motor Industry, the SABS, and the
IDA, alleging,
inter alia, that Ideal Drive  was unlawfully and
fraudulently using an FSP number. On 9 July 2015, Kyprianou wrote to
the
SABS, South African Consumer Complaints and Deloitte Tip-Offs
Anonymous to complain about the sale of the Mercedes Benz itself,

alleging that deal Drive's conduct was
"unfair
and unethical and may well be fraudulent and unlawful."
96.
Schmidt testified that nothing came of the above
complaints and that deal Drive was authorised to use the FSP number
in question.
When interrogated in cross-examination about the
sequential numbers on invoices raised by Ideal Drive, which suggested
that for
Vat purposes these invoices were regarded as enforceable,
Schmidt explained that deal Drive seldom issued pro forma invoices.
She
had installed a dedicated software programme which created a
monthly "DIS report". This served to reconcile paid
invoices
against invoices which did not result in completed sales.
This regularised the amount actually payable to SARS for Vat. She
mentioned
that most prospective purchasers were unwilling to accept
or act on pro forma invoices.
97.
In her view, a credit note on an issued invoice
was superfluous as an issued invoice did not constitute a completed
sale. A completed
sale materialised when the invoice was signed
together with Ideal Drive's standard offer to purchase, as against
prior payment
of the purchase price and delivery of the vehicle. She
confirmed that this is exactly what had occurred with the sale of the
Evoque.
98.
It was put to Schmidt by Counsel for Silvasale
that Schmidt had a
"tendency to lie in
the whatsapp conversations''.
On objection
from Counsel for Ideal Drive, Counsel was instructed by this Court to
withdraw this sweeping statement as being without
foundation. She
denied this in any event.
99.
Counsel for Silvasale yet again suggested to
Schmidt that she was
"selectively
truthful"
in her evidence, to which she
responded that most of her evidence was capable of being corroborated
by the paper trail which formed
part of the various bundles before
Court.
100.
Schmidt emphasised that she had never had any
communication with or from Silva or Sale, other than the phone call
on 20 October
2014 from Dell to Lightfoot and the phone call on 6
November 2014 with Jean Michel, followed by his sms and Lightfoot's
email of
the same date to which the invoice for the Evoque was
attached.
101.
An attempt was made by Counsel for Silvasale to
force Schmidt to concede that there was no legal basis for Silvasale
to have paid
Ideal Drive on 4 July 2014, and that Ideal Drive had
been enriched at the expense of Silvasale. Schmidt replied that, with
knowledge
of the facts which had only come to light in December 2014,
after the sale of the Evoque, this might be the case. In
re-examination,
she confirmed that the profit made by Ideal Drive
from the Evoque transaction was about R28 000,00.
102.
I turn to an assessment of the evidence.
103.
Silva presented as an honest, naive, trusting and
vulnerable witness, who had an unclear recollection of dates. His
lack of business-savvy
and susceptibility to chicanery are adequately
demonstrated by his making a substantial payment to an entity with
which he had
had no prior dealings or communications, entrusting the
transaction instead to Kruger, a person whom he had only recently
met.
His payment of the money without receipt of a prior invoice is
also proof positive of his naivete.
104.
His adamance about receiving Ideal Drive's
invoice on 8 July 2014 exacerbates his case, since the invoice does
not reflect the payment
of R746 000,00 as a down-payment or deposit
on the Mercedes Benz, even though the pre-printed format makes
provision for a deposit.
This ought to have been cause for suspicion
already as far back as July 2014, on the version given by Silva. His
failure to make
any effort to independently follow up on the
transaction with the beneficiary of the money, Ideal Drive, for over
three months,
is further cause for circumspection concerning his
irresponsible conduct. He did not even ask Ideal Drive for a receipt
or any
written confirmation of receipt, following payment on 4 July
2014.
105.
He relied implicitly on the Information fed to
him from time to time by Kruger, whom he admitted was at all times
the authorised
agent of Silvasale in the purchase of the Mercedes
Benz. He continued to do business with Kruger right up until 4
October 2014,
exactly three months after the payment of the deposit,
when his contract to provide hospitality services for an Ellis Park
match,
introduced to him by Kruger, went awry. He confirmed that he
was misled by Kruger on at least four occasions and, in the result,

lost millions of rands. Silva could not dispute that, from the
whatsapp communications between Schmidt and Kruger, Ideal Drive
had
reason to rely on Kruger's assertions to it that the R746 000,00 was
for the purchase of an Evoque and not the Mercedes Benz.
