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[2016] ZAGPPHC 1177
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DPI Plastics (Pty) Ltd t/a Incledon v Thamandla Construction and Maintenance CC (33595/2014) [2016] ZAGPPHC 1177 (29 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
29/11/2016
CASE
NO: 33595/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
DPI
PLASTICS (PTY) LTD T/A
INCLEDON
Plaintiff
And
THAMANDLA
CONSTRUCTION AND MAINTENANCE
First
Defendant
CC
(REGISTRATON NO. 2008/091368/2053
THABO
MOROBELA (ID NO. 771221424081)
Second Defendant
JUDGMENT
M
L SENYATSI AJ
Introduction
[1]
The plaintiff instituted action proceedings in terms of which it
sought payment in the amount of R1 845 036.68 relating to the
goods
sold on credit. At the end of the plaintiffs case the first and
second defendants (the defendants) launched an application
for
absolution from the instance.
[2]
The cause of action by the plaintiff is for goods sold and delivered
at the instance of the first defendant amounting to R1
845 036.68 and
as stated earlier the goods were sold in terms of the credit
agreement
[3]
[4]
The initial credit limit granted by the plaintiff to the defendants
was for R200 000 and this credit limit was subsequently
increased to
R400 000.
[5]
The defendants filed the appearance to defend and excepted to the
particulars of claim on various grounds such as the computation
of
the quantum.
[6]
It was as a result of the notice of exception to the particulars of
claim that the quantum was amended to be what is before
the court.
[7]
At the hearing of the matter, the parties agreed and it was so
ordered by the court that items 8 and 9 of the particulars of
claim
would be separated.
[8]
In its plea, the first defendant admitted that it applied for a
credit facility and was represented by the second defendant
as
averred. The first defendant denied ever using the facilities it had
applied for and that the goods were sold at its instance
and
delivered to it as averred. It further denied having entered into any
sale agreements with the plaintiff and further denied
that the
plaintiff was entitled to debit its account and that it made payments
to the plaintiff in respect of the account and/or
credit facility.
[9]
In the alternative, the first defendant pleaded that should the court
find that the defendant did indeed conclude any purchase
and sale
agreements with the plaintiff, which the first defendant denied:
[9.1]
the first defendant only applied for a credit facility with a limit
of R400 000 which was granted by the plaintiff;
[9.2]
the limit was never increased;
[9.3]
consequently it is only liable up to R400 000 to the plaintiff.
[10]
The plaintiff called two witnesses to testify, namely Robison Mogale
Patji and Glynis Vanita Bok.
Robinson
Moaale Patil
[11]
The first witness to testify in support of the case of the plaintiff
was Mr Robison Mogale Patji, who has been in the employ
of the
plaintiff for the period of 26 years, this includes being as a sale
representative for the past seven years. His duties
included amongst
others seeking business for the plaintiff in particular that which
emanated from Black contractors.
[12]
The essence of his testimony is that he came to know about the
defendant during 2012 when a colleague of his originated its
account.
[13]
He testified that he never met Mandia Minisi and stated that he knew
Thabo Morobela who he met in Mondeor next to the Mondeor
Police
Station.
[14]
He referred the court to page 49 of the bundle of evidence which
contained an order, which on the face of it, came from the
first
defendant.
[15]
He further testified that the order was made by Godfrey Molema
("Godfrey")
in the presence of Thabo Morobela who
was silent at the first meeting and that delivery of the goods was at
15823 Stratford Extension
9, Orange Farm. According, to him Godfrey
would contact and inform him of the bill of quantities.
[16]
When the first order was made, Godfrey called him to his office. He
got lost on his first visit and could not find the address
and kept
calling Godfrey by phone.
[17]
When he eventually arrived at the address, it was a private house
with a wall containing the name Thamandla, which is the first
defendant's name. Eggbert Mwale and the tea lady were at the
residence.
[18]
He met Godfrey and Thabo and remembered he had met Godfrey before but
it was the first time that he met Thabo Morobela.
A
man by the name of Sakkie Monamodi
("Sakkie")
was
introduced as the site manager. He was then informed that Sakkie
would be the man to call if there were problems on site.
[19]
Every person present at the meeting was introduced as representing
the first defendant.
[20]
The parties agreed, in relation to the order on page 49, that the PVC
pipes would be delivered first.
[21]
Mr Patji went on to refer to various delivery notes which were in
terms of the orders
[22]
He testified that he was not involved with payments of the customer
accounts and that the accounts department of the plaintiff
was
responsible for payments.
[23]
He was informed by Godfrey that they needed more materials which were
in excess of the credit limit.
[24]
Godfrey and Thabo went to the plaintiff's offices and were referred
to Glynis Bok in the credit department.
[25]
The two were the same people he had seen at the first meeting in
Mondeor.
[26]
He testified that he never saw Thabo again as he dealt more with
Godfrey.
[27]
After that meeting everybody at the plaintiff's offices was excited
because of the large orders from the first defendant.
[28]
The court was referred to page 153 which was a delivery notice of
materials to an address known as 368 Endymion Winchester
Hills,
Johannesburg.
[29]
The court was referred to page 19 which contains an e-mail by Eggbert
Mwale for S. Monamodi & Daughter C.C.. He claimed
he did not know
S. Monamodi.
[30]
The court was referred to page 20 which was an order by the first
defendant to the plaintiff.
[31]
He further testified that Godfrey called him on 31 May 2016 and said
Sakkie Monamodi needed certain material. This Sakkie Monamodi
is
probably the same S. Monamodi whom the witness had claimed earlier
that he did not know.
[32]
He testified to court that Sakkie Monamodi was also called the "Old
man".
[33]
He testified in chief that the list of documents in relation to the
statement on page 16 of the bundle of evidence related
to every order
number as invoiced.
[34]
Mr Patji testified that he had been to the construction site in
Orange Farm and noted two boards with the inscriptions Joburg
Water
and Thamandla, respectively. He visited the site on five occasions
and the site foreman was Sakkie Monamodi.
[35]
He met Godfrey and Sakkie at the Christmas party and was surprised
that the first defendant contended that it never bought
the goods
from the plaintiff.
[36]
Godfrey, so the testimony went by Mr Patji, even confirmed, on being
confronted telephonically by the attorney for the plaintiff,
who had
put the phone on speaker that he worked for the first defendant.
[37]
Mr Patji told the court that he even knew about the purchase of three
Toyota Fortuner motor vehicles that the first defendant
purchased for
its team and that Sakkie Monamodi was allocated a blue Toyota
Fortuner. He further knew about the purchase of three
Mitsubishi
LDV's.
[38]
Under cross-examination, Mr Patji conceded that he did not complete
the credit application form as it was completed before
he took over
the account and would not know the identity of the person who
completed the credit application form. Mr Patji was,
furthermore,
unable to identify the member of the first defendant Mr Thabo
Morobela who was, according to Mr Myburgh for the defendants,
sitting
in court. He conceded during cross examination that he never verified
Thabo Morobela's identity and simply dealt with someone
that Godfrey
told him was the same Thabo Morobela who completed the credit
application.
[39]
Mr Patji would not deny that he never dealt with the correct Thabo
Morobela and actually never called Thabo Morobela on the
mobile
number reflected on the credit application form.
[40]
There was a further concession made by the witness that he never
visited the defendant's address reflected on the credit application
form but visited an address in Winchester Hills, Johannesburg to meet
Godfrey as opposed to the address chosen on the credit form
which is
11-68 Block G, Soshanguve, in Tshwane.
[41]
He further admitted that he never called Thebo Morobela and Mandia
Minisi as the only two members of the first defendant who
could
legally bind the first defendant.
[42]
It was further admitted that the telephone number which the witness
used to make contact was not the one .on the credit application
form.
The two members of the first defendant provided their mobile contact
numbers to the plaintiff and the witness admitted that
he never used
these contact numbers.
[43]
The witness was shown the registration number of the truck that
collected the goods as being MRZ 919 GP and the truck belonged
to a
Mr Monamudi.
[44]
Another vehicle with registration number CN 08 FX GP also collected
the goods and that vehicle also belonged to Mr Monamudi.
[45]
It was further conceded by Mr Patji that all the goods sold related
to water reticulation projects.
[46]
Another vehicle with registration number BJ 50 ZBG which also
collected the goods belonged to Mr Munyai and it was put to the
witness that that person was unknown to Mr Thabo Morobela.
[47]
It was furthermore conceded that no enquiries were made that the
first defendant was awarded the water reticulation tender
in Orange
Farm.
[48]
All the persons who signed for the goods were never employed by the
first defendant and the witness.
[49]
The witness conceded furthermore that S. Monamodi & Daughter C.C.
probably referred Sakkie Monamodi, who has no relationship
with the
first defendant and who is the same Sakkie introduced to him by
Godfrey as the site manager.
Glynis
Vanita Bok:
Glynis
Vanita Bok
("Ms Bok")
was called as the second
witness to testify on behalf of the plaintiff. She was the sales
credit control supervisor for the plaintiff
at the time the alleged
sales took place. She had 25 years' experience. Her duties involved
the monitoring of accounts on credit
and that as soon as an account
was over the limit granted in terms of the credit application form,
she would call the customer
for payment in order for the account to
be within the limit.
[50]
She had never met Thabo Morobela.
[51]
All she remembered was that two gentleman came to her office at the
premises of the plaintiff and requested an increase of
their credit
limit.
[52]
The gentlemen claimed to represent the first defendant and the credit
limit was increased from R200 000 to R400 000. She confirmed
the
increase through an e-mail.
[53]
She could not identify Thabo and the other gentleman.
[54]
She testified that she knew Sakkie Monamodi very well as he held a
credit account with the plaintiff but was not allowed any
credit
limit as he did not conduct his credit properly with the plaintiff.
[55]
She called someone called Thabo and discussed the payment of the
account. She admitted knowledge of the e-mail from Eggbert
Mwale to
Mr Patji relating to payment of the account.
[56]
As far as she was concerned only members of a close corporation would
be able to bind the close corporation.
[57]
She also testified that a resolution agreeing to the increase of the
credit limit of the account of the first defendant ought
to have been
required by the plaintiff.
[58]
The witness never verified the identities of the two gentlemen who
came to her office to ask for the increase of the credit
limit of the
first defendant. She did not make copies of the identity documents.
[59]
She had been informed by Kobus who these gentlemen were. She never
varied the terms of the agreement in terms of clause 21
of the credit
application form.
[60]
The approval of the increase of credit limit was done, according to
her, by someone in the department of the plaintiff.
[61]
When asked to comment about the e-mail from Eggbert Mwale to Mr
Patji, she conceded that on the face of it, if the e-mail had
come to
her attention, she would have been concerned.
[62]
She further conceded that nobody called the members of the first
defendant to verify the identity of Eggbert Mwale and whether
Eggbert
had the authority to bind the first defendant.
[63]
The witness stated to court that had Mr Sakkie Monamodi came and
asked for an increase of the credit limit of the first defendant
this
would not have been granted.
[64]
She conceded that the goods were delivered to Mr Monamodi through a
company called S Monamodi Water Reticulation and Sewer
Construction.
[65]
She was never shown the founding documents the first defendant and
has never met the members of the first defendant.
[66]
The demand letter sent to the first defendant was, according to her,
sent to Eggbert Mwale.
[67]
It was put to her that the members of the first defendant never
ordered any of the goods claimed to have been sold to the first
defendant and that the goods were in any event not delivered to the
address indicated on the credit application form.
