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[2016] ZAGPPHC 1212
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Vyna Tarpaulins CC v Ziyaphenduka Promotions CC (30362/2014) [2016] ZAGPPHC 1212 (7 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: 30362/2014
DATE:
7/10/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
VYNA
TARPAULINS
CC
Plaintiff
And
ZIYAPHENDUKA
PROMOTIONS
CC
Defendant
JUDGMENT
MSIMEKI
J,
INTRODUCTION
1.
The plaintiff, in this action, sued the defendant for payment of R356
030 00 which represents the balance of R1 627 690 00 which
is the
full amount that the defendant had to pay to the plaintiff in terms
of an agreement which the parties concluded on 18 January
2012.
BRIEF
BACKGROUND FACTS
2.
The genesis of the agreement referred to in my introduction is
embodied in a quotation appearing on page 2 of Trial Bundle 1.
The
quotation is annexure A1 to the particulars of claim. The defendant,
on the same date, namely, 18 January 2012, duly represented,
accepted
the quotation and the terms thereof. The plaintiff, in terms of the
agreement, had to manufacture and supply 600 tarpaulins
to the
defendant at a cost of R1 627 690 00. Although paragraph 5.2 of the
plaintiffs particulars of claim states that "payment
of the
purchase price will be made upon the delivery of the tarpaulins, the
quotation states that the defendant was expected to
pay the full
purchase price prior to the commencement of the manufacturing of the
600 tarpaulins. The amount that the defendant
paid, leaving the
balance which it still had to pay, was not paid as stipulated in the
quotation. The defendant, in the summary
judgment application that
the plaintiff brought against it admitted that it owed R56 030 00 and
denied owing the R300 000 00. Judgment,
in favour of the plaintiff,
was granted for the admitted amount and leave to defend was granted
in respect of the R300 000 00 which
the defendant disputed. The
defendant's case is that it paid the plaintiff in full while the
plaintiff denies this. This culminated
in this being the issue that
the Court has to determine.
3.
Advocate R. Raubenheimer and Advocate M. E. Manala represented the
plaintiff and the defendant respectively when the matter was
heard.
4.
As already alluded to above, the issue is whether the defendant has
paid the plaintiff in full.
5.
It is noteworthy that the late Mr Kobus de Beer and his wife, S. M. M
de Beer ("Ms de Beer") were equal members in
the plaintiff
each holding 50% of its membership. The deceased, during his
lifetime, was responsible for the conducting of the
day to day
business of the plaintiff. He concluded the contracts with outsiders.
Ms de Beer was responsible for the financial management
which
included invoicing and accounting.
6.
To prove full payment of the contract price, the defendant discovered
a document appearing on page 6 of the Trial Bundle. The
document is
headed: "Confirmation of payment". It bears the letterhead
of the plaintiff and is dated 15 October 2012.
In issue is the
authenticity of this document.
7.
The court, after the parties' cases have been closed, is charged with
the duty to determine whether or not the defendant has
discharged its
onus of adducing adequate evidence to persuade the Court to find in
its favour.
8.
It is noteworthy that the defendant concluded an agreement with the
Mpumalanga Department of Human Settlement. In terms of the
agreement
the defendant was to assist the communities which had been hard hit
by floods necessitating relief from the department.
The defendant
then entered into the agreement in issue with the plaintiff.
9.
The defendant, in its plea, set up a plea of payment of the R300 000
00 in issue. This, by law, meant that the onus rested on
it to
satisfy the Court "that there is sufficiently strong balance of
probabilities" in its favour. The question, at
the end of the
day, is whether the defendant has discharged the onus. (See:
Pillay
v Krishna and Another
1946 AD 946).
10.
The parties agreed that the defendant, as a result of its plea, had
the duty to begin.
11.
The defendant, to prove that it in fact paid the R300 000 00 in cash
to the plaintiff, called Mr Bruce Kgapane, the Chief-Executive
Officer of the defendant, as its only witness. No expert witness was
called by the defendant.
12.
The plaintiff, to prove its claim, relied on the evidence of two
witnesses, namely Ms de Beer and Mr Jannie Viljoen Bester ("Mr
Bester"), the forensic document examiner and handwriting expert.
