About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 756
|
|
Van de Venter Mojapelo (Pty) Limited v Automan Auto Trading (Pty) Limited (32648/2014) [2015] ZAGPPHC 756 (4 August 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32648/2014
DATE:
4/9/2015
In the
matter between:
VAN
DE VENTER
MOJAPELO
(PTY)
LIMITED
Applicant
and
AUTOMAN
AUTO
TRADING
(PTY)
LIMITED
Respondent
J
U D G M E N T
TEFFO,
J:
[1] The
applicant seeks judgment against the respondent for payment of an
amount of R541 000,46 which amount it alleges is due and
payable to
it by the respondent for services rendered at the respondent's
special instance and request.
[2] It
further alleges that the respondent admitted liability in respect of
the aforesaid debt.
BACKGROUND
FACTS
[3] In
November 2012 the parties concluded an agreement in terms
whereof the applicant would send data messages in the form
of short
message services ('SMS') on behalf of the respondent to various
members of the public.
[4] The
services were rendered by the applicant in November and December 2012
and further in January 2013 in the total sum of R741
000,46.
[5)
Subsequent to the rendering of the services thereof, the
applicant issued invoices to the respondent and various e-mail
messages were exchanged between the parties. All the e-mail messages
allegedly received by the respondent from the applicant were
directed
to a Mr Andre van Zyl ("Mr Van Zyl") who from 15 January
2013 communicated with the applicant regarding the
matter. In the
email dated 15 January 2013 Mr Van Zyl stated the following:
"
Your email
below
refers.
We
are
truly
apologetic
about
the outstanding payment.
We had
a
systematic
error and accordingly
our
billing went out very late.
We are waiting on money to
come in and as it comes in, we will start paying you within the next
two weeks.
True
apologies ..."
[6] On 19
March 2013 the respondent made an electronic payment of R200 000,00
from its banking account to the applicant in part
payment of the
debt.
[7]
The outstanding sum of R541 000,46 remains unpaid and the
applicant launched an application for the winding up of the
respondent
under case number 31786/13 on 21 May 2013 which
application was dismissed.
[8] An
amount claimed by the applicant was paid into the respondent's
attorneys' trust account two days before the date of the hearing
of
the application. To date the debt remains unpaid.
[9] The
application is opposed.
CONTENTIONS
BY
THE
RESPONDENT
[10] The
applicant has instituted the application against the incorrect
respondent, Data Solutions (Pty) Ltd
("
Data
Solutions")
and not the respondent is the
applicant's debtor.
[11] It
conducts business of purchase and sale of second-hand motor vehicles
and no other business. Data Solutions conducts business
by providing
telemarketing services to its clients and transmitting short message
service (SMS) to its targeted consumers whose
details are stored on
its database.
[12] Mr
Frans Lodewyk Munnik Sasson
("
Mr
Basson"),
represented Data Solutions in
November 2012 when the agreement that the applicant would provide the
SMS service to Data Solutions
("
the SMS
agreement)
was concluded.
[13] The
applicant provided the service to Data Solutions by transmitting the
SMSes to the consumers.
[14] It
disputes that the SMS agreement was entered into between the
applicant and the respondent.
[15] It
also disputes that the applicant rendered any services to it and that
it is indebted to the applicant in the amount
claimed or for any
other amount.
[16] The
invoices rendered to the respondent which remain unsettled, were
incorrectly rendered to it. The invoices were responded
to by Mr Van
Zyl who is the Chief Executive Officer of Data Solutions.
[17] It
has on 19 March 2013 by means of an inter-company loan and for and on
behalf of Data Solutions paid the sum of R200 000,00
in part
settlement of Data Solutions's debt to the applicant.
[18] In
terms of the emails exchanged between the parties, it was not the
respondent but Data Solutions that acknowledged its indebtedness
to
the applicant.
[19] It
disputes that it made several undertakings to pay the outstanding
amount to the applicant.
[20]
Although the amount of the debt was not disputed, it was at
all times disputed that the respondent is liable for the payment of
the debt.
[21]
There is a material dispute of fact as to who the correct debtor is
and such dispute of fact was foreseeable when the applicant
launched
the application. It was raised in the applicant's prior winding up
application against the respondent.
[22]
The issue for determination is whether there are disputes of
fact incapable of resolution on the papers before me or not. Should
I
find that they are there, I further have to determine whether such
disputes of fact are real,
bona
fide
and genuine
disputes of fact. Should the answer be in the affirmative, that
will be the end of the matter but should the answer
be in the
negative I will then deal with the application before me.
[23] In
Plascon-Evans
Paints Ltd
v Van
Riebeeck
Paints
(Pty) Ltd
[1984] ZASCA 51
;
[1984] 2
All SA 366
the general principle that was laid down by Van Wyk J with
whom De Villiers JP and Rosenow J concurred in
Stellenbosch
Farmers'
Wineiy Ltd
v Stellenva/e
Wineiy (Pty) Ltd
1957 (4) SA 234
(C) at p 235E-G was
referred to. It was articulated as follows:
"...
where there is a dispute as to the facts a final interdict
should
only be granted in notice of motion
proceedings
if the facts as stated by the respondents
together
with
the
admitted
facts
in
the
applicant's
affidavits
justify
such an order
...
Where it is clear that facts, though not formally
admitted,
cannot
be
denied,
they
must
be
regarded
as admitted."
[24]
Further to the above the following was said:
"It
seems to me, however, that this formulation of the general rule, and
particularly
the
second
sentence
thereof,
requires
some
clarification and, perhaps,
qualification.
It is correct
that,
where in proceedings
on notice
of
motion
disputes
of fact
have
arisen
on
the
affidavits,
a
final order whether it can be an interdict or some other
form of relief, may be granted
if
those
facts
averred
in
the
applicant's
affidavits
have
been admitted
by
the
respondent, together with
the
facts
alleged
by
the respondent, justify
such an order.
The power
of the
court to give such final
relief
on
the papers
before
it
is,
however
not
confined
to
such
a
situation.
In
certain
instances
the
denial
by
the
respondent
of
a
fact alleged by the applicant may not be such as to raise
a
real, genuine or bona
fide
dispute
of
fact (Room
Hire
Co.
(Pty)
Ltd
v
Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1155
T
at
pp
1163-5, Da Mata Otto NO
1972 (3) SA 858
at
8820-H.
If
in such
a
case
the respondent
has not availed himself of his right to
apply for the deponents
concerned
to be
called for cross-examination
under Rule 6(5)(g) of the
Uniform Rules of Court
and
the
court
is
satisfied
as
to
the
inherent credibility
of
the applicant's
factual
averment,
it may proceed
on
the
basis
of the
correctness
thereof
and
include
this
fact
among
those
upon
which
it determines
whether the applicant is entitled to the final relief which he
seeks (Rikhoto v
East Rand Administration
Board
1983 (4) SA 278
(W)
at p 283E-H). Moreover,
there may
be exceptions
to this general rule, as for
example, where the a/legations
or denials of the
respondent are so far fetched or clearly untenable that the court is
justified
in rejecting them
merely
on
the
papers."
[25] It
is common cause between the parties that an agreement to render the
service of short messages to members of the public was
concluded in
November 2012 and that in terms of that agreement the applicant
rendered the service. It is also common cause that
after rendering
the service, invoices were issued and sent to the respondent. The
amount claimed was not disputed. What is in dispute
is who is the
party that concluded the agreement with the applicant in November
2012 and on whose behalf was the service rendered.
Further to the
above were the invoices sent to the correct party that concluded the
contract with the applicant.
[26] I
have to look at the facts placed before me in order to be able to
determine if the disputes of fact raised by the respondent
are real,
genuine and
bona fide.
While the applicant alleges that
it contracted with the respondent, it rendered the service on behalf
of the respondent and then
sent the invoices to it, the respondent
contends that Mr Sasson represented Data Solutions when he concluded
the contract with
the applicant during November 2012. Mr Sasson
deposed to an answering affidavit on behalf of the respondent
in opposition
of this application. He states in the answering
affidavit that he is a director of the respondent and also that of
Data Solutions.
It is common cause between the parties that both the
respondent and Data Solutions carry and use the name
"Automa
n
"
.
The invoice issued by the applicant was issued to Automan Auto
Trading (Pty) Ltd, the respondent in this matter. It is common cause
between the parties that on 19 March 2013 the amount of R200 000,00
in part payment of the amount due and payable to the applicant,
was
paid by the respondent to the applicant.
[27] All
the emails from the different
representatives
of
the appl
i
cant,
namely Deon Joubert, Tabetha
Henwood,
Karin van de Venter, etc, to
name but
a
few, in
respect of
outstanding
invoices,
were
sent
to
the
different representatives
of
'
automan',
viz,
Gary,
Pierre,
Andre's
emails
'@
automan'
and also to […...].
Mr Sasson
repl
i
ed
to an email from Tabetha Henwood of the applicant and said:
"I
have
send
it
to Andre,
Pierre
and Amit
must
check
the
invoice,
then
we bill our client
and
then
Andre
pays
that's
the process."
On
annexure
FA
13 an
email
from
[…..]
to
Tabetha Henwood, Frans Sasson
and others Pierre states:
"Hi
Tabetha,
I
received
a
message
an
hour
ago
...
As
communicated
before,
Andre our
CEO is
responsible
for
commercials.
He is
copied
on
this email
and his number
is
….....
."
[28]
Taking into account that the respondent and Data Solutions use the
name
"Automan
"
to do business, it appears that the two companies have
people like Mr Sasson as a director of both companies and that the
people
the applicant communicated with via email seem, e.g Mr Van
Zyl, to be carrying double-roles at Data Solutions and at the
respondent,
it was prudent for all those who dealt with the matter
and who received the invoices from the applicant to inform it that
"sorry you
are dealing
with the wrong
person".
