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[2016] ZAGPPHC 764
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Vleissentraal Bosveld (Pty) Ltd v PHJ Prinsloo Farming (Pty) Ltd and Another (7257/2015) [2016] ZAGPPHC 764 (30 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 7257/2015
Date:
30 August 2016
In the
matter between:
VLEISSENTRAAL
BOSVELD (PTY) LTD
PLAINTIFF
And
PHJ
PRINSLOO FARMING (PTY) LTD
FIRST DEFENDANT
V
VIVIER NO
SECOND
DEFENDANT
JUDGMENT
PRETORIUS
J,
(1)
This
claim is premised on a written contract concluded between the
plaintiff and the first defendant on 30 September 2013.
The
plaintiff is Vleissentraal Bosveld (Pty) Ltd. The second
defendant is cited in his capacity as the duly appointed executor
in
the deceased estate of the late PHJ Prinsloo, who passed away on 7
December 2013. At the outset the case against the second
defendant was separated in terms of Rule 33(4) of the Uniform Rules
of Court.
(2)
The
main claim against the defendants is based on a written credit
agreement entered into by the first defendant, represented by
the
deceased and the plaintiff was represented by Mr Vosser.
(3)
The
plaintiff granted the first defendant credit facilities to a maximum
amount of R1.6 million to enable the first defendant to
purchase
livestock at auctions held by the plaintiff.
(4)
The
plaintiff would issue an invoice to the first defendant recording the
details and amounts for which the first defendant had
purchased
livestock and the invoice would, in terms of clause 3.2 of the
agreement, be
prima
facie
evidence of the livestock purchased at auction. The amount
would be due and payable to the plaintiff within fourteen days
from
the date of the sale and the issue of the invoice.
(5)
A
further term of the credit agreement was that a certificate issued by
a director or manager of the plaintiff will serve as
prima
facie
evidence of the amount owed by the first defendant in terms of the
agreement.
(6)
The
plaintiff’s alternative claim is based upon the
condictio
sine causa
or alternatively the
condictio
indebitii
,
alternatively a general enrichment claim.
(7)
The
first defendant pleaded that it did not purchase the livestock at the
auctions as set out in the plaintiff’s particulars
of claim.
FACTUAL BACKGROUND:
(8)
Plaintiff
alleges that the first defendant had purchased livestock during the
period commencing on 13 November 2013 until 13 December
2013 at
auctions held by the plaintiff. The plaintiff had complied with
all the plaintiff’s obligations in terms of
the agreement,
whilst, according to the plaintiff, the first defendant had breached
the agreement by failing to pay the plaintiff
within the agreed
fourteen days after auction or at all.
(9)
On
27 January 2015 the plaintiff issued a certificate in that it was
certified that the first defendant owes the plaintiff:
“
13.1 The capital amount of
R1 260 713.94.
13.2 Payment of interest at a rate of 15.5% per
annum on R157 891.74 calculated from 27 November 2013 to date of
payment, both
dates inclusive.
13.3 Payment of interest at a rate of 15.5% per annum on
R428 260.88 calculated from 4 December 2013 to date of payment,
both
dates inclusive.
13.4 Payment of interest at a rate of 15.5% per annum on R107
585.93 calculated from 5 December 2013 to date of payment, both dates
inclusive.
13.5 Payment of interest at a rate of 15.5% per annum on
R273 391.34 calculated from 11 December 2013 to date of payment,
both
dates inclusive.
13.6 Payment of interest at a rate of 15.5% per annum on
R100 373.73 calculated from 12 December 2013 to date of payment,
both
dates inclusive.
13.7 Payment of interest at a rate of 15.5% per annum on
R193 210.32 calculated from 12 December 2013 to date of payment,
both
dates inclusive.”
The
correctness of the contents of this certificate is not in dispute.
(10)
The
evidence of Mr Bornman, on behalf of the plaintiff, was that he was
an auctioneer and that he had been working for the plaintiff
from
2012 until 2014. He was employed as an auctioneer to conduct
auctions throughout the bushveld, which included Bela-Bela
and
Onderstepoort.
(11)
He
had known Mr Prinsloo Junior, the deceased, well as a director of the
first defendant. According to his evidence the first
defendant
operated a feeding lot in the vicinity of Hekpoort. Mr Bornman
knew that the first defendant had a credit facility
with the
plaintiff as he was present when the written agreement was
concluded. He knew the deceased very well as the deceased
had
bought a lot of stock regularly at auction from the plaintiff.
Should the deceased not be able to attend a certain auction,
there
would be a representative bidding on behalf of the first defendant,
who was a certain Mr Johan Kotzè, accompanied
by his son.
(12)
Mr
Bornman’s evidence was that the deceased, Mr Prinsloo Junior
was not always able to attend the auctions and had authorised
both Mr
Bornman on 30 September 2013 and a certain Mr Johan Kotze, in
writing, to purchase livestock at public auctions.
(13)
It
is so that Mr Bornman has no independent factual recollection of the
six public auctions at which the first defendant had purchased
livestock, but relied in his evidence on the relevant invoices of the
six auctions held between 13 November 2013 and 13 December
2013 at
Bela-Bela and Onderstepoort respectively. Five of these
invoices had been signed by him on the date of the relevant
auction,
as being correct.
(14)
Mr
Bornman conceded that the invoice dated 27 November 2013 was not
signed, but that he had signed the remaining invoices dated
13
November 2013; 4 December 2013; 5 December 2013; 11 December 2013 and
13 December 2013. The invoice of 27 November 2013
may,
according to him, not have been signed due to an oversight.
(15)
I
do not attach any weight to the one invoice not being signed, as the
defendants introduced a bundle of invoices dated 3 October
2013; 9
October 2013 and 10 October 2013 of which the invoice of 10 October
2013 had not been signed. These invoices, introduced
by the
defendants during cross-examination of Mr Bornman, were also for
livestock bought at auction on the same basis as the invoices
which
had been compiled in November and December 2013. It is clear
that at all six auctions in issue the first defendant
was registered
as a buyer. The fact that some invoices were not signed can
take the matter no further.
(16)
Mr
Bornman’s evidence was that he had signed on behalf of the
first defendant as he had written authorisation to buy on the
first
defendant’s behalf and if Mr Kotze or Mr Prinsloo Junior had
left, he signed the invoices on their behalf after the
auction had
been concluded.
(17)
His
further evidence was that he would have a telephone conversation with
Mr Prinsloo Junior before the auction to discuss the intended
purchases by the first defendant, as well as the prices the first
defendant was prepared to pay for the livestock on the specific
day.
After the auction another telephone discussion would take place
informing Mr Prinsloo Junior, as to which livestock
had been bought
and at what price. The third conversation would take place
after delivery of the livestock in which Mr Prinsloo
Junior would
express his satisfaction or dissatisfaction with the livestock that
had been bought. His evidence was that he
did not bid on any
livestock during November 2013 on behalf of the first defendant.
(18)
There
had previously never been any complaint by Mr Prinsloo Junior that
the livestock had not been delivered. It had happened
in the
past that Mr Prinsloo called him to enquire why the delivery of the
livestock was late, but there was no occasion that the
livestock was
not delivered. Mr Bornman was not involved in the transport
arrangements from the auction to the first defendant’s
property.
(19)
Mr
Vosser, the managing director of the plaintiff, testified that on 24
January 2014 a letter of demand was despatched to the first
respondent. No reply was forthcoming from the respondents.
On 20 February 2014 a notice in terms of section 129(1)
of the
National
Credit Act
[1]
was sent to the first defendant at his postal address by the
plaintiff’s attorneys. A further letter of demand was
sent to the executor of Mr Prinsloo Junior’s deceased estate.
(20)
On
19 June 2014, almost four months after the section 129 letter had
been dispatched, the attorney for the first defendant requested
information in respect of the buying of livestock during the period 1
October 2013 to 3 December 2013. This information was
supplied
to the first defendant’s attorney on 11 July 2014. On 4
August 2014 the executor of the estate of the late
PJ Prinsloo Junior
informed the plaintiff’s attorney that the claim against the
deceased’s estate had been rejected.
(21)
This
evidence concluded the plaintiff’s case and the defendant chose
not to call any witnesses and closed its case.
(22)
It
is common cause that the plaintiff and defendants entered into a
credit agreement on 30 September 2013 and that Mr Prinsloo Junior
signed a suretyship on the same date. Mr Bornman’s
evidence was that he was present when both these documents were
completed and signed. His further evidence was that at the
start of each auction he read out the conditions and rules of
auction. In any event the rules of auction was kept in the
office on the site where the auction would take place. In
Slabbert,
Verster & Malherbe (Noord Vrystaat) (Edms) Bpk v Gellie Slaghuise
(Edms) Bpk en ‘n Ander
[2]
Malherbe AJ found:
“
Die vraag is dan of eiser redelikerwyse
voldoende stappe geneem het om die verkoopsvoorwaardes by die
onderhawige ooreenkoms te
inkorporeer deurdat die afslaer bloot
daarna verwys en dit beskikbaar maak aan voornemende kopers en
verkopers. Na my mening
was sodanige stappe voldoende. ‘n
Lid van die publiek wat so ‘n veiling bywoon sal besef dat die
voorwaardes
op sy aankoop of verkoping betrekking het en is daaraan
gebonde of hy dit lees of nie. Versuim hy om dit te lees, het
hy
net himself te blameer.
Hierdie
bevinding het tot gevolg dat elke verkoping deur eiser aan tweede
verweerder onderworpe is aan genoemde verkoopsvoorwaardes…
Net soos ‘n voornemende koper, is die voornemende verkoper ook
aan die verkoopvoorwaardes gebonde waar hy uitgenooi word
om dit te
lees maar hom nie die moeite troos om dit te doen nie
.”
(Court
emphasis)
It
is clear that the first defendant was a regular buyer at the auctions
held by the plaintiff and there can be no doubt that he
was informed
of the rules of auction. There is no evidence that the rules of
auction had not been displayed in the office
as testified by Mr
Bornman and that the first defendant was not aware of these rules.
(23)
Mr
Bornman made an excellent impression as a witness. He answered
questions truthfully and conceded facts that were put to
him where
necessary. Mr Vosser’s evidence did not take the matter
much further.
THE LEGAL POSITION:
(24)
I
was addressed by the defendants’ counsel at length, as to the
burden of proof in civil trials. In
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[3]
the court held:
“
As
was pointed out by Davis AJA in Pillay v Krishna…the word onus
has often been used to denote, inter alia, two distinct
concepts; (i)
the duty which is cast on the particular litigant, in order to be
successful, of finally satisfying the Court that
he is entitled to
succeed on his claim or defence, as the case may be; and (ii)
the
duty cast upon a litigant to adduce evidence in order to combat a
prima facie case made by his opponent
.
Only the first of these concepts represents the onus in its true and
original sense. In Brand v Minister of Justice
1959(4) SA 712
(A) at 715 Ogilvy-Thompson JA called it ‘the overall onus’.
In this sense the onus can never shift
on the party upon whom it
originally rested. The second concept may be termed, in order
to avoid confusion,
the
burden of adducing evidence in rebuttal
(‘weerleggingslas’). This may shift, or be
transferred in the course of the case, depending upon the measure
of
proof furnished by the one party or the other…”
(Court
emphasis)
(25)
I
fully confirm the principles set out in this
dictum
and will be mindful of this when considering the facts, evidence and
arguments of the action before me.
(26)
A
prima
facie
case is where there “
is
evidence upon which a reasonable court, applying its mind reasonably,
could or might find for the plaintiff”
[4]
.
(27)
The
first defendant chose not to call any witnesses in this case and the
case will have to be adjudicated on the evidence of the
plaintiff.
A
prima
facie
case may become conclusive if the court finds, in the particular
circumstances, that the defendants failed to rebut the
prima
facie
case.
(28)
The
court has to decide on a preponderance of probabilities whether the
plaintiff has proved its claim. The rules of auction
provide
that delivery takes place the moment the auctioneer announces its
completion by the fall of the hammer in terms of section
45 of the
Consumer
Protection Act
[5]
.
Rule 8 of the Rules Of Auction specifies:
“
All
assets shall, immediately after the bid has been knocked down and
accepted by the Seller, be deemed to have been delivered to
the
Buyer
.
Notwithstanding delivery, the Buyer shall not be entitled to remove
any purchased assets unless the total amount reflected
on the
Auctioneer’s invoice in respect of such assets has been paid in
full.”
(Court
emphasis)
If
I have regard to the facts of the matter I find that delivery had
taken place in this manner at the auctions where Mr Bornman
presided
as auctioneer and specifically in these six instances.
(29)
The
plaintiff had addressed two letters of demand to the first defendant,
and I find it strange that the first defendant chose to
ignore these
letters. The first letter of 24 January 2014 set out that the
first defendant owed the amount of R1 286 631.48
and that
it had to be paid within ten days of despatch. This is a
considerable amount of money. There is no explanation
forthcoming as to why the first defendant chose to ignore this
letter. The next communication was the notice sent by
registered
mail to the first defendant in terms of section 129(1) of
the
National
Credit Act
[6]
.
Once again no response was forthcoming from the first defendant and
the first defendant did not comply with the notice and
did not
respond to the notice. The first defendant waited a further
four months before making enquiries. Even then
there was no
indication that the livestock bought in these six instances had not
been delivered. The first defendant chose
not to present any
evidence refuting delivery at the feeding lot of the livestock.
(30)
The
invoices furnished to the court by the first defendant could take the
matter no further, as no conclusion can be reached as
to unsigned
invoices, due to the fact that the first defendant’s invoices
contained an unsigned invoice as well and the first
defendant relied
on its bundle of invoices during cross-examination.
(31)
The
plea by the defendants “
that
the Consumer Protection Act (“Act”) might not be
applicable to the specific transaction
but
the Regulations are applicable
”
is untenable. In section 1 of the Act “
regulation”
is defined as “
means
a regulation made under this Act”
.
The only inference the court can draw is that if the Act does not
apply, then the Regulations will not apply.
(32)
In
any event the Rules of Auction of the plaintiff sets out in Rule 3:
“
This Rules Of Auction comply with
Section 45 of the Act and the Regulations of the Act and Section 45
of the Consumer Protection
Act, Act 68 of 2008 (“the Act)…”
(33)
Counsel
for the first defendant argues that the correctness of the invoices
are in dispute, although Mr Bornman identified five
of the six
invoices and declared that he had signed the invoices as correct.
The sixth invoice was not signed due to an oversight,
but the first
defendant was registered as a buyer at the auction to which the
invoice relates. His further evidence was that
the auctions on
the dates in question had taken place and that Mr Johan Kotzè
made bids on behalf of the first defendant.
This evidence has
not been contradicted or countered in any way by the first
defendant. It is so that the records of the
auctions have been
lost from which the invoices were compiled, but I have no reason to
believe that these invoices are fraudulent,
having regard to Mr
Bornman’s evidence. He was also not challenged by the
first defendant’s legal representative
that these invoices are
fraudulent.
(34)
All
the invoices related to livestock sold for feeding lots, thereby
strengthening the plaintiff’s case as the first defendant
was
buying livestock for feeding lots. Mr Bornman’s evidence
was throughout that he had not signed the invoices in
his personal
capacity, but as the authorised representative of the first
defendant, as he had written authorisation to do so since
30
September 2013.
(35)
In
Ex
parte Minister of Justice: In re R v Jacobson and Levy
[7]
,
Stratford JA said:
“
Prima
facie evidence in its usual sense is used to mean prima facie proof
of an issue, the burned of proving which is upon the party
giving
that evidence.
In
the absence of further evidence from the other side, the prima facie
proof becomes conclusive proof and the party giving it discharges
his
onus
.”
(Court
emphasis)
(36)
In
Ocean
Accident and Guarantee Corporation Ltd v Koch
[8]
the decision by Lord Benning in
Miller
v Minister of Pensions
[9]
was adopted by the Appellate Division where he had stated:
“
It must carry a reasonable degree or
probability but not so high as is required in a criminal case.
If the evidence is such
that the tribunal can say ‘he think it
more probable than not’, the burden is discharged, but if the
probabilities
are equal, it is not.”
(37)
In
Titus
v Shield Insurance Co Ltd
[10]
Miller JA held:
“
It
is clearly not an invariable rule that an adverse inference be drawn;
in the final result the decision must depend in large measure
upon
“the particular circumstances of the litigation” in which
the question arises.
And
one of the circumstances that must be taken into account and given
due weight, is the strength or weakness of the case which
faces the
party who refrains from calling the witness
.”
(Court
emphasis)
In this instance the plaintiff presented a strong
case.
(38)
I
cannot agree with the defendants that the plaintiff had failed to
present direct evidence. Mr Bornman’s evidence was
clear
and concise. He had no doubt that the relevant auctions had
taken place, that the livestock, as set out in the six
invoices was
sold to the first defendant and that he had signed five of the six
invoices on behalf of the first defendant, as had
been the practice
all along.
(39)
I
cannot find, in the facts presented to court that the first defendant
was an unregistered buyer. He was not only a registered
buyer,
but had entered into a credit agreement with the plaintiff to enable
him to have fourteen days in which to settle his account
with the
plaintiff.
(40)
Both
Mr Bornman and Mr Kotzè had written authority from the first
defendant to bid at auction on behalf of the first defendant.
An important consideration is that at a pre-trial conference held on
11 July 2016 the following was decided:
“
The Defendants are of the view that
documents or copies thereof may without further proof serve as
evidence of what they purport
to be and that extracts may be proved
without proving the whole document, but that the contents of a
document(s) which a party
intends to utilize during the trial of this
action will have to be proved by such party.”
The
relevant invoices are thus what they purport to be. A further
consideration relating to the correctness of the invoices
is that the
deceased was in telephonic conversation with Mr Bornman at each
auction, before and after the auction, as well as after
delivery.
If these invoices were incorrect Mr Bornman would have been informed
thereof, which, according to him, never happened.
I accept his
evidence in this regard.
(41)
If
I have regard to the
Ocean
Accident case
[11]
and the
Titus
case
[12]
I find that in the circumstances of this trial that the first
defendant had to rebut the prima facie evidence of the plaintiff.
(42)
I
have considered all the evidence, facts and arguments. I find
that the plaintiff presented
prima
facie
evidence, which in consideration of all the facts, had become
conclusive as no evidence was presented by the first defendant in
circumstances which the first defendant should have lead evidence as
it had the onus to refute the plaintiff’s evidence.
It is
so that Mr Prinsloo Junior had passed away, but any representative or
employee of the first defendant would have been able
to refute the
evidence of the plaintiff by testifying that the livestock to which
the six invoices relate, was never received.
(43)
In
these circumstances I find that the plaintiff had proved its claim on
a preponderance of probabilities.
(44)
I
will not deal with the alternative claims, due to my findings as set
out above.
(45)
In
the result I make the following order:
1.
Payment
of the amount of R1 260 713.64;
2.
Interest
as follows:
2.1
Payment
of interest at a rate of 9% per annum on R157 891.74 calculated
from 27 November 2013 to date of payment, both dates
inclusive;
2.2
Payment
of interest at a rate of 9% per annum on R428 260.88 calculated
from 4 December 2013 to date of payment, both dates
inclusive;
2.3
Payment
of interest at a rate of 9% per annum on R107 585.93 calculated
from 6 December 2013 to date of payment, both dates
inclusive;
2.4
Payment
of interest at a rate of 9% per annum on R273 391.34 calculated
from 11 December 2013 to date of payment, both dates
inclusive;
2.5
Payment
of interest at a rate of 9% per annum on R100 373.73 calculated
from 12 December 2013 to date of payment, both dates
inclusive;
2.6
Payment
of interest at a rate of 9% per annum on R193 210.32 calculated
from 12 December 2013 to date of payment, both dates
inclusive;
3.
Costs
on an attorney and client scale.
Judge
C Pretorius
Case
number : 7257/2015
Matter
heard on : 27 & 28 July 2016
For the Plaintiff : Adv MP van der Merwe (SC)
Instructed
by : Bornman Snyman & Barnard Inc.
For the Defendants : Adv PA Swanepoel
Instructed by : Prinsloo Incorporated
Date
of Judgment : 30 August 2016
[1]
Act 34
of 2005
[2]
1984(1)
SA 491 (O) at page 498
[3]
1977(3)
SA 534 (AD) at page 548
[4]
Masibuko
v Santam Insurance and Another 1982(3) SA 125 (A) at page 133
[5]
Act 68
of 2008
[6]
Supra
[7]
1931
AD 466
at 478
[8]
1963(4)
SA 147 (A)
[9]
1947(2)
All ER 372 at 374
[10]
1980(3)
SA 119 (A) at 133E
[11]
Supra
[12]
Supra