The expert's evidence was tendered and adduced by way of
his report
which was delivered in terms of
rule 36(9)(b) of the Uniform Rules
of Court.
The report runs from page 7 to page 12 of trial Bundle
1 and page 67 to page 72 of the Notices Bundle (Index: Notices).
13.
A number of the aspects are common cause and these are that:
1. The agreement between the parties
for the manufacturing and supplying of the 600 tarpaulins at a cost
of R1 627 690 00 was concluded;
2. The quotation forms the basis of
the agreement;
3. The full purchase price was to be
paid by the defendant to the plaintiff prior to the commencement of
the manufacturing of the
600 tarpaulins;
4. Payment was not effected in
accordance with the provisions of the quotation;
5. The plaintiff duly performed its
obligation in terms of the agreement and delivered the tarpaulins to
the defendant;
6. The Court, in the summary judgment
application, granted judgment in favour of the plaintiff in respect
of the R56 030 00 which
the defendant has paid;
7. The deceased and Ms de Beer were
members, in equal shares, of the plaintiff and Ms de beer, after the
deceased passed on has
remained the sole member;
8. The plaintiff's expert report has
been admitted by the defendant which has no expert witness;
9. The expertise of the plaintiff's
expert witness has not been challenged.
10. The result of the examination of
the confirmation of payment of R300 000 00 document by the
plaintiff's expert witness is that
the document has been falsified.
This, indeed, is not in dispute.
14.
Mr Kgapane's evidence, in brief, is as follows:
He was the CEO of the defendant when
the agreement between the parties was concluded. He confirmed that
the plaintiff duly and fully
performed. The defendant, according to
him did not pay as the quotation required as the defendant ended up
paying in instalments.
He testified that he, representing the
defendant, advised the deceased who represented the plaintiff, that
"the defendant
sourced the tarpaulins for the Mpumalanga
Provincial Department of human Settlement, for the purpose of
disaster relief for communities
effected by massive flooding"
and that "the Department would pay the defendant for its
services after 30 or 60 or, even
90 days". The payment method,
according to the defendant, was as a result, changed to payment in
instalments and the money
that the defendant paid amounted to R1 250
000 00. Mr Kgapane testified that the defendant began liquidating its
indebtedness to
the plaintiff even before the defendant was paid by
the Department. This, according to him, resulted from the request of
the deceased
who had informed him that the plaintiff was having
financial problems. Mr Kgapane testified that the defendant, at the
time, experienced
financial problems. His further testimony was that
the deceased, because of the problem, he (the deceased) had with the
South African
Revenue Services (SARS), and his wife, requested Mr
Kgapane to pay the plaintiff in cash. Mr Kgapane testified that he
paid the
deceased R300 000 00 during October 2012 at Savanah mall
where the two had arranged to meet. He, (Mr Kgapane), was given
confirmation
of payment document which he signed. The deceased gave
him a copy of the document while he kept the original. This is the
document
the authenticity of which is disputed by the plaintiff.
15.
The plaintiff's first witness, Ms de Beer testified that she and the
deceased purchased the business of the plaintiff. The deceased
ran
the business and contracted on its behalf while Ms de Beer took care
of the financial management which included invoicing and
accounting.
They both knew the position of the business on a daily basis. They
recorded and accounted for all cash payments which
were made in a
receipt book. She testified that they never used a document similar
to the confirmation of cash payment appearing
on page 6 of the Trial
Bundle. She did not see this document before same was attached to Mr
Kgapane's affidavit resisting summary
judgment application. Every
payment that they received whether received by her or those who would
receive it in her absence was
duly recorded in the books of the
plaintiff. She denied that the deceased met or could have met Mr
Kgapane at the Savannah mall.
She attributed this to the fact that
the deceased was extremely overweight-weighing approximately 300kg's
which caused him to move
with difficulty. The deceased, according to
her, avoided physical activity as far as possible. She emphatically
denied that she
had marital problems with the deceased and that the
deceased had problems with SARS. In substantiation, she testified
that she
was involved in the business prior to the deceased's death
and thereafter when she became the sole owner and member of the
plaintiff.
