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[2016] ZAGPPHC 919
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McCarthy Limited v Profpro (Pty) Ltd (13651/2012) [2016] ZAGPPHC 919 (15 September 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
15/9/16
CASE
NO: 13651/2012
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
McCARTHY
LIMITED
t/a
McCARTHY VOLKSWAGEN
WITBANK
Applicant
and
PROFPRO
(PTY)
LTD
Respondent
JUDGMENT
MSIMEKI
J,
INTRODUCTION
[1]
This is an application wherein the applicant seeks an order:
"1. That the
Respondent be directed to forthwith deliver to the Applicant the
original Natis registration documentation of
the vehicle released to
the Applicant by agreement between the respondent and the Applicant
on 6 May 2011 to wit
a
Volkswagen 2010 T5
2.5
TDi
bearing the registration number Y[…] GP;
2. In the alternative
to prayer 1 above and in the event that it is found that the
Respondent disposed of the original Natis documentation
of the said
vehicle, that the Respondent deliver duly obtained duplicate original
Natis documentation to the Applicant; and
3. That the respondent
simultaneously provide duly signed documents to effect transfer of
the registration of the vehicle to the
Applicant;
4. That the Respondent
pay the costs of this application;
5. Further and/or
alternative relief."
BRIEF
BACKGROUND FACTS
[2]
The respondent purchased the motor vehicle referred to in prayer 1 of
the Notice of motion from the applicant which trades as
a motor
vehicle dealership under the name McCarthy Volkswagen Witbank for the
purchase price of R413 185 02.
[3]
The respondent contended that the applicant had not disclosed that
the motor vehicle had been damaged prior to it taking delivery.
A
dispute arose between the parties. The respondent demanded refund of
the purchase price it had paid while the applicant insisted
that the
money be paid into an attorney's trust account.
[4]
On 30 September 2010 the respondent furnished the applicant with its
bank account number into which the money had to be paid.
This would
be done against delivery of the motor vehicle together with the
registration documents. In October 2010 the respondent's
legal
advisor, Mr Jan Van Zyl, advised the applicant that he acted for the
respondent and that the money needed to the deposited
into the bank
account which he furnished. Following this, the applicant deposited
the money into the respondent's legal advisor's
account as directed.
The motor vehicle, according to the applicant, despite such payment,
was not returned to it.
[5]
For the respondent to get a replacement motor vehicle, according to
the applicant, the respondent had to return the motor vehicle,
the
spare keys and the Natis documents with the motor vehicle being in
the condition it was in when delivery was taken. The respondent
had
to pay an additional amount of R20 108 46 which would become part of
the amount which the applicant had deposited into its
legal advisor's
trust account. The new purchase price would therefore be R441 045 48.
[6]
The respondent, on 11 February 2011, advised the applicant that it
had deposited the R20 108 46 additional amount into the trust
account
of Mr Jan Van Zyl and that Mr Van Zyl had undertaken to pay the two
amounts over to the applicant as soon as the respondent's
motor
vehicle was delivered to replace the first motor vehicle.
[7]
The respondent, on 12 February 2011, was informed that the
replacement motor vehicle had been found and that the deal needed
to
be concluded. On 4 March 2011 the respondent advised its legal
representative as well as that of the applicant that Mr Van Zyl
would
"decide when to pay the monies across" and that he needed
to do it if, he trusted them.
[8]
The oral agreement confirmed in writing on 6 May 2011, according to
the applicant, ended up being cancelled on 19 May 2011 as
the
respondent, according to the applicant's attorneys, had "failed
to effect payment of the agreed purchase price or to tender
payment
thereof against delivery of the vehicle".
[9]
The oral agreement of 4 May 2011 was to settle the dispute. The
settlement was on the basis that:
1. the respondent had to
purchase the replacement motor vehicle within 7 days from the date of
the return of the old motor vehicle
and against receipt of proof of
payment. The new purchase price would be R441 045 48.
2. The respondent,
simultaneously with the delivery of the old motor vehicle, would
deliver the relevant registration documentation
of the motor vehicle.
3. The agreement would be
cancelled if the respondent failed to pay the purchase price of the
new motor vehicle within 7 days referred
to above.
