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[2016] ZAGPPHC 999
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Ferreira v ZTE South Africa (Pty) Ltd (13697/2012) [2016] ZAGPPHC 999 (6 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
Case
number: 13697/2012
Date:
6/12/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
LUCAS
FERREIRA
PLAINTIFF
Versus
ZTE
SOUTH AFRICA (PTY) LTD
RESPONDENT
REASONS
FOR ORDER GRANTING ABSOLUTION FROM THE INSTANCE
TOLMAY,
J:
[1]
In this matter I granted absolution from the instance at the close of
Plaintiff's case and ordered the Plaintiff to pay the
costs. I stated
that I will provide reasons in due course. These are my reasons for
doing so.
[2]
Plaintiff instituted action against the Defendant for payment of
US$985 000-00. This claim, according to the amended particulars
of
claim, is based on an oral agreement.
[3]
In the particulars of claim the terms of the agreement are set out as
follows:
“
3.1 The relevant
express, alternatively implied, alternatively tacit terms of the
agreement were as follows:
3.1.1. The Plaintiff
would supply the defendant with information relating to the existing
cell phone tower infrastructure in South
Africa to assist the
Defendant with the building of its own infrastructure. This
information included the following:
3.1.1.1 The location of
sites where existing cell phone towers were situated ("the
site")'
3.1.1.2 The site ID;
3.1.1.3 The owner of the
site;
3.1.1.4 The name of the
site.
3.1.2 The Plaintiff would
supply the information to the Defendant in less than fourteen day
3.1.3 The Defendant would
effect payment to the Plaintiff in the amount of US$20 000-00 before
the plaintiff supplies the Defendant
with the information.
3.2 On or about 25 July
2011 the parties, represented as aforesaid amended the terms of the
oral agreement at Johannesburg, as follows:
3.2.1 The Defendant would
effect payment to the Plaintiff in the amount of US$20 000-00 as
deposit;
3.2.2 The Plaintiff would
first supply the Defendant with the information, where after the
Defendant would immediately effect payment
of the balance of the
amount of US$1 000 000-00
[4]
Plaintiff testified and during his evidence he said that the
agreement was concluded towards the end of May 2011 and all that
was
discussed was that he would supply data to the Defendant at an agreed
price of US$1 000 000-00.
[5]
The date of the agreement given during evidence contradicts his
pleadings including his answer to the particulars of claim which
stated that the date was 20 July 2011.
[6]
The evidence revealed more contradictions. In an email dated 23
August 2011 in which Plaintiff resigned and which he sent to
Mr
Haishi and Mr Fuentes, he made it clear that the agreement was never
intended to be between himself and Defendant but between
two
companies that still had to be formed. He acknowledged, in fact, that
Defendant did not have the power to conclude the very
contract that
he pleads. Moreover, his email makes the point that an agreement
still had to be concluded after it had been reduced
to writing. It
emerged from cross-examination that no agreement had ever been
reduced to writing nor had the two companies been
formed with a view
to concluding the agreement as anticipated in the aforesaid email.
[7]
Plaintiff tried to clear this up under cross-examination saying that
the version given in his email was the contract that the
parties had
finally agreed upon after it had undergone an evolution process. The
version in his 23 August 2011 email however bears
absolutely no
resemblance to the pleaded contract.
[8]
The date of the meeting in the Chinese restaurant where the contract
was supposedly concluded is not as pleaded ie. 20 July
2011. In the
23 August 2011 email it was said to have happened during May 2011. In
a letter of demand dated 17 November 2011, sent
by his attorneys, it
was said to have happened a month later on 20 June 2011. In the
particulars of claim the date was a month
after that, ie. 20 July
2011. During evidence Plaintiff reverted to the May/June 2011 version
which is not his pleaded case.
[9]
Plaintiffs pleaded case is that Defendant was personally represented
in the Chinese restaurant by three people, namely Mr Haishi,
Mr
Fuentes and Mr Song. The evidence however was that there were only
three people in the restaurant, namely Mr Haishi, Mr Fuentes,
and
himself. Mr Song was not at the restaurant.
[10]
Plaintiffs pleaded case is that he
sold
and
delivered
information to Defendant for US$1 million which information
included the location of cellphone towers and details of the owners
of those towers. In evidence he conceded that the information would
only be useful to Defendant or Cell C if it contained details
of the
owner of the tower because it was with the
owner
that a
co-location lease agreement needed to be concluded.
[11]
The documents discovered by Plaintiff under Rule 35(3) purporting to
be the data that he provided to Mr Haishi and Mr Fuentes
provides
absolutely no detail at all about who the owners of the cellphone
towers are. If that was indeed the information that
he was obliged to
supply and did supply, it did not meet the pleaded terms of the
contract which Plaintiff himself alleged needed
to be met.
[12]
Plaintiffs pleaded case is that he supplied this information on 29
July 2011. The evidence however is that on 10 June 2011,
Plaintiff
apparently asked Mr Haishi for a down payment because he had already
delivered the required information. It is irreconcilable
that he
could have delivered the information on 29 July 2011 if he was
already asking for down payment pursuant to delivery on
10 June 2011.
[13]
It is apparent that Plaintiff sought payment pursuant to giving the
information to Defendant from the affidavit that he deposed
to in the
rescission application coupled with the transcript of the SMS
exchanges between himself and Mr Haishi.