[68]
The court also heard from this witness that when an increase of
credit limit application is made and approved, the identity
copies of
the people seeking such increase on behalf of the company are never
required.
[69]
After the witness had completed her testimony, Mr Hitchings for the
plaintiff asked to be permitted to call his instructing
attorney to
testify.
[70]
The application was opposed by Mr Myburgh on behalf of the defendants
on the ground that the attorney had sat throughout the
proceedings
and heard all the evidence led by the plaintiff's witnesses.
[71]
The application was not granted and the plaintiff closed its case.
Legal
principles on absolution of the instance:
[72]
In this the case, the plaintiff carried the burden of proof on a
balance of probabilities to make a
prima facie
case that the
goods were sold and delivered to the first defendant
[73]
The court has to assess the evidence presented thus far to determine
whether or not a
prima facie
case has been made out by the
plaintiff to which the defendants must answer.
[74]
If at the end of the plaintiff's case there is not sufficient
evidence upon which a reasonable court could find for the plaintiff,
the defendant is entitled to absolution.
[1]
[75]
At the end of the plaintiff's case, the defendants applied for
absolution from the instance.
[76]
It is trite law that the test to be applied in determining the
question whether the defendants' application for absolution
from the
instance should be granted is not whether the adduced evidence
required an answer, but whether such evidence held a possibility
of a
finding for the plaintiff, that is say whether a reasonable court can
find in favour of the plaintiff.
[2]
[77]
The court has the power, which it may exercise in its discretion, to
allow a party who has closed his case to re-open it.
[3]
[78]
Such power may be exercised in favour of a plaintiff even after the
defendant has closed his case, and a
fortiori
it may
be exercised immediately after the plaintiff has closed his case.
[4]
[79]
A court will refuse an application for absolution from the instance
at the close of the case for the plaintiff unless it is
satisfied
that no reasonable man would draw the inference for which the
plaintiff contends.
[5]
[80]
Where more than one defendant is sued, the court has applied guidance
in
Putter
v Provincial Insurance Co Ltd and Another
1963
(4) SA 771
(WLD) at 772A-D. The fact that more than one defendant is
joined in an action is not a circumstance of itself justifying
departure
from the principles governing the proper exercise of the
court's discretionary powers. Each case depends upon its own
merits.
[6]
[81]
In
Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge
(Pvt) Ltd
1971 (4) SA 90
(RA) the court held that if the defence
raised by the defendant is something peculiarly within the knowledge
of the defendant and
the plaintiff has made out some case to answer,
the plaintiff should not lightly be deprived of his remedy without
first hearing
what the defendant has to say.
[82]
It is common cause that a credit application form out which an
agreement ensued was concluded by the parties in this case.
[83]
It is also common cause that the main witness of the plaintiff was
not involved at the opening of the credit line account by
the first
defendant.
[84]
The evidence led demonstrated that the initial account sales
representative who was assigned to the first defendant's account
never introduced Mr Patji to the two critical members of the first
defendant, namely Mr Thabo Morobela and Mr Mandia Mnisi.
[85]
It is furthermore, common cause that upon being called by Godfrey,
who claimed to represent the first defendant, Mr Patji simply
accepted that Godfrey had to have authority to transact on behalf of
the first defendant without verifying the details of the identity
copies of the members from the first defendant's records with the
plaintiff.
[86]
It is also common cause that Mr Patji himself, in his own evidence,
never verified that he was actually dealing with the correct
duly
authorised employee or representative of the first defendant.
[87]
Mr Patji simply accepted, without verifying, on visiting a private
house in Winchester Hills which purportedly had the first
defendant's
name, that that had to be the first defendant's premises and that the
people he met had authority to act on behalf
of the first defendant.
[88]
Mr Patji did not lead evidence to show that he used the contact
details provided for in the credit application form and that
he was
indeed dealing with the members of the first defendant with the
actual or ostensible authority to bind the first defendant.
