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[2015] ZAGPPHC 133
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Global House of Accounting (Pty) Ltd t/a House of Accountants v Steyl (A644/2014) [2015] ZAGPPHC 133 (4 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE NO: A644/2014
DATE: 4 MARCH 2015
IN
THE MATTER BETWEEN
:
GLOBAL HOUSE OF
ACCOUNTING
(PTY) LTD t/a
HOUSE OF
ACCOUNTANTS
...................................................................................................
APPELLANT
AND
FRANCOIS LAAS
STEYL
................................................................................
RESPONDENT
JUDGMENT
KOLLAPEN J:
INTRODUCTION
l. This is judgment
in an appeal against the whole of the order and judgment of the
learned Magistrate Ms A C Nyambo sitting in
the Regional Court of
Pretoria when an order was made that the appellant pay to the
respondent the sum of R273 493-17 together
with interest and costs.
BACKGROUND
2.
It is common cause that the respondent was engaged by the appellant
to perform certain professional services for and on its behalf
- the
services were in the nature of accounting and other professional
services for local authorities. It appears that when that
arrangement
came to an end and in order to bring finality to the relationship
between the parties with regard to payment and other
issues, the
appellant in an e-mail dated the 16
th
of June 2009, acknowledged it’s indebtedness to the respondent
in the amount of R700 000-00. Of that amount the e-mail recorded
that
R150 000-00 had already been paid and there was an undertaking to pay
the balance of R550 000-00 in instalments during the
period June 2009
to September 2009.
3. On or about the
22 June 2009, the respondent caused a close corporation to be
incorporated under the name of CDF Sky Consultants
CC (‘CDF’)
in which he was the only member and thereafter requested the
appellant to pay the amounts due to him, to
the close corporation.
The respondent also issued an invoice in the name of CDF to the
appellant reflecting the outstanding amount
as set out in the email
of the 16 June 2009.
4.
The appellant made some payments to the close corporation but there
remained a balance of R273 493-17 which then triggered the
issue of
summons by the respondent in the Court
a
quo.
One
of the issues raised in the proceedings in the Court
a
quo
was
whether the undertaking to pay was an undertaking in favour of the
respondent or the close corporation to be formed, and the
related
issue of whether in submitting an invoice in the name of CDF and
requesting payment to be made to it, the respondent had
relinquished
his entitlement to seek payment in his own name, having effectively
ceded his right to payment to CDF.
5. After considering
the evidence of Mr Pretorius on behalf of the appellant and that of
the respondent, who testified in his own
case, the learned Magistrate
entered judgment in favour of the respondent.
GROUNDS OF
APPEAL
6. The grounds of
appeal the appellant originally relied on are that:
i.
The
learned Magistrate erred in finding that the undertaking to pay as
set out in the e-mail of the 16
th
of June 2009 constituted an agreement between the appellant and
respondent investing the respondent with the necessary
locus
standi
to
sue;
ii.
That
the learned Magistrate erred in concluding that it was common cause
that the respondent had performed the work for the appellant;
ííí.
That the learned Magistrate erred in framing the question for
determination as being whether there was
a cession from the
respondent to CDF, as no such case was made out on the papers; and
iv.
That
the learned Magistrate erred in allowing the admission of evidence
that the close corporation was registered after the date
of the
undertaking of the 16
th
of June 2009.
7. During the
hearing of the appeal the appellant abandoned the grounds of appeal
set out in ii), iii) and iv) above but sought
to raise two new
grounds of appeal. These were, namely, that the agreement reflected
in the e-mail of the 16
th
of June 2009 constituted a
pre-incorporation contract on behalf of CDF which was ratified upon
the registration of CDF, the issuing
of an invoice in the name of CDF
and the receipt of some payments by CDF, and in addition the
appellant sought to argue that the
conduct of the parties after the
16
th
of June 2009 constituted an amendment of the
agreement of the 16
th
of June 2009.
ANALYSIS
THE
UNDERTAKING DID NOT CONSTITUTE AN AGREEMENT
TO
PAY TH RESPONDENT:
8. The case for the
respondent is premised on the written undertaking to pay. It is not
in dispute that when the undertaking was
given, the close corporation
was not yet registered and on account of that, could not have
conducted any business. If one has regard
to the e-mail of the 16
th
of June 2009 despatched by the appellant to the respondent, then it
is clear that it purports to provide a clear and unambiguous
basis
for the settlement of any claims between the parties and that the
obligation to pay is an unconditional one and made by the
appellant
to the respondent in person. There can simply be no suggestion that
it was given to the respondent in any capacity other
than in his
personal capacity. The work that was undertaken and that constituted
the debt was undertaken by the respondent and
it was the respondent
that was entitled to payment - the e-mail of the 16
th
of
June 2009 confirms this in clear terms.
9. While it is trite
that ordinarily a plaintiff has to prove all the terms of an
agreement it relies on, the position is different
when the plaintiff
sues on a written document and the defendant pleads that the written
document differs from the actual agreement
arrived at.
10.
The strong probative value of the document has been seen as a factor
affecting the incidence of the onus, and the true position
as to the
question of onus is that the respondent (plaintiff) bears the overall
burden of showing that it is possessed of rights
which entitled it to
claim the attachment order. That overall onus remained on it
throughout. However since it is armed with a
written agreement which
appears, on the face of it, to confer such rights on it, the
appellant (the defendant) bears the burden
of rebutting the
prima
facie
case.
11.