[14]
When these discrepancies and other discrepancies around Plaintiff's
muddled chronology were probed, his answer was "I
am not good
with dates" and "these are details that are irrelevant to
me".
[15]
Plaintiff's pleaded case is that on 25 July 2011 the agreement
concluded in the Chinese restaurant was amended to the extent
that
Defendant had agreed to pay him a deposit of US$20,000.
[16]
In his email of 23 August 2011, Plaintiff states that Defendant
agreed to give him a down payment of R1,5 million upon the
production
of the information and the balance (in today's terms approximately
R13 million) would be provided if the data proved
to be correct after
being tested on a cluster of sites. In his attorney's letter of
demand dated 17 November 2011, the terms had
changed to a US$150,000
down payment but there was no longer any mention of testing on a
cluster of sites as a prerequisite for
the payment of the balance.
Finally, and after three attempts at particulars of claim, it is
pleaded that the agreed deposit was
US$20,000.
[17]
Apart from the inconsistency in versions, it became apparent from
Plaintiff's own Rule 35(3) discovery that the US$20,000 was
never a
down payment for the information sold. It was a personal loan made by
Mr Haishi to the Plaintiff. In the SMS's exchanged
between Plaintiff
and Mr Haishi, he informs Mr Haishi on 6 August 2011 that he will
repay the money as soon as the ZTE deal is
concluded. He reaffirms
this by saying "I made it very clear... I will pay you back".
He also says in a different SMS
"... I will pay you back as
promised". Interspersed between the SMS's is Mr Haishi
confirming that he gave money to Plaintiff
as a "personal loan"
from his "personal funds" and that he wanted to be repaid.
[18]
Under cross-examination Plaintiff was unable to explain why he agreed
to repay the money if it was a down payment or deposit
because down
payments do not, by definition, need to be repaid. When it was put to
him that only loans get repaid, he could not
provide an answer.
[19]
The test for absolution was set out in the following terms:
"When absolution
from the instance is sought at the close of plaintiff's case, the
test to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which
a
court,
applying its mind reasonably to such evidence, could or might (not
should or ought to)
find for the plaintiff."
[1]
[20]
Harms JA, added to the
Claude Neon
test in
Gordon
Lloyd Page &
Associates vs. Rivera
&
Another
by saying about the test that:
"This implies
that
a
plaintiff
has to make out
a
prima
facie case
-
in the
sense that there is evidence relating to all the elements of the
claim
-
to
survive absolution because without such evidence no court could find
for the plaintiff... As far as inferences from the evidence
are
concerned, the inferences relied upon by the plaintiff must be
a
reasonable
one, not the only reasonable one... Having said this, absolution at
the end of
a
plaintiff's
case, in the ordinary course of events, will nevertheless be granted
sparingly but when the occasion arises
a
court
should order it in the interests of justice".
[2]
[21]
The issue in this case is thus whether Plaintiff has placed
sufficient evidence before the trial court relating to all the
elements of his pleaded case to reasonably justify concluding that a
court could or might find for him.
[22]
I am of the view that the Plaintiff has dismally failed the
Claude
Neon
test as amplified by Harms JA. It is necessary to look at
the case that he pleaded and then evaluate his evidence against the
pleaded
case. The question is whether Plaintiff has done enough to
persuade a court that he might or could get a judgment in his favour.
I am of the view that he did not succeed in doing so. No court could
find that he proved the agreement between him and the Defendant.
The
different versions made it impossible to find for him.
[23]
Questions of credibility are not normally investigated at this stage
of the proceedings, except, as the case law tells us "where
the
witness has palpably broken down, or where it is clear that what they
have stated is not true".
[3]
[24]
I am of the view that in this case it was appropriate to investigate
the question of credibility. The Plaintiff did not impress
as an
honest witness. Not only did he give totally different versions about
the terms of the alleged agreement, but he was unable
to
satisfactorily explain these contradictory versions. The data that he
pleaded he had to provide was not the data he testified
that he did
supply, nor did it contain the information that he pleaded it did.
[25]
For all the above reasons I was of the view that there is no
possibility that a Court could find for the Plaintiff.
__________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: 18 NOVEMBER 2016
DATE
OF JUDGMENT: 6 DECEMBER 2016
ATTORNEY
FOR PLAINTIFF: VAN DER MERWE & ASSOCIATES
ADVOCATE
FOR PLAINTIFF: AND C M RIP
ATTORNEY
FOR DEFENDANT: BOWMAN GILFILLAN INC
ADVOCATE
FOR DEFENDANT: DV K HOPKINS
[1]
Claude
Neon Lights (SA) Ltd vs. Daniel
1976
(4) SA 403
(AD) at 409G-H.
[2]
2000 (4) SA 241
(A) at 243B.
[3]
Leo
vs.
Geldenhuys
191O
TPD 980
and
Gaffoor
vs.
Unie
Versekeringsadviseurs
(Edms)
Bpk
1961 (1) SA 335
(A) at 340D-E;
Ruta
Flour Mills (Pty) Ltd
vs.
Adelson
1958
(4) SA SA 307 (T);
South
Coast
Furnishers
CC
vs.
Secprop
30 Investments (Pty) Ltd
2012
(3) SA 431
(KZN) at 439D-E.