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[2016] ZAGPPHC 792
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Focus Mining Services CC v Joubert (A158/2016) [2016] ZAGPPHC 792 (2 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION,
PRETORIA
DATE:
2/9/2016
CASE
NO:A
158/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
FOCUS
MINING SERIVICES
CC
…
..............
.
APPELLANT
and
JOUBERT
HERMAN BENJAMIN
…
...........
RESPONDENT
J
U D G M E N T
MALI
J and DAVIS AJ, concurring
[1]
This appeal came before us from the Tshwane Central - Pretoria
Magistrate's Court. The appellant had sued the defendant for
payment
in the amount of R100 000.00.
[2]
The respondent was an erstwhile member of the appellant. In terms of
a written agreement between the parties, the appellant
was to pay
certain monies to the respondent for the latter's loan account and
membership.
[3]
In paragraphs 7 to 11 of the respondent's particulars of claim the
following is pleaded:
"7
The plaintiff received the last payment in terms of clause 2 of the
agreement on the 9th of December 2013. The abovementioned
amount
excluded the Plaintiff's 10% share of the R1, 000,000.00 (One Million
Rand) as referred to in paragraph 5.
8
In terms of clause 4 of the Agreement the Plaintiff's exposure to the
R1,000,000.00 ( One Million Rand) constituted 10% of the
share which
amounts to R100, 000.00 ( One Hundred Thousand Rand) that was
retained in anticipation of possible civil claims against
the
Defendant referred to in clause 5.
9
All monies have been received from Atlas Copco as per clause 4. The
agreement stipulates that the money in the shell company should
be
retained for a 3 (three) year period. The 3 (three) year period
lapsed on 16 March 2014.
10
The matter under case number: 45569/09 referred to in paragraph 3 of
the agreement has been finalised, alternatively should have
reasonably been finalised, alternatively, is dormant and the parties
thereto have no intention to finalise the dispute.
11
The amount of R100 000.00 is due by the Defendant plus interest from
16 March 2014 to date of payment. "
[4]
The appellant ( defendant in the trial court ) pleaded hereto as
follows:
"6
AD PARAGRAPHS 7
The
contents of this paragraph are denied as if specifically traversed,
and the Plaintiff is put to the proof thereof.
7
AD PARAGRAPH 8
The
contents of this paragraph are denied as if specifically traversed,
and the Plaintiff is put to the proof thereof. "
[5]
In respect of paragraphs 9 and 10 of the particulars of claim the
appellant has pleaded the same as in "Ad paragraph 8"
above.
[6]The
appellant's in respect to paragraph 11 of the respondent's plea is as
follows:
10
AD PARAGRAPH 11
The
contents of this paragraph are denied as if specifically traversed,
and the Plaintiff is put to the proof thereof. The Defendant
further
pleads that on or about 18 December 2012, the Plaintiff signed a
letter acknowledging and agreeing that neither party would
have any
further claims against one another nor would any monies be owed by
one party to another. The Plaintiff simultaneously
resigned from his
positions and interests in the Defendant. A copy of this letter is
attached hereto as annexure "PL1".
[7]
It is common cause that the R 100 000 in question has been paid into
the appellant's attorneys' trust account and has been retained
therein since. In issue therefore was the respondent's entitlement to
repayment.
[8]
In
Mobil Oil Southern
Africa (Pty) Ltd v Mechin
1965 (2) SA 706
(A)
the following was
held:
"…..
In the realm of contract this means that
a
plaintiff, relying on an agreement, bears the onus of alleging
and establishing that it is binding and enforceable one and that what
he claims is due ( see para 633 of Wessels Law of Contract in South
Africa 2nd end vol 1 and its quotation with approval in Serobe
v
Koppies Bantu Community School Board
1958 (2) SA 265
(O)at 271).
[9]
In
NEW ZEALAND CONSTRUCTION ( PTY) LTD V
CARPET
CRAFT 1976(1) SA,
Leon
J stated at page 349:
"
If the party, on whom lies the burden of proof, goes as far as he
reasonably can in producing evidence and that evidence
'calls for an
answer' then, in such case, he has produced prima facie proof, and in
the absence of an answer from the other side,
it becomes conclusive
proof and he completely discharges his onus of proof If a doubtful or
unsatisfactory answer is given it is
equivalent to no answer and the
prima facie proof being undestroyed, again amounts to full proof '
One
of the dangers in this approach is that it may in some cases come
perilously close to placing an onus upon a defendant.
It
is clear, however, that the modern tendency has been to move away
from this piecemeal form of reasoning. In R. v. Sacco, 1958(2)
SA 349
(N) at p. 352, HOLMES, J. (as he then was), suggested that the proper
approach is to look at all the facts at the end of
the case,
including, if it be one of the facts, the absence of an explanation.
But the fundamental question is still whether the
party who bears the
onus has discharged it, the absence of an explanation being no more
than a circumstance to be taken into account
in arriving at a
conclusion. Sacco's case has been followed in a number of cases
including some in the Appellate Division. Among
these may be cited:
Arthur v. Bezuidenhout and Mieny, 1962(2) SA 566 (AD) at p. 574A; S.
v. Sigwahla, 1967(4) SA 566 (AD) at p.