The agreement between the plaintiff and the defendant,
according to her, represented one of the largest orders that the
plaintiff
had ever received. She and the deceased, because of the
order, celebrated and thereafter discussed about the balance which
the
defendant still had to pay amounting to approximately R370 000
00. The discussion took place long after the alleged payment by the
defendant, but shortly before the deceased's death in December 2013.
She testified about the text messages from Mr Kgapane to the
deceased
confirming the defendants indebtedness to the plaintiff and
requesting favourable terms of payment as late as December
2013.
16.
Mr Bester, the Forensic Document Examiner, was the plaintiff's second
witness. He is also a handwriting expert. His evidence
as already
alluded to earlier, is not challenged. His qualifications are vast
and very impressive. They too, are not challenged.
He has
professional recognition as a Forensic Document Examiner (Forensic
Science, Society, UK) and is a Court qualified Handwriting
expert/document examiner in South Africa. He has been trained in
various aspects of document examination which are,
inter alia,
individualisation of handwriting, signatures, printed matter
which included documentation produced by computer printers, fax
machines
and photocopiers, stamped impressions, the identification of
forgeries
, erasures and additions, and the deciphering of
obscured writing. (my emphasis).
17.
Mr Bester was involved in many disputed document cases which were
completed. He has given expert evidence in more than 70 Court
cases
in the magistrates Courts, Regional Courts, High Courts and Supreme
Courts in South Africa, Namibia, Tanzania, and Swaziland.
He gave
expert evidence in more than 60 disciplinary and arbitration hearings
and rendered document examination services in many
countries. What he
has done is fully disclosed under statement of qualifications and
experience on pages 69 and 70 of the Index
Bundle (Index: Notices).
18.
Mr Bester, in the report, has disclosed the Forensic Document
Examination standards as well as the Examination Methodology that
he
has applied.
19.
His observation and results of the examination as well as his opinion
are key in this matter. He found that "the first
and probably
most important characteristic of the questioned document (1 (one)
copy of a VYNA TARP letterhead with the content
topic, CONFIRMATION
OF PAYMENT document dated 15 October 2012), is that, it is a
photocopy document and not an original document.
Irregular shaped
dots; Random ink splatter and ink drag characteristic on the
horizontal plane in both the left and right directions
are displayed
in the printed content of the letterhead details and the print
details at the Kobus de Beer signature sections. The
characteristics,
according to him, are associated with an ink jet printer process. The
same characteristics, also associated with
the ink jet process are
again displayed in the lines of the Kobus De Beer signature. Smooth
letter edge and absence of irregular
ink splatter are displayed in
the printed content of the information content of the document.
According to Mr Bester, the signature
was produced by a pen signed
process, although it appears on the document in copy form. Striations
associated with a penned signature
process were identified. He
observed that "the various print processes on the document are
not in chronological sequence".
He concluded that the two
printing processes were applied to compile the document and that the
Kobus De Beer signature was produced
by a scanning process after the
original signature.
20.
Mr Baster's opinion is that two different printing processes, a
copying process and a scanning process were used to compile
the
questioned document. This, because the sequence of compiling the
document is irregular and associated with non-authenticity
of a
document. Mr Bester has also attached images of the letterhead
section, Kobus de Beer signature section, content section and
Mr
Kgapane's signature section to explain the different print processes.
The images are, indeed, instructive. In sum, the report
discloses
that the questioned document has been falsified.
21.
It is noteworthy that the parties are in disagreement insofar as what
transpired in this matter is concerned.
22.
To be able to resolve the impasse I need to resort to previous
matters in which principles were set out to enable a Court to
properly resolve the issues. One of the cases in point is
Stellenbosch Farmers' Winery Group Ltd and Another v Martelle cie
& Others
2003 (1) SA 11
(SCA).
There, Nienaber JA, found that
the parties' versions were irreconcilable. There were other
peripheral areas of dispute which had
a bearing on the probabilities.
He then, at page 14 paragraph [5], summarised the technique which
should generally be employed
by the Courts in resolving factual
disputes of this nature.
23.
The Court, according to Nienaber JA, to come to a conclusion on the
disputed issues must make findings on:
"..
.(a) the credibility of
the various factual witnesses; (b) their reliability; and
(c)
the probabilities. As to (a), the court's finding on the credibility
of
a
particular witness will depend on its impression about
the veracity of the witness. That in tum will depend on
a
variety
of subsidiary factors, not necessarily in order of importance, such
as (i) the witness' candour and demeanour in the witness-box,
(ii)
his bias, latent and blatant, (iii) internal contradictions in his
evidence, (iv) external contradictions with what was pleaded
or put
on his behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability
of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying
about
the same incident or events. As to (b),
a
witness' reliability
will depend, apart from the factors mentioned under (a)(ii), (iv) and
(v) above, on (i) the opportunities he
had to experience or observe
the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to
(c), this necessitates an
analysis and evaluation of the probability or improbability of each
party's version on each of the disputed
issues. In the light of its
assessment of (a),
(b) and (c) the court will then, as
a
final step, determine whether the party burdened with the onus of
proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when
a
court's credibility
findings compel it in one direction and its evaluation of the
general probabilities in another. The more convincing the former, the
less convincing will be the latter. But when all factors are
equipoised probabilities prevail."
24.
Mr Raubenheimer submitted that there were discrepancies in Mr
Kgapane's evidence in chief, his evidence under cross-examination
and
in the affidavit that he deposed to when summary judgment was
resisted.
25.
Mr Raubenheimer pointed out that Mr Kgapane, in his affidavit, stated
that the defendant was not paid by the Mpumalanga Provincial
Government which had problems with its internal procurement
processes. This features nowhere in his evidence. Mr Manala, for the
defendant, submitted that the defendant had been paid after 30 days,
prior to 90 days of delivery of the tarpaulins.
26.
Mr Kgapane's affidavit discloses that he negotiated with the deceased
regarding an offer to pay the outstanding amount in instalments.
This
appears nowhere in his evidence in Court. Mr Raubenheimer submitted
that this was also not in line with the argument that
the defendant
received a once-off payment.
27.
Mr Kgapane, in his affidavit, says nothing about the difficulties
which the deceased had with his wife, Ms de Beer.
28.
Mr Kgapane's affidavit is silent on the deceased's request not to
receive the cash amount immediately.
29.
That Mr Kgapane paid the deceased R300 000 00 at Savannah mall
appears nowhere in his affidavit.
30.
Mr Kgapane, in his affidavit, does not mention that he does not have
the original of the alleged confirmation of payment document.
31.
Mr Raubenheimer submitted that the fact that Mr Kgapane alleged that
he utilised virtually all the cash he withdrew from his
personal
account and the defendant's account during a period of time which
stretches several months to pay the deceased is farfetched
and
offensive and wondered how and why Mr Kgapane could utter such a
statement. Mr Kgapane, in Mr Raubenheimer's view, is the only
person
who stands to benefit from the utterance of such a statement. There
appears to be merit in the submission.
32.
Mr Raubenheimer submitted that Mr Kgapane's evidence was replete with
improbabilities and he cited the following as examples:
1. Mr Bester demonstrated that the
document which is said to have been brought by the deceased could not
have been an original document.
2. There would have been no reason for
the deceased to forge the document and that any suggestion to say
that the deceased forged
the document is farfetched and offensive.
3. That the deceased initially wanted
cash but later requested Mr Kgapane to wait before making such
payment.
4. That the deceased asked the
defendant to wait before making payment of the approximately R70 000
00.
5. The fact that Ms de Beer and the
deceased discussed the defendant's debt and that the deceased showed
her the text messages from
Kgapane confirming the existence of the
debt as late as December 2013, is relevant to the probabilities and
clearly, according
to Mr Raubenheimer, demonstrates and confirm the
plaintiff's claim.
33.
The fact that the deceased had problems with SARS and his wife; that
the deceased requested that payment be made in cash; that
the
deceased changed the arrangement and required Mr Kgapane to wait
before effecting payment; that the deceased collected the
R300 000 00
just when the money that was withdrawn from his account and that of
the defendant constituted the required amount that
the plaintiff had
needed and that the deceased asked Mr Kgapane to wait before paying
the approximately R70 000 00, according to
Mr Raubenheimer,
demonstrated only the improbability of the defendant's version. This
appears to be a plausible submission.
34.
Mr Raubenheimer further submitted that even if the court found that
the improbabilities do not favour the plaintiff, it cannot
be said
that the defendant sufficiently discharged its onus. On a balance of
probabilities, the defendant, according to Mr Raubenheimer,
has
failed to discharge the onus which rested on it. I agree.
35.
It is noteworthy that Mr Kgapane, according to his version, signed a
document which already had been signed by the deceased.
Mr Kgapane
was informed that the confirmation of payment document was falsified
and his response thereto was: "Did the expert
elaborate?"
Meaning if the expert provided a reason for so stating. He was
informed that the document was produced as a result
of two processes
that were applied. He firstly denied that but quickly changed and
said that he could not deny that and added that
he merely signed the
document.
36.
Asked, under cross-examination, why the defendant could not pay the
plaintiff the approximately R70 000 00 immediately, Mr Kgapane
testified that they had cash flow problems. He changed the version
and stated that they did not have cash flow problems as they
only
paid according to instructions. His other version was that the
defendant could not pay the full R370 000 00 because he had
not
received such an instruction.
37.
Mr Kgapane was asked to explain why the deceased would not accept the
entire amount if he had desperately needed money because
of the
problems that he had, he responded by saying that the question should
be directed to the deceased. It was ultimately suggested
to him that
he had no answer to the question. Asked why he could not withdraw the
R300 000 00 and pay the plaintiff, his answer
was that it was risky
to withdraw an amount of R300 000 00 yet he, according to his
evidence, paid the deceased R300 000 00 at
Savannah mall on 15
October 2012.
38.
Mr Kgapane was asked if he had informed his attorneys that the
deceased had refused to accept payment of R70 000 00 and he answered
that the deceased had not refused to accept the R70 000 00. The
deceased, according to him, would advise him when the money would
be
needed.
39.
Mr Kgapane was a number of times told by Mr Raubenheimer that his
version was farfetched, had material differences and that
the
probabilities favoured a finding that he had not paid the R300 000
00. Mr Kgapane's version, indeed, supports this view.
40.
Unlike Mr Kgapane's evidence which is replete with improbabilities
and contradictions, Ms de Beer's evidence is largely undisputed.
She
was never shaken under cross-examination. She was honest reliable,
credible and trustworthy. It is impossible not to accept
her version
which is bolstered by Mr Bester's evidence.
41.
The defendant's version is improbable, unreliable and contradictory
as demonstrated above. The version can safely be rejected
and it is
so rejected.
42.
I safely find that:
42.1. The defendant did not pay the
R300 000 00 to the deceased at Savanah mall on 15 October 2012. The
defendant, through Mr Kgapane,
fabricated and forged the confirmation
of payment document.
42.2. The defendant, on its own
version, paid R21 660 00 on 4 May 2013 but that the payment related
to toilets. This simply means
that the R21 660 00 had nothing to do
with the agreement that the parties concluded in respect of the
tarpaulins. Effectively,
the defendant still has to pay the R21 660
00 which the plaintiff thought had been part payment of the debt of
R1 627 690. The
amount, therefore, remains due, owing and payable by
the defendant to the plaintiff.
42.3. The amount of R321 660 00
remains unpaid. The amount is due, owing and payable.
42.4. The amount ought to have been
paid on 31 January 2012 when the goods were delivered.
42.5. The plaintiff is entitled to
payment of interest at the rate of 15.5% calculated from 31 January
2012 to date of payment.
42.6. The conduct of the defendant and
as correctly submitted by Mr Raubenheimer, should not be
countenanced. The defendant's conduct
was calculated to deny the
plaintiff's claim. The costs on the scale as between attorney and
client, again, as correctly submitted
by Mr Raubenheimer are
warranted.
43.
The plaintiff's claim in the amount of R321 660 00 consisting of the
R300 000 00 and the R21 660 00 against the defendant should
succeed.
ORDER
44.
In the result, I make the following order:
1. Judgment in favour of the plaintiff
for payment of the amount of R321 660 00 against the defendant is
granted.
2. The defendant is ordered to pay
interest on the aforesaid amount a
tempora mora
at the rate of
15.5% calculated from 31 January 2012 to date of payment.
3. The defendant is ordered to pay the
costs of suit on the scale as between attorney and client.
_______________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA