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[2016] ZAGPPHC 193
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Metal Fabricators of Zambia PLC v Universal Cables (Pty) Limited (30426/2008) [2016] ZAGPPHC 193 (18 March 2016)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG HELD IN PRETORIA
CASE
NO: 30426/2008
DATE:
18 MARCH 2016
In the matter
between:
METAL FABRICATORS
OF ZAMBIA
PLC
...........................................................................
Plaintiff
And
UNIVERSAL CABLES
(PTY)
LIMITED
.............................................................................
Defendant
JUDGMENT
TEFFO. J:
[1] This judgment
relates to the quantum only. The merits have been disposed of. The
plaintiff sued the defendant for payment of
an amount of R2 055
442,20 which was due and owing to it in terms of escalations in
respect of copper cabling sold and delivered
by the plaintiff to the
defendant in terms of
a contract that
existed between the parties. All amounts for the supplies made have
been paid save for the escalations.
[2] The dispute
between the parties revolved around the escalation of the copper
price on the London Metal Exchange (“LME”),
whether it
was to be calculated one month before the delivery date or one month
before the due date set out in the purchase order
from the defendant.
[3] I was previously
called upon to make a determination on the following issues:
3.1 Whether the
'conditions of sale’ annexed to the plaintiffs notice of
amendment (Annexure “Z”) and as pleaded
in the
plaintiff's amended para 3 of the particulars of claim or (Annexure
“E” to bundle 1), formed part of the agreement
between
the parties.
3.2 What other
documents formed the written portion of the agreement between the
parties.
3.3 What the agreed
price of the goods as ordered by the defendant from the plaintiff
were.
3.4 The specific
month to be used in the calculation of the LME rating to be applied
to the agreed price of the goods delivered
by the plaintiff to the
defendant with specific reference to the “Due date” as
appearing in Annexures “A1”
to “A4” to the
plaintiffs particulars of claim.
3.5 Whether the
deliveries on each occasion were to be made within a reasonable time
having regard to the provisions of clause 4.2
of the conditions of
sale alternatively to the surrounding circumstances under which the
agreement was concluded.
[4] I made the
following findings and gave judgment in favour of the plaintiff:
4.1 That the terms
and conditions of sale formed part of the agreement between the
parties.
4.2 That the
quotations and the purchase orders also formed part of the agreement
between the parties.
4.3 That the agreed
price of the goods was subject to escalation according to the LME
being the average price one month before delivery.
4.4 That the
plaintiff was not liable to pay damages to the purchaser suffered as
a result of its failure to deliver the goods timeously.
[5] Subsequent to
the granting of the judgment on the merits in favour of the
plaintiff, the plaintiff prepared schedules in calculation
of the
quantum. Eventually a certificate was issued to which a new schedule
(“schedule A”) was annexed. The plaintiff
as a resuit
thereof amended the amount claimed in the particulars of claim to R2
824 403,95.
[6] The plaintiff
closed its case without calling witnesses after it had handed up
schedule A and the certificate and requested
that they be admitted
into evidence and form part of the record. The defendant led the
evidence of two witnesses, namely, Mr Ockert
Johannes Olivier (“Mr
Olivier") and Mr Rudi Labuschagne (“Mr Labuschagne”).
[7] Mr Olivier
testified that during the latter part of 2006 he was employed by the
plaintiff as a consultant at its Johannesburg
office. He was the face
of the plaintiff in South Africa. He was tasked with the marketing of
the plaintiffs products in Africa
and South Africa. These products
were manufactured in Zambia. His duties also involved amongst others,
contacting various customers,
negotiating prices and deliveries and
assisting with the flow of business. This included collecting
customers’ orders and
sending all the documents to Zambia. He
also attended to queries from customers. The defendant was one of the
plaintiffs customers.
Mr Korte and Mr Jackson Zulu, who was the
plaintiffs marketing manager, were based in Zambia at the time. He
negotiated the contract
on behalf of the plaintiff and Mr Labuschagne
represented the defendant at the time. The negotiations led to the
conclusion of
the contract between the parties. He disputed that Mr
Korte was involved in the negotiation of the contract between the
parties.