[10]
On 6 May 2011 the respondent delivered the old motor vehicle to the
applicant. The registration documents sought by the applicant
were
not delivered simultaneously with the old motor vehicle. No payment
of the purchase price, according to the applicant, was
made. The
matter, according to the applicant, was then disposed of on the basis
that the applicant received the old motor vehicle
while the
respondent, received the purchase price that was deposited into its
legal representative's trust account.
THE
ISSUE
[11]
The issue to be resolved is whether the matter was legally disposed
of as contended for by the applicant. The respondent holds
an
opposite view stating that payment to Mr Jan Van Zyl by the applicant
does not constitute payment to the respondent which did
not sanction
such payment.
[12]
The respondent, in its answering affidavit, contends that the
applicant caused an amount of R430 000 00 to be paid into an
account
(not trust account) controlled by Mr Jan Van Zyl. It is the
respondent's contention that:
1. The payment was made
into the account of Jan Van Zyl contrary to the direct instruction
given by it in annexure "MK11"
to the answering affidavit.
2. It did not agree with
the applicant that the amount or any amount be paid to Jan Van Zyl,
and that
3. "the amount was
paid by the applicant to Jan Van Zyl to be held by him, on behalf of
the applicant, to be dealt with as
directed by the applicant and not
the respondent".
[13]
The respondent further contends that:
1. The purchase
consideration should have been paid to the respondent. This as
evidence will show was superseded by Jan Van Zyl's
direction.
2. Jan van Zyl did not
have a trust account as he was not a practicing attorney. This is
contradicted by the respondent as I shall
later show;
3. Jan Van Zyl caused the
funds to be dissipated prior to the return of the motor vehicle. The
applicant does not appear to have
been aware of this.
4. That Jan Van Zyl is
unable to refund the money to the applicant or deal therewith as
directed by the applicant. This appears
to be the case.
[14]
The respondent states that the applicant, in depositing the money
into Mr Jan Van Zyl's account repudiated the agreement which
repudiation the respondent did not accept.
[15]
This brings us to the issue whether Mr Jan Van Zyl duly acted for the
respondent as its agent. Mr Jan Van Zyl, according to
the respondent,
did not act for the respondent but for the applicant.
[16]
On 23 August 2010 Mr Jan Van Zyl advised the applicant:
"Ek
bevestig dat ek namens Mnr Kotze hierin optree".
Mr Kotze is
the deponent to the respondent's answering affidavit. He is Marius
Alwyn Kotze.
[17]
On 19 October 2010 as evidenced by annexure "KDP6" on page
89 of the papers, Mr Van Zyl says:
"Ek bevestig ook
weereens, soos in vorige e-posse dat ek namens Marius hierin optree
en dat ek die nodige mandaat het
om
die aangeleentheid te
finaliseer."
[18]
An e-mail dated 25 August 2010 from the applicant to Mr Jan Van Zyl
clearly demonstrates that Mr Jan Van Zyl acted for the
respondent and
not the applicant. The e-mail clearly refers to "your client".
[19]
A further e-mail dated 11 November 2010 from the applicant to Mr Jan
Van Zyl also demonstrates that Jan Van Zyl, indeed, acted
for the
respondent and not the applicant.
[20]
Another e-mail from the applicant to Mr Jan Van Zyl dated 15 November
2010 refers to
"to your clienf'
again demonstrating the
relationship between Mr Van Zyl and the respondent. An e-mail dated
16 November 2010 from the applicant
to Mr Van Zyl reveals the same
relationship between the respondent and Mr Van Zyl. Again, reference
is made to
"to your client".
[21]
A very important e-mail is dated 3 December 2010 from the applicant
this time, to the respondent. The e-mail refers to
"your
Legal Advisor' .
The respondent never denied that Mr Jan Van Zyl
acted on its behalf. The e-mail starts: "Mr Kotze".
[22]
The last paragraph of an e-mail dated 10 December 2010 refers to
"your legal representative".
Again, the e-mail is
addressed to the respondent by the applicant. The relationship
between the respondent and Mr Jan Van Zyl is
again not denied.
[23]
Mr Jan Van Zyl in an email dated 10 February 2011 addressed to the
applicant says:
"Hi Pieter,
I have discussed the
matter with Marius and my instructions are as
follows:".
This
shows beyond doubt that Mr Van Zyl acts for the respondent.
