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[2015] ZAGPPHC 962
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Sonqishe v Willy Black Motors (Pty) Ltd t/a Delmas Nissan (74042/2014) [2015] ZAGPPHC 962 (11 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Case
Number: 74042 / 2014
Date:
11/8/2015
In
the matter between:
TANDO
SONQISHE
APPLICANT
And
WILLY
BLACK MOTORS (PTY) LTD
RESPONDENT
T
I
A DELMAS NISSAN
JUDGMENT
Fabricius
J,
1.
In
this opposed application the Applicant seeks repayment of R 1.1
million plus
interest
plus costs from the Respondent, which amount was paid to the latter
as a partial deposit for a motor vehicle. This deposit
was paid in
four tranches and after a considerable period, when the motor
vehicle had not been delivered to him, he
cancelled the
agreement and demanded return of the money paid. The essence of
Respondent's defence is that no moneys were received
from the
A
pplicant, and I will elaborate on this defence hereunder.
2.
It
was submitted by Applicant's Counsel that the following facts were
undisputed:
2.1
Applicant
provided the Respondent (at its request) with bank guaranteed cheques
totalling the amount claimed. In this context it
was Respondent's
version that the person to whom the cheques were handed, its
salesperson in this transaction. Ms Morereane handed
the cheques back
to Applicant. No confirmatory affidavit was filed by this salesperson
and Applicant's Counsel accordingly submitted
that this version
constituted inadmissible hearsay evidence. I agree;
2.2
Respondent's
employees (the said Ms Morereane, and a Mr Adendorf) accepted
the said bank guaranteed cheques and at all
relevant times acted
within the course and scape of their employment with the Respondent.
I may just add at this stage that Respondent's
Counsel was of the
view that Ms Morereane had committed a fraud on them and upon
Applicant, and this could not have been within
the scope of her
employment. See however:
K
vs Minister
of
Safety
and Security 20
0
5 (
6
)
SA 404 CC.
In any event however, when Ms Morereane
accepted the particular cheques, she clearly acted as salesperson of
Respondent.
2.3
All
the bank guaranteed cheques were paid into the bank account of the
Respondent and, conversely, debited against the Applicant's
bank
account;
2.4
The
contract with the Respondent was cancelled.
3.
Issues
to be decided:
Applicant's
Counsel said that I had to decide the following issues, and could do
so on the papers and there was no necessity to
refer the matter for
the hearing of oral evidence.
3.1
Did
Applicant make payment of the amount claimed to the Respondent?
In this context the
Applicant's evidence that
he handed the
various
cheques to Respondent's employees
(Ms Morereane and Mr
Adendorf)
was undisputed. Respondent's version in this particular context was
that it was paid into
the bank account under the name of a certain Mr
Mahlangu who apparently connived with the said Ms Morereane. In his
answering affidavit
it said Mr Mahlangu deposited the cheques into
the Respondent's bank account under the pretence that he was the
interested person
in acquiring certain access
from Respondent. Respondent's version in this
regard, namely that
Ms Morereane handed the cheques back to the
Applicant and a certain Mr Mahlangu thereafter convinced Applicant to
hand the cheques
over to him and that he would handle the deposit on
Applicant's behalf was not supported by confirmatory
affidavits
and constitutes hearsay evidence. The Applicant's
evidence that he handed the particular
cheques
to Respondent's employees is in my view
undisputed. Even if the allegation that the cheques were handed back
to Applicant
was allowed to stand in the absence of any confirmatory
affidavit, it is so highly improbable that it stands to be rejected
outright.
Why would the Applicant transact with a Mr Mahlangu, who
was not employed by Respondent and hand him cheques made payable to
the
Respondent? I agree that this is so unlikely I cannot find
that it did occur in the absence of confirmation at least.
Is
Respondent liable in contract?:
Applicant's
Counsel said that his claim against
Respondent was founded on
contract. It was
concluded between Applicant and Respondent's salespersons, a number
of cheques were handed
over to
those salespersons and as a result
Respondent was obliged to perform by handing
over within a reasonable
period, the particular vehicle. This was not
done and it is
common cause that
Applicant thereafter cancelled the agreement.
4.
Respondent's
case, as I have said, is simply that no moneys were received from
Applicant, but were received by way of a Mahlangu
deposit. A copy of
four cheques appears in the founding affidavit as annexures. They
indicate that cheques were marked not
negotiable, and were
made payable to Delmas Nissan, and at the bottom of
page 24, which reflects a cheque dated
2 6 June 2014 in the amount of
R 2 20 000 made payable to Delmas Nissan,
a stamp appears
signed by Ms
Morereane on the same day "original seen and copied by me".
The same stamp and signature
by Ms Morereane appears on page 2 5. The
stamp of Delmas Nissan also appears thereon. Certain of some of
the bank statements
of the Applicant also indicate that some of these
amounts were debited to his account.
5.
The
defence of Respondent is on one
hand based on inadmissible hearsay
evidence, and on the other is so implausible that considering
Applicant's version and annexures that he has presented in support
thereof, I am able to reject it outright. See:
Room
Hire
Compa
n
y
(Pty) Ltd
vs
Jeppe
Street
Mansions
Ltd
1
9
49 (
3
)
SA 1
1
5
5
(T) at
1
1
6
.
There are
dozens of decided cases to the same
effect and where a
litigant's defence
is so implausible or unlikely, I am entitled to reject it, and find
in favour of an Applicant without
referring the matter to oral
evidence. The defence is in fact absurd, to put it mildly. Whatever
Ms Morereane did together
with Mr Mahlangu cannot defeat
Applicant's claim in this particular context, but in any event there
is also no admissible evidence
what they in fact did. Further, it
must be accepted that Applicant had
never
heard of
the particular Mahlangu
until
informed by Respondent's Attorney after
the cancellation of the agreement.
Accordingly
the following order is made:
1.
Respondent is to repay Appl icant the amount of R 1.1 million with
interest thereon as follows:
2.
Interest on the sum of R 1.1 million at the rate of 15.5% per annum
to the date of payment
in full, and calculated as follows :-
2.1
On the amount of R 300 000-00 from 9
th
April 2014;
2.2
On the amount of R 30 000-00 from 23
rd
April 2014;
2.3
On the amount of R 420 000-00 from 26
th
June 2014; and
2.4
On the amount of R 350 000-00 from 21 July
2014;
3.
Costs of suit on the scale as between Attorney and client.
As
far as costs are concerned according to my discretion, I have decided
that there is no reason why the Applicant should
be
out of pocket in this particular context.
Respondent's defence is based on unsubstantiated evidence
on
the one hand, and on implausible allegations on
the other. To indicate my strong
disapproval of its defence herein, I am entitled to
make a punitive cost order.
___________________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA DIVISION
Case
number: 74042 /14
Counsel
for the Applicant:
Adv J. H. Lubbe
Instructed
by:
Sarlie & Ismail Inc Attorneys
Counsel
for the Respondent:
Adv P. J. Greyling
Instructed
by:
Odendaal & Kruger Attorneys
Date
of Hearing: 5
August 2015
Date
of Judgment: 11 August 2015 at
10:00