On the evidence there was no rebuttal of the respondent’s
prima
facie
case
and reliance on the e-mail of the 16 of June 2009 and in this regard
the evidence of Mr Pretorius accepting that CDF could
not have
conducted business at least at any time before the 22
nd
of June 2009 when it was incorporated, must be decisive of the
argument that the undertaking was not given to, and for, the benefit
of the respondent.
12.
In addition there is no evidence relative to the conclusion of the
agreement which is reflected in the e-mail of the 16
th
of June 2009 that the respondent was acting in any capacity other
than in his personal capacity. The suggestion that the agreement
constituted a pre-incorporation contract stands unsupported by the
evidence.
THE
ISSUE OF THE ALLEGED CESSION
13. While it is so
that the question of the cession of the claim was not raised on the
pleadings, it was raised during the evidence
and in particular during
the cross-examination of the respondent when it was suggested to him
that he had ceded his claim to CDF.
A similar stance was taken by Mr
Pretorius during his testimony.
14.
Although ‘the object of pleadings is to define the issues; and
parties will be kept strictly to their pleas where any
departure
would cause prejudice or would prevent a full enquiry...within those
limits the Court has a wide discretion’ because
‘where a
party has had every facility to place all the facts before the trial
Court and the investigation into all the circumstance
has been as
thorough and as patient as in this instance, there is no
justification for interference by an appellate tribunal, merely
because the pleading of the opponent has not been as explicit as it
might have been.’ (see
ROBINSON
v RANDFONTEIN ESTATES G.M., CO. LTD.
1925
AD 173
at page 198)
15.
As the appellant had raised the possibility of cession at the trial,
it was incumbent upon the Magistrate to consider that aspect
in her
judgment.
16
.
When one has regard to the case in support of the alleged cession
which the appellant was under an evidential burden to prove,
then it
could hardly be said that this was proved on a preponderance of
probabilities. The evidence of the respondent was simply
that the
formation of CDF represented a vehicle through which he would conduct
his business and that the issuing of invoices in
its name for monies
that were due and payable to him was purely an administrative
arrangement. In this regard I am not even sure
whether the respondent
fully appreciated the difference between a close corporation in which
he was the only member, as a separate
and distinct legal entity,
which in my view further militates against the suggestion that he
ceded rights from himself to the close
corporation.
17. In my view the
fact that invoices were issued in the name of CDF did not alter the
nature of the original obligation that was
created. A party is
entitled to use an agent or another entity to receive payment.
18.
In
AGRICULTURAL RESEARCH COUNCIL
v
BREDELL AND OTHERS
2005
(1) All SA 515
,
the Court expressed itself as follows (at 523 f):
‘
This
means that the condictio indebiti is enforceable against the
recipiens of the undue payment, but nobody else. The recipiens
is not
necessarily the person into whose hands the money was actually put
when it was paid. He is the one who must be considered,
in all the
circumstances of the case, truly to have received the payment.
Whenever a payment is made to an agent with authority
to accept it,
for instance, the recipiens is the principal, not the agent. A
conduit through whom payment passes is likewise not
its recipiens. ’
19.
The invoice by CDF can carry no greater consequence than an
intimation by the party entitled to payment, namely the respondent,
making an election that the payment due to him be paid to CDF. This
cannot under any circumstances and certainly in the absence
of a
cession, endow CDF with any rights to claim such payment in its own
name. The evidence before the Court
a
quo
did
not establish the existence of a cession from the respondent to CDF
nor was it established that CDF had somehow become entitled
to
payment by virtue of the undertaking of the 16
th
of June 2009.
20.
The invoice issued at the instance of CDF, and the request by the
respondent that payment be made to CDF, cannot alter the character
of
the debt that had come into existence. Absent a cession, it can never
be so that an invoice can on its own constitute the basis
for
indebtedness.
In
casu
the
basis for the indebtedness of the appellant was the work done by the
respondent and the written undertaking by the appellant
to pay an
agreed amount for that work.
21.
Finally the argument that there was an oral agreement that had the
effect of amending the agreement of the 16
th
of June 2009 needs consideration. Apart from the fact that the
existence of such an oral agreement was never pleaded, it was only
raised quite tangentially in evidence when it was put to Mr Pretorius
in re-examination that the request by the respondent that
payments be
made to CDF constituted an oral agreement amending the written
agreement.
22.
Apart from the very vague and generic nature of the alleged oral
agreement, it is so that it was never the case the respondent
was
required to meet and it was raised for the first time in
re-examination. Once again I am compelled to conclude that on the
available evidence it could hardly be said that the appellant had
discharged the evidentiary burden of proving the existence of
such an
oral agreement. If one has regard to the evidence of the respondent,
then clearly there was simply no meeting of the minds
with regard to
the case for the existence of such an oral agreement.
23. In my view and
for the reasons given, the appeal is destined to fail.
ORDER
24.
I therefore propose the following order:
24.1 That the appeal
be dismissed with costs.
N KOLLAPEN
JUDGE OF THE HIGH
COURT
I AGREE,
T MUDAU
ACTING
JUDGE OF THE HIGH CO
URT
IT
IS SO ORDERED.
A644/2014
HEARD ON: 19
FEBRUARY 2015
FOR THE APPELANT:
ADV. J ROUX (assisted by ADV. W R DU PREEZ)
INSTRUCTED BY:
MACROBERT INC (ref: CG/ew/1023804)
FOR THE RESPONDENT:
ADV. D B DU PREEZ SC
INSTRUCTED BY: DU
PLESSIS & EKSTEENING. (ref: Heunis/anton)