[24]
E-mail "KDP19" dated 11 February 2011 from Mr Jan Van Zyl
to the applicant demonstrates that Mr Van Zyl acted for
the
respondent. Again, in the last paragraph reference is made to
"I
am
taking instructions and shall revert to you
as
soon
as
possible".
[25]
Another e-mail dated 12 February 2011 by the applicant to the
respondent states:
"Beste
Marius".
Reference is made to
"your prokureur'
and
this is not denied.
[26]
The respondent, in an e-mail dated 4 March 2011, advises the
applicant and Mr Van Zyl that Van Zyl can
"decide when to pay
the monies across"
adding
"If you trust them do it".
Here, the respondent demonstrates the relationship between the
respondent and Mr Van Zyl who can pay the money if he trusts
"them",
meaning the applicant. This is the money which was to be the
purchase price of the new motor vehicle.
[27]
Nobody is left in doubt as to on whose behalf the money was kept by
Mr Van Zyl. The e-mails attached e.g.: that of 4 March
2011 (annexure
"KDP22"), clearly shows that Jan Van Zyl held the money on
behalf of the respondent and that Marius Kotze
directed how Jan Van
Zyl should deal with the money.
[28]
Marius Kotze himself, in the e-mail to the applicant and Van
Zyl,dated 11 February 2011 referred to R20 108 46 which he paid
into
Jan Van Zyl
"se trustrekening'' .
[29]
The applicant in its e-mail to the respondent dated 26 January 2011,
in its last paragraph, refers to the R420 000 00
"wat ons in
jou Prokureur se trustrekening inbetaal het .
..".
[30]
The respondent in paragraph 31 of its answering affidavit states:
"31. Pursuant to
a
telephonic discussion between Pieter Smit and myself on 6
May 2011 I agreed to release the vehicle to the applicant on the
basis
that:
31.1.
The
Applicant's legal representatives would recover the amount paid by it
to Jan Van Zyl;
31.2.
I
would assist therein;
31.3.
I
would be entitled to acquire
a
replacement vehicle upon
recovery of the money paid to Jan Van Zyl;
31.4.
I
did so by reason of the fact that I felt that if the Applicant
directs its resources at litigating with Jan Van Zyl rather than
with
the Respondent it would be more constructive."
[31]
Marius Kotze, the sole director of the respondent, in his e-mail to
the applicant and Van Zyl, dated 4 March 2011 (annexure
"KDP22")
says:
"1. You decide
when to pay the monies across. If you trust them then do it."
This
directly contradicts what he says in paragraph 31 of his answering
affidavit.
[32]
Advocate Kellerman ("Mr Kellerman"), for the applicant,
submitted that the respondent, duly represented, gave instructions
to
Jan Van Zyly to act on its behalf. According to Mr Kellerman, it
cannot be correct that the applicant paid Jan Van Zyl contrary
to the
instructions that were given to it by the respondent. It also,
according to Mr Kellerman, cannot be correct that the applicant
repudiated the agreement as contended by the respondent and submitted
on its behalf. Having regard to the evidence I am inclined
to agree.
[33]
The evidence at the disposal of the Court, in the form of
communications that took place between the applicant and the
respondent
as well as their legal representatives demonstrates that
the respondent's version is highly improbable and does not deserve to
be believed.
[34]
Advocate T. Colyn ("Ms Colyn"), for the respondent,
submitted that there were factual disputes although there was
nothing
in the form of heads of argument that disclosed that. Her argument
was that the respondent did not receive the replacement
motor
vehicle. I wanted to know if the respondent had paid for such
replacement motor vehicle and her answer thereto was that the
respondent had not paid. Her submission was that the applicant, after
the return of the old motor vehicle, ought to have replaced
it. It is
not clear as to how this should have happened when the respondent had
not made payment as agreed.
[35]
Ms Colyn agreed that if Mr Jan Van Zyl had the money the applicant
did not have it. She, however, expected the applicant to
replace the
old motor vehicle even though the respondent had not yet paid for the
replacement motor vehicle. This is obviously
strange in the light of
her earlier concession.