106.
The evidence of Silva's son, Jean Michel,
indicated that, in the light of the documentary evidence shown to
him, that it was probably
on 6 November 2014 that he went to the
premises of Ideal Drive to enquire about the Mercedes Benz. Jean
Michel did not deny having
told Schmidt that Kruger had defrauded
Silvasale of millions of rands.
107.
The evidence of bookkeeper, Dell, corroborated
Silva's version to the extent that she confirmed that Silva had told
her that Kruger
had shown Silva the invoice dated 8 July 2014, for
the Mercedes Benz, in July 2014. Dell testified that Silva only asked
her to
obtain a copy of the invoice directly from Ideal Drive in
"September/October 2014", for Vat purposes. The whatsapp
transcript
indicated that Dell's call took place on 20 October 2014
and Schmidt's evidence made it plain that Dell spoke to Lightfoot,
not
Schmidt.
108.
Kruger proved to be dishonest, evasive,
expedient, and fraudulent. As and when documentary evidence was shown
to him, he adjusted
his evidence and changed versions accordingly. He
demonstrated a distinct aptitude for evading direct answers to
pertinent questions.
He was unreliable and patently deceptive. His
excuse that he was unable to produce any of the highly relevant
documents called
for by the Court, certain of which should have been
readily accessible, namely, lack of time, was inherently improbable,
and redounded
adversely against his credibility.
109.
This notwithstanding, based on the proven and
objective facts, borne out by, inter alia, the documents before
Court, and corroborated
by the vive voce evidence of Messrs Silva,
Jean Michel, Dell, and Schmidt, Kruger's evidence confirmed that:
i.
he
was authorised by Silva, acting for Silvasale, to acquire the
Mercedes Benz from Ideal Drive, on behalf of Silvasale;
ii.
he led Schmidt to believe that he was an
authorised agent for both No 4 Distributors (Pty) Ltd and Silvasale,
(and the communications
between him and Schmidt were consistent with
his assertions);
iii.
he led Schmidt to believe that the payment of the
sum of R746 000,00 emanated from No 4 Distributors (Pty) Ltd, (and
the payment
reference received by Schmidt mentioned No 4
Distributors);
iv.
he viewed the payment of R746 000,00 by Silvasale
as a payment to him and/or No 4 Distributors (Pty) Ltd for services
rendered and/or
disbursements incurred, and this gave him the basis
for using the money to acquire the Evoque for Slabbert, albeit that
he could
not justify this claim against Silvasale;
v.
he
led Schmidt to believe that he was acquiring the Evoque for Slabbert,
via a payment from No 4 Distributors (Pty) Ltd, duly represented
by
him;
vi.
he led Schmidt to believe that the Mercedes Benz
was being acquired by Silvasale, duly represented by him;
vii.
objectively, his unlawful and fraudulent conduct
successfully misled Schmidt into believing that the payment of R746
000,00 was
intended for the purchase of the Evoque, and that the
contract of sale for this vehicle was betweenIdeal Drive and
Slabbert.
110.
Schmidt presented as a witness of integrity. She
was credible, reliable and meticulous in all material respects. Her
memory of all
events of importance was impeccable. Her integrity and
moral rectitude was revealed by evidence other than her testimony
before
Court. When the wrong amount was paid for the Evoque, she
immediately queried this. She insisted on a written instruction from
No 4 Distributors to pay the overpaid amount to Slabbert, consistent
with her understanding that the payment came from No 4 Distributors

(and not Silvasale).
111.
When Lightfoot received a call from Dell asking
for the invoice for the Mercedes Benz, Schmidt immediately asked
Kruger about this,
on 20 October 2014, and believed him when he told
her that he would deal with Dell about the query. On 6 November 2014,
when Jean
Michel asked for the invoice for the Evoque, she sent it to
him. After receiving Kyprianou's letter of demand on 1December 2014,

Schmidt communicated with Slabbert, and even had the decency to
suggest that the Evoque should be given to Silvasale, after she
had
found out that Silvasale had effectively paid for it.
112.
It was plain that Schmidt believed the
representations made to her by Kruger, and that she had no cause to
disbelieve him. The contrary
may have been the case had Silvasale
been less supine about matters and contacted her within a day or two
after its payment toIdeal
Drive, and thereby, alerted her to the true
purpose of the payment. She relied on the submission to her of a
business card of Silvasale
and its Vat number, by Kruger, when
generating the invoice dated 8 July 2014, and had no cause to suspect
Kruger or his authority
when he instructed her to send the invoice to
him.
113.
In advancing her evidence, as she quite correctly
pointed out, there was objective documentary proof to corroborate her
version
in most respects. When she suggested that she should lie
about something, so as to satisfy her supplier that the Evoque deal
would
go through, she said:
"I hate this
lying."
These are not the words of an
unadulterated liar. This may be contrasted with Kruger, who never
admitted to lying about anything,
in the face of patent lies, such as
the alleged debt of R746 000,00 owed to him or his nominee by
Silvasale. He had associated
himself with the fraudulent
misrepresentations in Slabert's credit application form that she had
been employed by Silvasale for
five years, and was a shareholder, and
earned a net monthly salary of R300 000,00.
114.
I refer to the claim based on contract. This is
legally untenable for a miscellany of reasons. In the pretrial
documents, Silvasale
admitted in its response to Ideal Drive's
enquiries in terms of rule 37(4)(b), that Silvasale
"does
not allege any agreement of sale",
between
the plaintiff and the defendant, in respect of the sale of the
Mercedes Benz.
115.
In any event, on its own version, Silvasale was
bound by the conduct of its agent, Kruger. ts own agent performed a
volte face,
breaching his mandate qua agent, and held himself out to
an unsuspecting third party, who had no knowledge of the terms of his
mandate with Silvasale, as representing himself and/or another
entity, No 4 Distributors, in the purchase of the Evoque.
116.
No contract of sale can be concluded between a
principal whose agent misrepresents to an innocent third party that
he acts for another
principal, (or personally), and the innocent
third party, when the latter has no knowledge of the terms of the
agent's true mandate,
or the identity of the agent's true principal.
Ideal Drive had every right to rely on the ipse dixit of Kruger when
he informed
Schmidt that the payment of R746 000,00 was for the
Evoque, that the payment came from No 4 Distributors (Pty) Ltd, and
that the
purchaser of this car was Slabbert. On signature of the
invoice and standard offer to purchase of deal Drive by Slabbert, a
contract
of sale betweenIdeal Drive and Slabbert was consummated.
This wasIdeal Drive's standard modus operandi.In the result, Slabbert
was in fact and in law the purchaser of the Evoque.
117.
The fact that the monies paid toIdeal Drive by
Silvasale were unlawfully misappropriated by its agent, Kruger, for
the purchase
of an entirely different car, for the benefit of another
person, Slabbert, militates against there being grounds for a
contractual
cause of action. There was no consensus ad idem between
Silvasale and Ideal Drive on the essentialia for a contract of sale,
namely,
on the merx, (the vehicle), the price, and the transfer of
ownership of the merx to the purchaser.
118.
Counsel for Silvasale asserts in his heads of
argument in the trial action that it is common cause that Silvasale
was "an undisclosed
principal." This is at variance with
the evidence advanced by Silvasale's witnesses, and is inconsistent
with its own pleadings.
119.
The alternative claim appears to be based on the
condictio indebiti. The starting point is that there is no general
action based
on enrichment in South African law. But there are four
general requirements (per
LAWSA Volume 9
p111 paragraph 209
);
i.
The defendant must be enriched;
ii.
The plaintiff must be impoverished;
iii.
The defendant's enrichment must be at the expense
of the plaintiff;
iv.
The enrichment must be unjustified, that is, sine
causa.
120.
The condictio is available to a claimant to
recover money or other property transferred in intended payment or
performance of a
non-existent debt. Vide
Le
Riche v Hamman
1946 AD 648
.
121.
The following are the established requirements
for the condictio indebiti per
LAWSA Volume 9
p116 paragraph 212;
i.
Ownership of money or other property has been
transferred by the act of the parties, as a general principle;
ii.
The condictio lies only against the recipiens of
the indebitum;
iii.
Generally, the claimant or plaintiff must be the
one who is considered in law to have made the payment;
iv.
The transfer of money or property must have taken
place indebite in the widest sense, meaning that there must have been
no legal
or natural obligation to give it;
v.
The payment or transfer must have been effected
solvendi animo per errorem, in the mistaken belief that the debt was
due;
vi.
For a mistake of fact or law to give rise to a
condictio indebiti the mistake must be excusable; the ignorance must
not be supina
aut affectata.
122.
Silvasale failed to discharge its onus of proving
the requirements for the condictio indebiti.
123.
On the evidence, it was Slabbert who, as a result
of Kruger's misappropriation of Silvasale's money, was enriched, and
who was the
actual recipiens of Silvasale's money, and consequently,
the Evoque and the cash component of about RSO 000,00.Ideal Drive was
purely the conduit for the payment, while retaining a small
commission of some R28 000,00, to which it was entitled, based on the

facts as known by it on 4 July 2014, and the representations made to
it by Silvasale's agent, Kruger.
124.
These facts, simpliciter, vitiate the claim in
its entirety. Additionally, on the evidence, Silvasale had potential
claims against
Kruger based, on, inter alia, his misappropriation of
its monies and/or the breach of his mandate with it.
125.
Secondly, the mistake made by Silvasale was not
an excusable one, its ignorance being supina aut affecta. The
determination of this
requirement entails a value judgment.
126.
The ratio in the case of
Willis
Farber Enthoven (Pty) Ltd y Receiver of Revenue
[1991] ZASCA 163
;
1992 (4) SA 202
A at
paragraphs 42 et sequitur,
serves of
assistance, my emphasis included:
"42. It is not
possible nor would it be prudent to define the circumstances in which
an error of law can be said to be excusable
or, conversely, to supply
a compendium of instances where it is not. All that need be said is
that if the payer's conduct is so
slack that it does not in the
Court's view deserve the protection of the law, he should, as a
matter of policy, not receive it.
There can obviously be no rules of
thumb; conduct regarded as inexcusably slack in one case need not
necessarily be so regarded
in others, and vice versa. Much will
depend on the relationship between the parties; on the conduct of the
defendant who may or
may not have been aware that there was no
debitum and whose conduct may or may not have contributed to the
plaintiff's decision
to pay; and on the plaintiff's state of mind and
the culpability of his ignorance in making the payment.
43.(Consider eg the
case of a person who, whilst in doubt as to whether money is legally
due, pays it not caring whether it is and
without bothering to find
out.) These are only a few considerations that come to mind; others
will no doubt manifest themselves
with the passage of time as claims
for the recovery of money paid in error of law come before the
courts. There is also the question
of the onus of proof. In Recsey v
Reiche
1927 AD 554
at 556 it was said that the onus in an action
based on the condictio indebiti "lies throughout the whole case"
on the
plaintiff. ........ This includes the excusability of the
error
.............I can conceive of
nothing unfair in. and of no consideration of policy or practice
militating against expecting of
a plaintiff who alleges that he paid
an amount of money in mistake of law to prove sufficient facts to
justify a finding that his
error is excusable.
"
127.
The case of
Affirmative
Portfolios CC v Transnet Ltd trading as Metrorail
[2008] ZASCA 127
;
2009 (1) SA 196
SCA. at paragraphs 31 and 32,
is
also instructive in the enquiry, my emphasis included:
"31. The Court
has been reluctant to lay down formulations in order to circumscribe
what is excusable and what is not......One
is however able to discern
certain general principles that have emerged from the decided cases.
Grossly negligent conduct or inexcusable slackness in the conduct
of one's own affairs is generally (but not necessarily) regarded
as
inexcusable conduct. This has been derived from the statement of Voet
16.2.7 that the ignorance of fact should appear to be
'neither slack
nor studied' (nec supine nec affectata) or of a fact concerning the
plaintiff's own affairs.
32. Whether the
defendant had induced the mistake in the plaintiff has often played
an important part in the court's view of what
constitutes an
excusable error. See for example the facts in Willis Faber and
Bowman."
128.
The conduct of Silva in this case was supine and
inexcusably slack. He made a substantial payment of R746 000,00 on
the
"say-so"
of
a person with whom he was not well acquainted. Yet he mandated this
person (Kruger) to represent Silvasale in a transaction involving
a
substantial sum of money.
129.
He made the payment before he had received any
independent documents to verify the transaction. He made no effort to
obtain documentary
proof of receipt of the monies from the recipient
of the monies, or confirmation that the recipient, Ideal Drive, had
credited
the correct transaction.
130.
He said that he received Ideal Drive's invoice on
8 July 2014. Dell testified that Silva had told her that Silva had
seen the original
invoice in June or July 2014.
131.
The invoice placed before Court and on which
Silvasale relies does not reflect the payment of R746 000,00 (paid on
4 July 2014)
as a down­ payment or deposit on the Mercedes Benz,
even though the pre-printed format of the invoice makes provision for
a
deposit.
132.
The invoice is dated 8 July 2014, four days after
the payment of R746 000,00 was made. Silva failed to query this. This
ought to
have been cause for suspicion already as far back as July
2014, on the version given by Silva.
133.
On his version, Silva waited for over three
months and two weeks after the EFT payment on 4 July 2014, (that is,
until 20 October
2014), before he and his son made independent
enquiries about the transaction with Ideal Drive or before he asked
for a copy of
the invoice directly from Ideal Drive.
134.
Silva's ignorance of fact arose in part from the
fraudulent intentions of Silvasale's own duly authorised agent,
Kruger. There is
no legal basis for Silvasale laying accountability
for Kruger's fraudulent conduct at the door of deal Drive, an
innocent unsuspecting
party which was, on the objective facts, also
misled by Silvasale's authorised agent.
135.
For the reasons outlined above, Silvasale failed
to discharge its onus of proving the condictio indebiti and securing
the protection
of the law.Ideal Drive was not unjustly enriched at
its expense, or without legal cause.
136.
Silvasale has argued that its cause of action Is
based on the condictio sine causa.It refers to the case of
Govender
v Standard Bank of South Africa Limited
1984 (4) SA 392
C
.
in which the Court stated:
"In the case of a
condictio sine causa, money which has come into the hands or
possession of another for no justifiable cause,
that is to say, not
by gift, payment discharging a debt, or in terms of a promise, or
some other obligation or lawful ground for
the passing of money to
the recipient, may be recovered to the extent that the recipient has
been enriched at the expense of the
person whose money it was.
"
137.
At page 400 of this judgment:
"....but a
condictio sine causa lies whether the money is in the hands of the
defendant without cause, whether due to mistake
of the plaintiff or
not.....no error need be proved, whether reasonable or unreasonable."
138.
For the reasons set out above, absent an enquiry
as to whether Silvasales erred in making the payment, on the proven
facts outlined
above, Ideal Drive was not enriched at Silvasale's
expense, and without just cause. Silvasale failed to discharge its
onus of proving
the condictio sine causa against Ideal Drive.
139.
I refer to the amendment application. It is
competent in terms of Uniform Rule 28(10) for the Court to amend any
pleading at any
stage before judgment.
140.
The oft-quoted dictum of Caney J, in
Trans-Drakensberg Bank Limited (Under
Judicial Management) v Combined Engineering (Pty) Ltd and another
1967(3) SA 632 p at 641A
,
approved
by a plethora of subsequent cases, serves as a useful starting point,
my emphasis included:
"Having already
made his case in his pleading, if he wishes to change or add to this,
he must explain the reason and show prima
facie that he has something
deserving of consideration, a triable issue; he cannot be allowed to
harass his opponent by an amendment
which has no foundation.
He
cannot place on record an issue for which he has no supporting
evidence
. or, save perhaps in exceptional circumstances,
introduce an amendment which would make the pleading excipiable."
141.
In casu, the proposed amendments were
controverted in material respects by the facta probantia adduced in
evidence at the trial,
and, in the result, may be described as mala
fide.
142.
The genesis of the entire dispute arose from
Kruger's unlawful breach of his agency mandate with Silvasale, and
from his unlawful
misappropriation of monies from Silvasale, to which
neither he nor Slabbert was entitled.
143.
It was consistently the version of Silva,
corroborated by his son, Jean Michel, that Silvasale intended to make
the payment towards
the purchase of a Mercedes Benz and not an
Evoque. Moreover, Silva had no knowledge of the use of Silvasale's
monies for the Evoque
until circa October 2014, long after it had
been sold to Slabbert at the behest of Kruger.
144.
It was owing to the material breach of Kruger's
mandate with Silvasale that no consensus ad idem arose between
Silvasale andIdeal
Drive on the identity of the merx, the purchase
price, and the identity of the purchaser. The evidence revealed that,
owing to
Kruger's breach of mandate, Silvasale andIdeal Drive were
never ad idem on these essentialia, whether in respect of the
Mercedes
Benz or the Evoque.
145.
Silvasale's alternative claims based on contracts
for the purchase of either the Mercedes Benz or the Evoque must fail
on these
grounds simpliciter. This is supported by the evidence
adduced at the trial.
146.
It was established by the evidence, and
overwhelmingly so, that it was Kruger who had unlawfully
misappropriated Silvasale's funds
for his own use, that is, to
acquire the Evoque for his partner, Slabbert.
147.
Ideal Drive played no role in this conduct, being
impervious to the terms of the mandate given to Kruger by Silvasale,
having had
no contact with Silvasale directly, and therefore having
been reliant solely on the information imparted to it by Kruger,
Silvasale's
duly authorised agent.
148.
Concerning the claim based on misappropriation,
the evidence established that the party who misappropriated
Silvasale's money was
Kruger, and notIdeal Drive.Ideal Drive had no
cause to suspect that the money was paid for the purchase by
Silvasale of the Mercedes
Benz because Silvasale's own authorised
agent, Kruger, told Ideal Drive otherwise. Kruger misappropriated the
money for his and/or
Slabbert's own personal gain, in material breach
of his mandate of agency.
149.
In the premises, the re-opening of the trial to
attempt to advance evidence to support further claims against deal
Drive, which
evidence has already been contradicted by Silvasale's
own witnesses and Ideal Drive's witnesses, would have been an
exercise in
futility, grossly prejudicial to Ideal Drive, and would
have constituted a waste of legal costs and time.
150.
Moreover, Silvasale was apprised of the nature of
the chicanery perpetrated by Kruger in the plea raised byIdeal Drive,
and this
was filed a long time before the case came to trial.
151.
I refer to the question of costs. An order for
costs on the attorney and client scale in the trial was warranted
under the given
circumstances.
152.
This is for, inter alia, the following reasons,
namely:
i.
from inception, Silvasale enjoyed no cause of
action againstIdeal Drive arising from Kruger's misappropriation of
its funds; the
detailed explanation of the sequence of events in
communications between Kruger and Schmidt provided in the plea
substantiated
this fact, and discovery would have provided further
such evidence; this notwithstanding, Silvasale persisted with its
claim and
sought costs on the attorney and client scale;
ii.
in July 2015, following the issue of Summons in
March 2015, Silvasale went out of its way to cause trouble forIdeal
Drive and to
harm its reputation, by making unfounded complaints
against it to various regulatory bodies; there was no evidence before
Court
that any of the complaints had been taken seriously by any of
these bodies, or thatIdeal Drive was sanctioned in any way as a
result
of such complaints;
iii.
Silvasale persisted in its vexatious conduct
towardsIdeal Drive by asserting, in May 2016, in its reply to
pretrial enquiries concerning
the question ofIdeal Drive's right to
attorney and client costs, (if successful in its defence), thatIdeal
Drive was "dishonest",
lacked a proper defence, was
"negligent" and was "not bona fide" in the
matter.
153.
An order for costs in the amendment application
on the attorney and client scale in the trial was also warranted, as
this application
was not bona fide and lacked any factual foundation
to sustain the amendments sought.
154.
The following order is granted:
i.
the plaintiff's action against the defendant is
dismissed;
ii.
the plaintiff is directed to pay the defendant's
costs of the action on the attorney and client scale, including the
wasted costs
occasioned by the postponed hearing on 5 May 2016.
_______________________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
20
April 2017
Appearances
Counsel
for Plaintiff:

Adv N Riley
Instructed
by:

Kyprianou Attorneys
Counsel
for Defendant:
Adv
G F Heyns
Instructed
by:

Attorneys Day Inc