He corresponded with Mr Zulu all the time. He also disputed
that Mr Zulu interacted with Mr Labuschagne during the latter part of

2005 to 2006.
[8] He testified
that the calculations on schedule A were not fair and accurate. He
disputed the correctness of the certificate
signed on 9 February 2015
by Mr Zulu in the amount claimed. He challenged the competence of Mr
Korte and Mr Zulu to issue a certificate
on behalf of the plaintiff.
He contended that the employees of the plaintiff in Zambia never
understood the procedure that was
applicable to escalations. He was
the person who introduced the application and procedure of
escalations in the plaintiffs business
in South Africa. The
escalations never existed prior to his appointment. They were
introduced because of his involvement in the
South African market.
Accordingly, so he testified, Mr Zulu heavily relied on third
parties’ inputs to apply escalations.
The escalations were
exclusively his domain. He was called on a number of occasions to
explain the procedure to be followed in
the application of
escalations by Mr Korte and prior to the application thereof, he had
compiled a complete set of procedures to
apply to escalations. He
disputed that the plaintiff was entitled to the amount claimed. The
plaintiff was according to him not
in a position to apply escalations
because of its agreement with the defendant. He told Mr Korte and Mr
Zulu that the plaintiff
was not in a position to apply escalations to
the defendant. Eventually he was removed from the responsibility of
handling escalations.
They were handled by the plaintiffs employees
in Zambia.
[9] He introduced
Annexure “D” which he wrote on 7 December 2005 to Mr
Korte. The idea was to put all the names of the
customers to be
escalated. He also emailed the procedure of price escalations to be
applied to the business in South Africa to
Zambia for the attention
of Mr Zulu, Mr Frans Kabwe and others. Annexure “D”
contains the escalation procedure that
he personally wrote and which
was applicable to business in South Africa. Mr Zulu was never asked
to issue certificates personally,
he issued them with the assistance
of others. He also challenged the certificate issued prior to 6
October 2014 and the amount
included on it. Five months after he was
removed from the handling of escalations, he was retrenched. He was
invited to do certificate
basis of escalations but he turned the
offer down. The escalations were later handed to Mr Kangwa Bwalya who
was an accountant
at the time.
[10] Under
cross-examination he testified that the proper procedure that should
have been followed for the proper calculation of
escalations was the
LME based on one month prior to the due date as per the purchase
order. When told that the schedule that Mr
Zulu used was a
calculation of the LME one month prior to the actual date of
delivery, his response was he has not been an employee
of both
parties for 8 to 9 years. He did not have source documents to verify
the calculations. He could not dispute the calculation
and how the
amount claimed was arrived at. He could not tell what was wrong with
the schedule except to say that he was not happy
that it was done by
plaintiffs employees from Zambia while he was sidelined. He expressed
concern that the previous schedules’
values changed
considerably and consistently and that the initial schedule value was
lower. When told that the schedules he was
raising concerns about
were verified by Mr Labuschagne on behalf of the defendant, he said
he did not know that.
[11] He could not
dispute that Mr Labuschagne filed an 11 page document pointing errors
to the previous schedules from Mr Zulu in
an attempt to resolve the
issue of the quantum. He also could not dispute that Mr Zulu met with
Mr Labuschagne who represented
the defendant where they discussed
errors and problems with the previous schedules and schedule A in
terms of which the amount
claimed was calculated, was prepared. He
was adamant that the schedule A was not agreed upon by the parties
and that Mr Zulu and
Mr Labuschagne only agreed on the calculations.
[12] He conceded
that once the court has given the parties a formula, it does not need
a genius to do the calculations. Anybody
can do them.