[36]
Ms Colyn conceded that the respondent would get the replacement motor
vehicle upon receipt of the money from Mr van Zyl. Her
submission was
that the respondent should have been given the new replacement motor
vehicle. Asked about payment of the purchase
price therefor, she
answered she could not respond. Indeed, simple logic dictates that
the replacement motor vehicle would be given
upon the return of the
old motor vehicle together with the necessary documents and the
payment of the purchase price. The refund
for the old motor vehicle
was paid by the applicant as directed by Mr Jan Van Zyl. The
respondent paid the R20 045 000 to Mr Jan
Van Zyl who retained and
dissipated both amounts. The applicant did not receive the purchase
price. It would not be proper to expect
the applicant to replace the
old motor vehicle without receipt of the money for the new motor
vehicle. This is the aspect that
Ms Colyn could not properly deal
with in her response to the Court's question.
[37]
Ms Colyn submitted that the applicant ought to have proceeded by way
of an action. The evidence at the disposal of the court
does not
support such submission. The respondent's version is so improbable
that it can be dismissed merely on the papers. (See:
Plascon Evans
Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3)
623 at 624F
and Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C)
at 235E-G).
[38]
Ms Colyn further submitted that the applicant needed to call its
representatives as witnesses and that they ought to be
cross-examined.
I do not agree. Mr Pieter Herculaas Smit, who also
represented the applicant, has deposed to a confirmatory affidavit
which, in
my view, is sufficient.
[39]
Ms Colyn conceded that Mr Jan Van Zyl acted for the respondent and
that one would be justified in accepting that he, indeed,
did act for
the respondent.
[40]
Ms Colyn was constrained to concede that there .was no e-mail or
document which disclosed that the respondent protested that
the money
be paid into Mr Jan Van Zyl's bank account. Again asked if indeed the
respondent deserved to get the replacement motor
vehicle without
paying for it Ms Colyn answered:
"Bizarre as it may sound
that is the agreement'.
Of course, this sounds bizarre. Asked as
to what happened to the money that was paid to Mr Van Zyl, she
answered that
"the money had gone missing from the trust
account".
This again, tells us more about Mr Jan Van Zyl's
trust account.
[41]
Mr Kellerman submitted that the applicant has made out a case for the
relief that it seeks. I agree.
[42]
The applicant applied for condonation for the late filing of its
replying affidavit. The explanation that has been given, in
my view,
is plausible. There was no opposition thereto and condonation ought
to be given and is hereby granted.
[43]
Evidence has established that:
1. The respondent
purchased the motor vehicle from the applicant which sold it to the
respondent.
2. The respondent was
unhappy with the motor vehicle and demanded that the purchase price
it had paid to the applicant be refunded.
The money was paid into Mr
Jan Van Zyl's bank account.
3. For purposes of
settling the dispute it was agreed that the respondent would return
the motor vehicle with its registration documents
to the applicant.
4. The money that the
applicant had paid into Mr Jan Van Zyl's bank account was to be paid
back to the applicant.
5. The respondent was to
add to the money R20 108 46. The money was deposited into Mr Jan Van
Zyl's bank account.
6. the two amounts would
be paid to the applicant as the purchase price for the new
replacement motor vehicle which the applicant
would provide the
respondent with.
7. The two amounts were
never paid to the applicant which then cancelled the agreement.
8. Mr Jan Van Zyl had
instructions to act on behalf of the respondent.
9. The applicant was
entitled to deal with Mr Jan Van Zyl as the only mandated agent of
the respondent. His actions became the respondent's
actions.
10. Mr Jan Van Zyl
received the money that was paid into his bank account on behalf of
the respondent.
11. The applicant is
entitled to the registration documents of the motor vehicle which
must be given to it.
12. This, in any event,
would be in accordance with what the respondent had initially
demanded.
[44]
The applicant, in my view, has duly demonstrated that it is entitled
to the final interdict that it seeks. The application
consequently,
should succeed.
[45]
In the result, the following order is made:
1.
The
respondent is ordered to forthwith deliver to the applicant the
original Natis registration documents of the motor vehicle released
to the applicant by agreement between the respondent and the
applicant on 6 May 2011 to wit a Volkswagen
2010 TS 2.5
TDI bearing
registration number Y[…]GP;
2.
The
respondent, in the event that it has disposed of the original Natis
registration documents of the said motor vehicle, is ordered
to
deliver duly obtained duplicate original Natis documents to the
applicant;
3.
The
respondent is ordered to simultaneously provide duly signed documents
to effect transfer of the registration of the motor vehicle
to the
applicant;
4.
The
respondent is ordered to pay the costs of this application.
_________________________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA