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[2016] ZAGPPHC 830
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Vleissentraal Bosveld (Pty)Ltd v PHJ Prinsloo Farming (Pty)Ltd (7257/2015) [2016] ZAGPPHC 830 (30 August 2016)
c/
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 Vasser.
(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
Kotze, 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
Vasser, 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 daama verwys en dit
beskikbaar maak aan voomemende 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 Pi/lay 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
('weerfeggingslasJ. 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
a
er
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 Kotze 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 prims 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 Kotze 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 ac.tion 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.
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
[3]
1977(3) SA 534 (AD) at page 548
[4]
Masibuko v Sanlam 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