[13] Mr Rudi
Labuschagne also testified. He is the managing director of the
defendant and he handled the order of the defendant
to the plaintiff
which forms the subject matter of the claim in casu. The claim
concerns escalations which were not paid. He personally
compiled
Annexure “EE2”. Annexure “EE2” is a schedule
(spreadsheet) of calculations relating to alt the
transactions
between the parties relevant to this matter. It contains purchase
orders and documents received with regard to purchase
orders from the
plaintiff (commercial invoices). He attended to making comments on a
schedule similar to schedule A from the plaintiff
and his comments
were delivered to the plaintiff prior to 6 February 2015. He attended
a meeting of experts at a conference in
Sandton with the plaintiffs
expert, Mr Zulu. The purpose was to see if the parties could reach an
agreement on Schedule A. He pointed
out to Mr Zulu that there were a
few discrepancies where the price escalation formula and the inputs
were incorrect. Mr Zulu admitted
to the mistakes on the spreadsheet
and amended them. The amendments made were incorporated in schedule
A. They did not agree on
schedule A. They only agreed on the
arithmetic. He compiled “EE2” to ascertain the values of
the invoices from the
plaintiff. He referred to the defendant’s
order numbers, viz, JPO 030065, etc and mentioned that there were
debit notes raised
on the invoices received from the plaintiff and
there were invoices where there were no debit notes. He also
explained that some
prices from some invoices from the plaintiff were
not correct. Further that there was a duplication of debit notes on
the same
order. He also mentioned that some debit notes were only
generated three months later. He contended that it would not have
been
proper to generate a debit note three months after the actual
delivery. He referred to a number of invoices and debit notes and

stated that in all the invoices where the issue of duplication of
debit notes was raised and where he mentioned that there were
no
debit notes, the metal adjustment value was zero. He disputed the
amount claimed by the plaintiff as per schedule A and the
certificate
compiled by Mr Zulu and contended that they do not owe the plaintiff
any amount. He contended that they did not receive
any working
document in respect of schedule A as well as the debit notes. They
have also not received any source document to support
the debit notes
received.
[14] Under
cross-examination he testified that the amount claimed by the
plaintiff as per schedule A was arrived at by not applying
the
calculations as agreed by him and Mr Olivier. The debit notes were
raised subsequent to receiving the invoices and they were
not
generated as per his agreement with Mr Olivier. The fact that the
calculations were amended on numerous occasions by the plaintiff
made
it very difficult for him to work on the documents received from it.
He explained that his problem with schedule A was based
on the fact
that he believed that the calculations should have been done
according to the LME one month before the due date as
against one
month prior to the delivery date. Escalations, if any, should have
accompanied Invoices at the point of delivery. There
should not have
been any debit notes at all. The escalations, if they were applied
correctly, should have reflected their value
on the invoices. The
formula applied in the calculation of escalations, should have
accompanied the invoices.
[15] He conceded
that schedule A was compiled after Mr Zulu had corrected the mistakes
he pointed out to him from the previous schedules
from the plaintiff.
He had purchase orders and source documents to verify the previous
schedules which culminated into the compilation
of schedule A. He was
able to verify if the orders in schedule A were correct. He also had
the invoice numbers and delivery dates.
When he compiled “EE2”
he had the opportunity to verify all the source documents which
included the universal delivery
dates. He had all the necessary
information to verify that all the entries in Schedule A were
correct. He carefully checked schedule
A because he was requested to
do so by the plaintiff in its correspondence to the defendant on 28
January 2015 in order to narrow
the issues between the parties. He
conceded that no debit notes had been received on the amount claimed.
When asked that the indebtedness
for the escalations was not based on
the debit notes but by agreement, he said he was not a financial
person to answer the query.
He disputed that the reason for the
non-payment of the amount claimed was because they did not receive
the debit notes. When asked
why does he believe the defendant did not
owe the plaintiff any cent, he said the debit notes were raised after
receiving delivery
and that they worked on the invoice amounts as per
the documents received from the plaintiff. The documents from the
plaintiff
showed according to him that the amount owed was zero. He
was further asked whether he arrived at zero when he applied the LME
one month prior to delivery date. His response was he only worked on
the documents that were available.
[16] He conceded
that “EE2” raised the problems regarding quantifications
and duplications on debit notes but when asked
whether those
duplications and/or problems with quantifications were not repeated
in schedule A, he testified that he revisited
the schedule as he was
being cross-examined and during his meeting with Mr Zulu on 6
February 2015. He and Mr Zulu and agreed on
the values for the
calculations. After reviewing schedule A as and when he was giving
evidence, he pointed out things he was not
happy about. He raised an
issue about a date of 4 October 2014 which appeared on the right hand
corner of Schedule A and contended
that it was not correct as the
schedule was reviewed on 6 February 2015. He indicated that there was
a debit note numbered 369R
on the schedule. He was not familiar with
such debit note and that according to “EE2” the only
debit notes he was aware
of were on bundle 6-3 of “EE2”.
Furthermore the amounts on the debit notes in “EE2”
bundle 6-3 did not
correspond with those that appeared on schedule A.
All the issues raised are on record. I will not deal with them
specifically
but they mainly revolved around the different debit
notes.
[17] He testified
that he received debit notes from the plaintiff late and this made it
impossible for him to know the costs for
the materials. He further
stated that in some instances the plaintiff generated debit notes
before it could receive the goods.
When told that none of the issues
raised affect the amount claimed by the plaintiff in schedule A, he
said the calculations with
regard to the values as recorded were
correct. It was put to him that the issues he had were resolved in
accordance with the judgment
on the merits in schedule A. His
response was that the problem he had with schedule A was the number
of revisions made and that
those revisions were made in the weeks
prior to coming to court. He mentioned that he was concerned about
the time frame. He conceded
that all the issues raised did not affect
the correctness of Schedule A.
[18] When asked
whether there were any fabrications in Schedule A he said he was
informed that the plaintiff backdated the delivery
dates on the debit
notes when they were generated. He testified that Mr Olivier told him
that the delivery dates on the debit notes
were generated manually
and Mr Korte admitted during their consultation that the debit notes
were generated on a self-created system.
When asked whether that
affected the correctness of Schedule A he said he was not an
accountant but that was not the practice.
He could not respond when
he was told that the defendant never pleaded that it had to receive
debit notes by a specific date.
[19] Under
re-examination he testified that the defendant was not aware of the
debit notes reflected on schedule A. He contended
that he was never
in a position to verify the existence of the debit notes as they
appear in schedule A and to ascertain the source
and their basis.
Accordingly, so he testified, he was not in a position to consider
and assess the correctness of schedule A.
[20] The issue for
determination is whether the plaintiff has discharged its onus of
establishing the quantification of its claim
by relying on a
certificate of indebtedness with schedule A evidencing that the
amount due and payable to the plaintiff was R2
824 403,95.
[21] Clause 7.4 of
the conditions of sale between the parties reads:
“A certificate
signed by a director or manager of Zamefa, or any independent third
party solely nominated by Zamefa whose
office need not be proved,
shaii be prima facie proof both of the existence of debt as well as
the amount owed by the Buyer”
[22] The court in
Senekal v Trust Bank of Africa Ltd
1978 (3) SA 375
(A) at 382G-383F
articulated the following principles when dealing with the production
of a certificate to prove the amount of
indebtedness: "As to the
second of the grounds referred to above, Mr Toit’s contention
was, in effect, that once such
a certificate is shown to be suspect
as to its accuracy or reliability in any respect whatever, it has no
evidential value and
must be entirely disregarded. I have no doubt
that that broad contention must be rejected. There might be several
items to which
such a certificate relates, some of which may appear
to be unassailable while others may either be shown to be inaccurate
or appear
to be of dubious reliability, or might require some
modification or adjustment I can find no reason why in such
circumstances the
certificate is to be entirely disregarded merely
because it is found or thought to be inaccurate or unreliable in
certain respects.
At the end of the case, when all the evidence
(which includes the certificate) is in, the court must decide whether
the party upon
whom the onus rests has discharged it on a proper
balance of probabilities. As was pointed out by STRATFORD JA in Ex
parte Minister
of Justice: In re Rv Jacobson and Levy
1939 AD 466
at
478:
Vrima facie
evidence, in its more usual sense, is used to mean prima facie proof
of an issue the burden of proving which is upon
the party giving that
evidence.'