569H; Norwich Union Fire
Insurance Society Ltd. v. Tutt (2), 1962(3) SA 996 (AD); S. v.
Snyman, 1968(2) SA 582 (AD) at p. 589H,
and Levy, N. 0. v. Randalia
Assurance Corporation of South Africa Ltd., 1971(2) SA 598 (AD) at p.
600H.
In
Arthur v. Bezuidenhout and Mieny, supra, OGILVIE-THOMPSON, J.A.,
dealt with this question as follows:
'But
assuming that the defendant has in evidence tendered an explanation,
it is, in my judgment, inappropriate to split up the enquiry
regarding the proof of negligence into two stages. In my view there
is no need to resort to what HOLMES, J. in R. v. Sacco, 1958(2)
SA
349 (NJ at p. 352, called 'piecemeal processes of reasoning. '
There
is, in my opinion, only one enquiry, namely: has the plaintiff,
having regard to all the evidence in the case, discharged
the onus of
proving, on a balance of probabilities, the negligence he has averred
against the defendant?'
I
am of the opinion that the principle to which I have referred in
Goosen v. Stevenson, supra, must be taken to be qualified by
the
modern approach to this subject. The Court must have regard to the
totality of the evidence in deciding whether the plaintiff
has
discharged the onus which rests upon it. One of the factors to which
regard may be had is that the defendant has not given
evidence.
Another factor to which regard may be had is that the question in
issue, i.e. Constable's authority, is a matter peculiarly
within the
knowledge of the defendant. Finally it must be borne in mind that
this case depends entirely upon circumstantial evidence.
The
inference to be drawn from a defendant's failure to give evidence
where the case depends upon circumstantial evidence will
depend upon
all the circumstances of the case including the strength or weakness
of the plaintiff's case and the ease with which
the defendant could
meet it. (Cf. S. v. Mthetwa,1972(3) SA 766 (AD) at p. 769C)."
[10]
The argument on behalf of the appellant is that the trial court
misdirected itself in finding that the plaintiff/respondent
had
successfully proven that the amount of R100.000.00 was due.
[11]
It is not in dispute that the respondent would be entitled to the
repayment of the amount of R100 000.00 if it had not been
utilised in
the litigation for which it was intended,
[12]
The trial court found as follows:
"I
therefore believe that partial integration has taken place and the
Plaintiff has not waived his right to claim the R100
000.00 The next
issue which has to be considered is whether the amount is payable.
Plaintiff in his particulars allege that the
matter under case number
45569/09 referred to in paragraph 3 of the agreement has been
finalized, alternatively should have reasonably
been finalized,
alternatively, is dormant and the parties thereto have no intention
to finalize the dispute.
Plaintiff
testified that he was not aware of the outcome of the matter and
was not
in
a position
to find
the
outcome
as
he
was not
a party
to
the
matter. Plaintiff further
confirmed that he did
not enquire from the defendant as to the status of the matter.
It
is clear that Plaintiff would not be in a position to testify to the
status of the matter and it is for the defendant to allege
that the
amount is not payable, which was never done.
This
court can only conclude that the full R100 000.00 is payable as no
evidence to the contrary has been provided. "
[13]
As indicated in the trial court's judgment above the appellant closed
its case without tendering any evidence. The argument
submitted on
behalf of the appellant is that the respondent was provided with a
case number he could have followed up the matter
on his own. I do not
think so, if the appellant was of the view that it had no obligation
to explain in at least on one sentence
to the respondent, that
litigation was still ongoing, then the plaintiff should not be
expected to follow up the litigation which
was between the defendant
and a third party.
[14]
The respondent contended that the litigation had become dormant and
was not proceeded with. In view of the effluxion of a period
of three
years, this is an ultimately reasonable inference. In view of the
absence of an explanation by the appellant with clear
knowledge of
the status of the litigation, this inference becomes the only
reasonable one on a balance of probabilities.
[15]
In respect of the other defence relied on by the appellant, namely
the
letter
referred
to in paragraph 10 of its plea, the respondent
stated
that
this
letter
was
only
in
respect
of
other
or
future
profits
of the
appellant
and
was not
a
waiver of
his
existing claims. This contention
appears to be correct as the
appellant had, almost a year after
the
letter,
calculated
the
portion
of
the
proceeds
of
the
Atlas
Copco
matter
to
which the respondent was entitled and paid it to him. In an
explanatory e-mail the appellant had
stated that this payment
"was
due"
despite
the
existence
of
the
letter.
[16]
Having regard to the above and the totality of the evidence tendered
in the trial court, I find that the Magistrate did not
misdirect
herself in finding that the respondent had discharged the onus that
the payment was due.
[17]
In
the
result
I
make
the
following
order:
The
appeal is dismissed with costs.
__________________________
N.P.
MALI
JUDGE
OF THE HIGH COURT
________________________________
N.DAVIS
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so
ordered.
Attorneys
for the Appellant:
.................
Adv
J. C.
BOTHA
Instructed
by:
…..................................
YAMMIN
HAMMOND INC
Counsel
for the
Respondent:
.............
Adv J. J. HATTINGH & R.
A.
ARCANGELI
Instructed
by:
......................................
TIAAN
JOUBERT
ATTORNEYS
Date
of Hearing:
…............................
29
August 2016
Date
of
Judgment:
..............................
02
September 2016