[29] The
applicant sent its invoices and emails to the respondent. At no stage
was it ever told that it was sending the invoices
to the wrong
company and/or that it did not render the service to the respondent
but to Data Solutions. Mr Sasson, in particular
also responded
to some of the emails received from the applicant. He never raised
the issues that are now being raised in the papers.
He is the person
who now states in the answering affidavit that he represented Data
Solutions when the contract was entered into.
The contract was orally
concluded. The fact that the applicant's emails were responded to by
representatives of Automan Data Solutions
is neither here or there.
What I also find strange is the fact that the respondent made a part
payment of R200 000,00 from its
own account to the applicant without
even questioning the amount claimed and not telling the applicant
that its debtor is Data
Solutions. The respondent paid the amount and
kept quiet. It was only now in the papers that it contends that it
made an inter
loan payment to the applicant on behalf of Data
Solutions.
[30] It
is not for me to deal with what came before the court at the winding
up application. The fact of the matter is that indeed
the issue as to
who is the debtor of the applicant was raised as a point
in
limine
but it was dismissed.
[31] It
is alleged by the applicant that the amount that is due and payable
to it was paid by the respondent in the attorney's trust
account two
days prior to the winding up application. The respondent just
disputed the allegations.
[32] From
the facts dealt with
supra
as to the conduct of the respondent prior to winding up
application I am satisfied that the disputes of fact raised by the
respondent
are not real, genuine and
bona
fide
disputes of fact. I am persuaded to reject them as not
being credible and probable as it is my considered view that are just
a recent
fabrication. This will therefore enable me to deal with the
applicant's application.
[33] I am
satisfied from the facts that the applicant concluded an oral
agreement with the respondent as alleged and also rendered
the
service on behalf of the respondent at its special instance and
request. I also find that the invoices were correctly sent
to the
respondent and that is the reason why the respondent made a part
payment of its debt towards the applicant.
[34]
Marais AJ said the following in
Cape Town Municipality v
Allie NO
1981 (2) SA CPD at 11H to 12C:
"As
was
recognised
in
Lubbers
and
Canisius
v
Lazarus
(supra) part
payment of
a
debt will ordinarily give rise to
a
tacit acknowledgement
of liability
for
the
balance.
If
the
debtor
expressly
states,
when
making payment,
that it is payment
on account,
or
a
part payment,
the inference
that
he
is
acknowledging
liability
for
the
unpaid
balance
is
irresistible.
And
even
if
the
debtor
does
not
state,
when
making
a
payment which is in fact Jess than the full amount which is
due, that it is
a
payment
on account, or in part payment, the inference that liability for the
unpaid balance
is
being
tacitly
acknowledged
would,
I think
ordinarily b
e
justified.
But
it is conceivable that there may be circumstances in which it would
not
be
correct
to
infer
an
acknowledgement
of
liability
for
a
balance from the
making of
a
payment simply because, objectively regarded, it
is
a
part
payment.
There
may
be
something in
the
prior
dealings between
the parties,
or the
prior
or
contemporaneous
conduct
of
the debtor,
which
would
negate
such
an
inference.
It
has
been
said
that
this
does
not
matter."
[35] The
respondent has never disputed the amount claimed as per the invoices
sent to it by the applicant. Instead in its emails
to the applicant
it sought an extension of time to make payment. There has always been
an intention to pay and that is the reason
why when it was reminded
of the due date of 15 March 2013, it immediately paid without
hesitation.
[36] It
is my considered view on the papers that indeed the respondent
admitted liability by its conduct and also making a part
payment to
the amount that was due and payable to the applicant. The contention
by the respondent that it was Data Solutions which
corresponded and
admitted liability to the applicant is without merit taking into
account my reasoning with regard to how I found
the respondent's
conduct in dealing with the applicant
supra.
[37] It
can also not be said under the circumstances that the amount claimed
is not liquid in that it was not disputed and already
a part payment
of it, has been effected.
[38] I am
satisfied under the circumstances that the applicant has made out a
case for the relief sought and that it is therefore
entitled to
judgment as prayed for.
[39] In
the result I make the following order:
39.1
Judgment is granted in favour of the applicant against the respondent
for payment of the amount of R541 000,46 with costs.
______________________________________________
MJ
TEFFO
JUDGE
OF THE HIG COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
HEARD
ON
2 DECEMBER 2014
FOR
THE APPLICANT
K D RAMOLEFE
INSTRUCTED
BY V V M ATIORNEYS
(REF Jorica Hammanf/TF)
FOR
THE RESPONDENT
G D WICKINS
INSTRUCTED
BY
BROOKS & BRAND INC
(REF MR A Brooks/1743)
C/O EDELSTEIN BOSMAN INC
(REF MR
Scrooby/Rosemary/1 B002094)
HANDED
DOWN ON
4 SEPTEMBER 2015