If the prima facie
evidence or proof remains unrebutted at the close of the case, it
becomes ‘sufficient proof of the fact
or facts (on the issues
with which it is concerned) necessarily to be established by the
party bearing the onus of proof. (Salmons
v Jacoby 1939 AD 588 at
593.)
The onus in this
case was clearly on the respondent to establish the amount of the
indebtedness of the principal debtor, Luna. (See
Narlis v South
African Bank of Athens
1976 (2) SA 573
(A) at 579G-H.) It sought to
discharge that onus, inter alia, by the production of the certificate
which, by agreement between
the parties, was to be regarded as prima
facie evidence (or proof) of the amount of such indebtedness. The
inquiry, then, in the
light of what I have just said, is whether at
the end of the case the prima facie evidence afforded by the
certificate had been
so disturbed as to prevent its becoming
sufficient proof. I may say at once that when considering that
question the court a quo
was fully entitled to take into account, as
it did, that the appellant closed his case without having led any
evidence whatever.
There is no question of the certificate
transferring the onus, in the full sense of the word, to the
appellant, but in the light
of the provisions of the certificate
clause in the deed of suretyship, the appellant could only at his
peril refrain from giving
or leading evidence to counter the prima
facie proof of the amount of the indebtedness afforded by the
certificate. It was contended
on the appellant’s behalf that
the court a quo gave undue weight to his failure to lead evidence,
since he was, as surety,
at a disadvantage in challenging the
correctness of a debt incurred by the principal debtor, but that was
a risk which lie expressly
accepted when he signed the deed of
suretyship containing the certificate clause.
Moreover, he had a
financial interest in Luna, having acquired shares in that company,
and the evidence reveais that he showed a
direct interest in its
affairs and in the state of its finances, which he discussed with
officials of the respondent bank. Because
of the absence of any
evidence to contradict or rebut that afforded by the certificate, the
appellant’s strategy in defence
was to attack the certificate
in every respect in which it appeared that it might conceivably be
vulnerable. It is to that attack
that I now turn
[23] The onus of
establishing the amount of indebtedness as claimed in current matter
is on the plaintiff. Instead of adducing oral
evidence to prove its
claim, the plaintiff produced a certificate to which schedule A was
annexed and closed its case without calling
witnesses , I have to
determine whether at the end of the case when all the evidence which
includes the certificate, the plaintiff
has discharged its onus on a
balance of probabilities.
[24] It is common
cause between the parties that in an attempt to resolve the issue of
quantum previous schedules were drawn by
the plaintiff and sent to
the defendant’s expert for verification. Eventually both
parties’ experts met, problems with
regard to calculations and
the formula used thereof were highlighted to the plaintiffs expert
and the end product was Schedule
“A” attached to the
certificate. Mr Labuschagne testified that he compiled “EE2”
to verify the entries
made in the previous schedules. He had the
opportunity to check ail source documents which included universal
delivery dates, invoice
numbers, purchase orders, etc, when he
compiled “EE2”.
[25] What I find
strange in the defendant’s evidence is that despite the fact
that it is conceded that Mr Zulu, the plaintiffs
expert, had
corrected the mistakes which were pointed out to him by Mr
Labuschagne, the defendant’s expert, the defendant’s

witnesses, Mr Olivier and Mr Labuschagne kept on challenging schedule
A annexed to the certificate on issues it conceded were rectified.
It
also became clear from their evidence that they could not distinguish
schedule A from the previous schedules. Despite the court’s

finding on the merits that the formula to calculate the value of
escalations as agreed between the parties was based on the LME
one
month prior to the actual delivery date, both defendants’
witnesses kept on challenging schedule A because according
to them
the formula used to calculate the value of escalations was incorrect.
! will deal with Mr Olivier’s evidence later
in the judgment
but at this stage I wish to point out that under cross-examination Mr
Olivier testified that the proper procedure
that should have been
followed in the calculation of the value for escalations was the LME
based on one month prior to the due
date as per the purchase order
from the defendant. This formula was not found on the merits to have
been the correct formula to
calculate the value of escalations. When
it was put to him calculations made on schedule A were based on the
court’s findings,
he responded by saying that he has not been
an employee of either of the parties for 8 to 9 years. He therefore
could not dispute
the amount claimed and the calculation thereof.
[26] Mr Olivier did
not testify when the court dealt with the merits of this case. His
evidence basically was an attempt to revisit
the merits. There was no
evidence that he was an expert to deal with the issue of quantum in
this matter but he went to the extent
of adducing evidence to
challenge the competence of Mr Zulu to issue a certificate on behalf
of the plaintiff. I find that evidence
to be irrelevant. I also find
his evidence regarding his involvement with the transactions between
the parties as a representative
of the plaintiff in South Africa and
how he was moved from the section that dealt with escalations,
irrelevant. That evidence does
not assist or take the defendant’s
case any further with regard to the calculation of quantum in this
matter. It would have
been relevant when the merits were dealt with.
[27] Mr Olivier did
not appear as a good witness at all. His evidence was full of
bitterness and emotions. He was just disputing
the calculations on
the basis that he did not believe in the competencies of the
plaintiff’s employees who were based in
Zambia at the time. He
clearly stated that he was sidelined. He did not even know that both
parties’ experts met and discussed
the previous schedules which
were ultimately rectified by Mr Zulu of the plaintiff.
[28] While Mr
Labuschagne testified that he met with Mr Zulu and pointed out the
mistakes he made on the previous schedules and
that Mr Zulu attended
to the mistakes and rectified them, he was adamant that he and Mr
Zulu did not agree on schedule A but only
agreed on the arithmetic.
He then kept on referring to “EE2” highlighting debit
notes which he indicated were either
duplicated or generated late and
also challenging the correctness of certain invoices. His evidence
was also to the effect that
in all instances where there were either
no debit notes or there duplications thereof, the metal adjustment
value was zero. In
his evidence-in-chief he disputed schedule A and
the certificate and contended that the defendant did not owe the
plaintiff any
amount. Further that the defendant did not receive any
working document in respect of schedule A as well as the debit notes
and
or any source documents to support them.
[29] It became clear
from his evidence under cross-examination that his main challenge and
criticism of schedule A was because it
was not calculated according
to the LME based on one month before the due date as per the purchase
order from the defendant. His
further evidence revealed that the
concerns raised in “EE2" were in relation to the previous
schedules which were rectified
and resulted into schedule A. He
clearly testified that when he compiled “EE2” he had the
opportunity of checking all
the source documents. That was the reason
he was able to point out all the mistakes he picked up in the
previous schedules.
[30] He also
testified that he also checked schedule A as he was requested to do
so in the plaintiffs correspondence to the defendant
dated 28 January
2015 as the parties wanted to narrow the issues. He stated that he
checked schedule A carefully as he had all
the necessary information
to verify all the entries on it. When asked why he was of the view
that the plaintiff was not entitled
to any amount claimed, he stated
that the debit notes were raised after receiving delivery and that
the documents received from
the plaintiff showed according to him
that the amount owed was zero. When asked whether he arrived at the
zero amount when he applied
the LME one month prior to the delivery
date, the response that he gave was that he worked on the documents
that were available.
This response did not answer the question
whether he applied the formula as found by the court on the merits.
[31] At some stage
under cross-examination Mr Labuschagne conceded that the issues he
raised with regard to the late receipt of
debit notes as alleged, the
allegation that the plaintiff generated debit notes before they could
receive the goods, etc, did not
affect the correctness of schedule A.
When asked whether schedule A was fabricated, he stated that Mr
Olivier told him that the
plaintiff backdated the delivery dates on
the debit notes when they were generated. I find it strange that the
defendant attempted
to bring in the evidence of debit notes while it
never pleaded that it had to receive debit notes by a specific date.
[32] It was argued
on behalf of the defendant that the court should draw an adverse
inference against the plaintiff for having failed
to call Messrs
Korte and Zulu who were available during the trial in the light of
the unchallenged evidence of the defendant. I
was referred to the
decision of Durban City Council v SA Board Bills Ltd
1961 (3) SA 397
(AD) at 405E-F and the full court judgment in Monteoli v Woolworths
(Pty) Ltd
2000 (4) SA 735
(W) at 742F. I do not agree that these
cases are applicable to the present matter in that they are
distinguishable from the facts
before me. The issue in this matter is
whether a certificate agreed upon by the parties to constitute prima
facie evidence of the
existence of the debt and the amount owing, can
be regarded as sufficient proof of the plaintiffs claim where the
plaintiff produced
it without leading evidence to support it at the
end of the case after hearing the totality of the evidence. The
admissibility
of certificates agreed upon by the parties in their
contracts as providing conclusive proof of the debt was dealt with
previously
in different courts and ultimately it was decided that if
a certificate provided for conclusive proof, it should not be used as

it was contrary to public policy. However, where such certificate
provided prima facie proof of the existence of the debt and the

amount owing, it could be relied upon as the defendant would then be
afforded the opportunity of rebutting it (Ex parte Minister
of
Justice: In re E Nedbank Ltd v Abstein Distributors (Pty) Ltd and
Others and Donelly v Barclays National Bank Ltd
1995 (3) SA 1
(A)).
[33] It is clear
from clause 7.4 of the conditions of sale between the parties that
the parties had agreed that a certificate of
indebtedness signed by
either a director or manager or any third party solely nominated by
the plaintiff whose office need not
be proved, shall be prima facie
proof of the existence of the debt as well as the amount owed. It is
common cause between the parties
that the certificate that was
produced by the plaintiff and admitted into evidence and schedule A
attached to it was issued and
signed by Mr Zulu who is and has always
been the manager of the plaintiff at all material times. After the
production of the certificate
and schedule A annexed to it and their
admission into the evidence, the defendant therefore had to rebut the
prima facie evidence
afforded by schedule A and the certificate. I
therefore do not agree that an adverse inference should be drawn
against the plaintiff
in this matter for failing to call witnesses
who were present when the matter was heard taking into account the
totality of the
evidence. Having analysed the evidence of the
defendant above, it cannot be said that that evidence was not shaken
during cross-examination.
Without repeating my evaluation of the
defendant’s evidence, it is my view that for the reasons
highlighted above I am not
persuaded that the prima facie evidence
afforded by the certificate and schedule A had been so disturbed as
to prevent its becoming
sufficient proof for the existence of the
debt and the amount claimed (see Salmons v Jacoby and R v Jacobson
and Levy supra). The
defendant has therefore failed to rebut the
prima facie evidence afforded by the certificate and schedule A as
produced by the
plaintiff. I am therefore satisfied taking into
account the totality of the evidence that the prima facie evidence
afforded by
the certificate and schedule A remained unrebutted at the
end of the case. It therefore became sufficient proof of the
existence
of the debt owed to the plaintiff by the defendant and the
amount thereof.
[35] I therefore
find under the circumstances that the plaintiff has discharged its
onus on a balance of probabilities to establish
the amount claimed.
[36] In the result I
make the following order:
36.1 The defendant
is ordered to make payment to the plaintiff of the amount of R2 824
403,96 with costs and interest on the aforesaid
amount a temporae
morae at the prescribed rate of interest of 15,5% per annum from date
of service of summons
on 12 September 2008
to 31 July 2014 and 9% per annum from 1 August 2014 to date of final
payment.
M J TEFFO
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
COUNSEL FOR THE
PLAINTIFF G KAIRINOS SC
INSTRUCTED BY A
DU PLESSIS ATTORNEYS
COUNSEL FOR THE
DEFENDANT P SIEBERHAGEN
INSTRUCTED
BYWYNAND DUPLESSIS ATTORNEYS
DATE OF JUDGMENT:
18 MARCH 2016