[89]
He could not deny that all the trucks that collected the goods did
not belong to either the first defendant or agents duly
authorized by
the first defendant.
[90]
Ms Bok, the second witness for the plaintiff could not assist the
court insofar as the identity of the members of the first
defendant
was concerned.
[91]
When the application for the increase of the credit limit was dealt
with by Ms Bok, she made no attempt to verify the identities
of the
two people ostensibly acting on behalf of the first defendant. She
had all the resources at her disposal to ensure that
they were the
people they claimed to be. No acceptable explanation was provided as
to why this was not done.
[92]
It is common cause from the evidence that in fact the goods were
delivered to one S. Monamodi who was not employed by the first
defendant. The only inference to be drawn is that this was Sakkie
Monamodi, who was not allowed to transact for his own account.
[93]
It is also common cause that various goods were sold on credit and
debited to the first defendant's account with the plaintiff.
[94]
What has become apparent to this court, is that the goods sold could
possibly not have been at the instance of the first defendant
or its
members.
[95]
The authority of Godfrey and another person linked to him was
contested by the defendants.
[96]
The plaintiff has failed to plead in its pleadings that the said
Godfrey either had actual or ostensible authority to bind
the first
defendant.
[97]
Furthermore, the plaintiff has not only failed to plead ostensible
authority as alleged but has failed to further plead in
replication
to the defendants' plea, that they were estopped from denying the
authority purportedly given to Godfrey or Eggbert
Mwale.
[98]
The plaintiff has furthermore not pleaded undue enrichment or led
evidence showing that the defendants were unduly enriched
at its
expense.
[99]
What is apparent to this court is poor administrative oversight by
the representatives of the plaintiff, which in my view,
led to people
not linked to the first defendant being allowed to transact on the
account of the first defendant.
[100]
No evidence was led to show how the identity of their customers is
dealt with. This was demonstrated by the evidence of Ms
Bok from the
credit control office when she admitted to this court that as
process, the plaintiff never makes copies of the identities
of the
people representing their customers on matters of credit adjustment.
This is a gap that in my view, can ensure that fraud
is adequately
managed.
[101]
It has been established that in fact, Godfrey, Sakkie Monamodi and
Eggbert Mwale embarked on a scheme to use the first defendant's
credit account with the plaintiff without authority of the first
defendant.
[102]
Even if I am incorrect, in reaching the conclusion in paragraph 114
above, it could still not be explained by the plaintiff
as to why a
proper hand over of the account was not done from the previous sales
representative to Mr Patji. There does not appear
to have been an
introduction of Mr Patji to the members of the first defendant by his
own colleague and no reasons or information
were provided to this
court.
[103]
As a consequence of these factors. and applying the test on
application for absolution from the instance, this court is not
persuaded that at the close of the plaintiffs case, there is
sufficient evidence upon which a reasonable court can find in favour
of the plaintiff.
[104]
In the result, the following order is made: -
Order
The
application for absolution from the instance is granted with costs.
For
the Plaintiff
Advocate BD Hitchings
Instructed
by
Breytenbach Mostert Skosana Inc (011726 7222)
For
the Respondent
Advocate JL Myburgh
Instructed
by
Thengu Fakude Incorporated (012 323 531
[1]
See Gascoyne
v
Paul and
Hunter1917
TPD 170.
[2]
See
Bulld·A·Brlck
Bk
en
'n
Ander
v Eskom
1996
(1) SA 115
(0)
[3]
See
Claude
Neon
Lights
(SA) Ltd v
Dan/e/
1976 (4) SA 403 (A).
[4]
See
Claude
Neon Lights (SA) Ltd v
Daniel
supra.
[5]
See
Gandy
v Makhanya
1974
(4) SA 853
(N) at page 8568.
[6]
See
Hummerstone
and Another v Leary and Another
(1921)
2 KB 664
at 667.