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[2016] ZAGPPHC 1158
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Nakana v Kwinana (48754/2012) [2016] ZAGPPHC 1158 (11 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.:48754/2012
REPORTABLE:
NO
OF
INTEREST TO OTIIER JUDGES: NO
REVISED:
YES
DATE:
11/10/2016
In
the matter between:
LEBEKO
MOSES
NAKANA
PLAINTIFF
and
NTOMBIYAKHE
KWINANA
DEFENDANT
Heard:
21 May 2015
Delivered:
11 October 2016
JUDGMENT
A.A.L
OUW J
Introduction
[1]
The applicant/plaintiff (hereinafter referred to as plaintiff)
launched an application against the respondent/defendant (hereinafter
referred as the defendant) for the return of certain goods in a house
in […].
[2]
The defendant opposed the application. The plaintiff replied to the
defendants opposition.
[3]
The application was referred to oral evidence by an order of Bosman
AJ dated 14 November 2012.
[4]
On 23 April 2013 the matter came before Preller J and after some
deliberations an order was made ordering for an inspection
to be
conducted, for the result of the inspection to be recorded in terms
of the order, and for the matter to be referred for trial.
This order
was executed and caused a notice in terms of rule 36(10) dated 9 May
2013 and served on the defendant on 10 May 2015.
[5]
The house referred to in the first paragraph above is house [...] in
[...], in which estate the defendant and associated entities
own a
number of properties. This estate is an up-market estate situated in
Midrand.
[6]
The parties together with their representatives met at the house the
on 24 April 2013 and a list of furniture of 58 items was
compiled.
The list was accompanied by 58 photographs. In terms of paragraph 2
of the court order the defendant had to indicate
the ownership of
which of those assets she disputed. In the context it means that she
had to say which of those assets she claimed
as hers and therefore do
not belong to the plaintiff. The plaintiff claims all assets as his.
[7]
The concluding part of the rule 36(10) notice in which the 58 items
are listed state:
"Please
take
further
note
that
if
you,
or
any
other
person,
dispute
the
applicant/plaintiff's claim
to
the
items
mentioned above
you should do so
in writing
within
10(ten)
days
of
receipt
of
this
notice.”
[8]
The usual function of a rule 36(10) notice is not for a party to
admit or deny ownership, but instead to admit or deny photographs.
The passage at the end of the notice was clearly inserted in an
attempt to apply with the order of Preller J. It was only during
cross-examination that the defendant heard about the existence of
this notice.
[9]
The defendant is a chartered accountant running a firm Kwinana &
associates. From the evidence it appears that she is also
a business
woman and engaged in property development. This is done through a
company Slipknot Investments 74 (Pty) Ltd and, it
seems, other
entities associated with her or her family. For simplicity's sake, as
nothing turns on it, I shall simply refer to
the defendant's
property.
[10]
During the beginning of 2011 the plaintiff entered into a written
lease in respect of house [...] in the estate. He fully furnished
that house. It was later agreed that the plaintiff move to house
[...] as he preferred that house. No new lease agreement was entered
into but the lease at the amount of R20 000 per month simply
continued.
[11]
During this period a working relationship developed between the
plaintiff and the defendant. He was contracted by the defendant
as
project manager in respect of a number of houses she was building in
that estate.
[12]
During the period he was working for her, she transferred huge
amounts, running into millions, into his account. At some stage
the
relationship must have soured for she appointed a private
investigator, Mr Kitching, to investigate the affairs of the
plaintiff.
The defendant's version is that on 7 December 2011 she and
the private investigator met with the plaintiff and he confessed. He
agreed to leave the property, house [...], by 9 December at 17h00. He
also agreed that all his possessions may remain in that house
until
he has paid the amount of R522 000. This alleged meeting and
agreement was at the club house of the estate. It is astounding
that
nothing of this meeting as well as the alleged agreement was put to
the plaintiff in cross-examination neither did it feature
in any of
the affidavits the defendant made in this case. There were other
applications beside this one. She did not mention this
version in any
one of three affidavits.
[13]
On the afternoon of 9 December 2011 the plaintiff left the estate to
visit his brother. He was out of the estate for approximately
three
hours. When he returned he was told by the security that he was not
allowed to enter. This instruction was, according to
the evidence of
the defendant, given by her personally as she went to the entrance
gate to sign the necessary document in that
regard.
[14]
The plaintiff was thus locked out of his residence and even his
personal items like clothing, toiletries, and laptop remained
there.
His BMW X5 was also at the house.
[15]
The defendant's attitude is that he owed her money and that she
therefore locked him out until he had repaid everything he
had to pay
her. The plaintiff was of the opinion that he owed only R 150 000
which he paid. On 22 June 2012 he received an email
which reads:
"Pay
R250 000 and you will have access to whatever I have for you in my
possession."
[16]
It is interesting to note the ambivalent tone of this email.
[17]
From 24 June to 29 July the plaintiff paid the full R250 000 as
agreed but was still denied access to his goods.
[18]
The plaintiff demanded further money. She send an sms dated
1August 2012:
"Pay
R122 800 and you will have access to whatever I have for you in my
possession.”
It
is striking that the wording of this sms is the same as the previous
one namely with that qualification "whatever I have
for you in
my possession".
[19]
This led to a letter by the plaintiff's attorneys dated 20 August
2012 as follows:
"Please
note that your client has once again gone back on her word and
demanded another payment from our client in order to
settle the
matter even though the matter was indeed settled as per our last
letter.
We
have been instructed that your client on 1 August 2012 made another
proposal to our client in order to settle the matter.
Your
client demanded payment in the amount of another R122 800-00 and
indicated that if such payment is received our client will
have
access to his assets currently being held by your client.
In
view of the history of the matter and in order not to drag this
matter out any longer, our client agreed to pay the amount of
R122
800-00 as a final settlement of the matter.
Our
client therefore paid the amount of R122 800-00 by way of the
following payments:
1.
R22 800-00 on 2 August 2012;
2.
R20 000-00 on 7 August 2012;
3.
R80 000-00 on 19 August 2012.
Your
client indicated that as soon as the money showed on her account she
would release our client's assets.
Our
instructions are that same have not been released, and we await your
written confirmation before 12:00 on 21 August 2012 that
our client
can collect his assets, failing which we will have to approach the
court for the relevant relief on an urgent basis."
[20]
Despite the fact that the plaintiff also paid this amount the
defendant still refused to hand over anything. When the
application was before Bosman AJ on 14 November 2012 he ordered the
return of the BMW as well as all personal items, such as clothing
to
the plaintiff.
[21]
Thus the dispute at this stage is only about the furniture as listed
in the notice in terms of rule 36(10).
Having said
this, the plaintiff's claim still
remains as per his declaration.
[22]
The plaintiff made a good impression as a witness. He cannot be
faulted for long after he purchased the goods not being in
the
possession of proof of purchase any more. Nothing emerged in
cross-examination which can affect his credibility.
[23]
The same cannot be said for the defendant. Her evidence was that she
in total paid R3,3 million to the plaintiff of which R450
000 was for
furniture for house [...], which she wanted to rent out as a
furnished house. The house is the property of a family
trust whilst
she claims that the furniture is the property of the company
Slipknot.
[24]
The least that can be expected of a chartered account managing a
company where such a relatively big amount is an issue is
to be able
to show how R450 000 was spent with reference to bank statements,
invoices etc. Apparently her attorney also expected
that for the
following passage is to be found towards the beginning of her
evidence in chief:
"And
then the other thing, Ms Kwinana, the honourable court asked you
specifically if you had not... If ... How much did you
pay over to
Lubekwa to buy this furniture and then you give... You gave the exact
figure. So are you keeping records of everything
and is that because
you are an accountant? - I am keeping the records. Hence I know that
this is the amount... These are the amounts
I paid and for what
purpose.
It
is not as if there was just a blank cheque to... [intervene]. -
No.
You
knew what was bought and you checked? - Yes.”
[25]
The defendant then proceeded to testify that the plaintiff kept the
invoices and because he was at that stage still trusted
and regarded
as part of the family, she did not insist in getting the invoices
from him. In the circumstances one would have expected
a rule 35(3)
to have been served on the plaintiff's attorneys.
[26]
In any event an invoice is not the only part of a bookkeeping system.
The defendant should have been able to identify
by entries in
the company's books what amounts were paid when to the plaintiff to
buy the furniture with.
[27]
From the outset the defendant was argumentative and started off her
evidence by the following:
"My
Lord, I was... I just want to show you that, today you are dealing
with a professional con artist.
COURT:
Yes? - And then the forensic investigation also found out that, in
fact, Moses Lubekwa is wanted by Interpol... [intervene].
Ms
Mbanjwa... Just a moment... Ms Mbanjwa, how can I listen to any of
this evidence when it was not put to the plaintiff?"
[28]
Another example of her argumentative stance is that when it was put
to her that she locked out the plaintiff on 9 December
she denied,
apparently having in mind locking out with a key and insisted that
she went to the security to sign documentation and
arrange
that
the plaintiff be prohibited from entry. This is locking out in the
ordinary sense of the word.
[29]
The evidence shows that the plaintiff had furniture before he
received any money from the defendant for the alleged purpose
of
buying furniture for house [...]. She visited him at house [...]
where he first stay and saw that the house was furnished.
[30]
Whilst the plaintiff alleges in paragraph 8 of the declaration that
he fulfilled his obligations in terms of the oral rental
agreement
that is denied by the defendant. This is a false denial. The
defendant in fact deducted the R20 000 rental from his salary.
She
testified that he never breached the rental agreement. Thus she did
not have the lessor's hypothec in respect of movable goods
but simply
kept his goods for an unrelated purpose. Thus she took the law into
her own hands and resorted to self-help.
[31]
Crucially she did not call Mr Kitching about the alleged meeting at
the club house on 7 December 2011. He could have confirmed
the
agreement set out in paragraph 12 above.
[32]
I accept the plaintiff's evidence and reject that of the defendant.
The furniture claimed in the declaration belong to the
plaintiff.
[33]
In ordering the defendant to return the goods, I shall make provision
for a reasonable period in order that the plaintiff can
make
alternative arrangements for the lessee in the property.
[34]
The order is therefore as follows:
1.
The defendant is ordered to on or before
31
October 2016 make available for collection by the plaintiff the
following items:
The
main bedroom
1.1.
Bedroom suite
1.2.
Three piece couches
1.3.
Carpet
1.4.
Flat screen TV
1.5.
TV stand
1.6.
Curtains and decor
Bedroom
2
1.7.
Base set
1.8.
Head boards
1.9.
Storage box at foot of bed
1.10.
Carpet
Bedroom
3
1.11.
Base set
1.12.
Head boards
1.13.
Storage box at foot of bed
1.14.
Carpet
TV
room
1.15.
Three piece couches
1.16.
TV stand
1.17.
Flat screen LCD TV
1.18.
Home theatre system
Study
1.19.
Glass top table with six chairs
1.20.
Study desk and chair
1.21.
Lenovo computer
1.22.
Printer
Sitting
room
1.23.
Leather couches
1.24.
Coffee table
1.25.
Flat screen LCD TV
1.26.
TV stand
Bar
1.27.
One bar unit
1.28.
Mini fridge
Dining
room
1.29.
Dining table with eight chairs and serving set
1.30.
Double door fridge
1.31.
Washing machine
Garden
1.32.
Garden table with chairs
1.33.
Garden round table with two chairs
Others
1.34.
Curtains throughout the house
1.35.
Crockery and cutlery
2.
The defendant is ordered to pay the costs of the
application/action including all reserved costs.
_____________________
A.A.
LOUW
Judge
of the High Court