About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 47
|
|
Stewart N.O. and Another v Louw (5039/2013) [2015] ZAFSHC 47 (26 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Case
no. 5039/2013
In
the matter between:
STEWART N.O.,
MICHAEL LAWRENCE
….............................................................
First
Plaintiff
PARKER N.O.,
WAHIDA
...........................................................................................
Second
Plaintiff
[In their capacity
as the duly appointed
joint trustees of
the consolidated insolvent
estate of
GRAEME
MINNE
and
CAROLINA FREDERIKA MINNE
]
and
LOUW, ANDRé
ALBERT
....................................................................................................
Defendant
CORAM:
S J REINDERS, AJ
HEARD
ON:
10, 11 AND 13 FEBRUARY 2015
JUDGMENT
DELIVERED:
26 FEBRUARY 2015
[1]
The plaintiffs (in their capacity as trustees in the consolidated
insolvent estate of Graeme Minne and Carolina Frederika Minne)
claims
R425 984.00 from the defendant together with mora interest and
costs from the defendant pursuant to an agreement entered
into
between the parties on the 7
th
April 2011.
[2]
The defendant in a counterclaim requests a declaratory order that the
said settlement agreement (which is annexed as annexure
“E”
to the particulars of claim) is null and void.
[3]
A plea of prescription was (correctly in my view) abandoned at the
commencement of the trial by defendant.
[4]
Although in the Rule 37 conference it was agreed that the plaintiff
had the duty to begin, I was informed at the commencement
of the
trial that the defendant would begin adducing evidence.
[5]
Mr Louw (the defendant) testified and his evidence boiled down to the
fact that after he has received a summons to appear before
the
Master, he and his wife travelled to Johannesburg where he later
signed the agreement
in casu
on the same day to wit the 7
th
April 2011. When he travelled to Johannesburg he did not know
that the purpose of the summons was to either claim money from
him or
to enter into a settlement and he thought that he was going to
testify in the affairs of Mr Minne (the insolvent).
On arriving
there, he was met by a panel of people and was intimidated in that he
was informed (by the attorney who later testified,
Mr Brand) that
they (he and his wife) were not going to leave before a settlement
was entered into. The plaintiff was already
in possession of a
“
contract
” and furthermore informed him of the
particulars of the house that he and his wife resides in. He
was afraid that he
was going to lose his house and he was requested
to consider how much he can afford to pay. He and his wife had
a discussion
in this regard whereafter the agreement (annexure “E”)
was entered into. He and his wife left Johannesburg that
same
day after signing the agreement.
[6]
The defendant’s wife testified and from her evidence it
transpired that the agreement which was signed was in pro-forma.
It was read to the defendant and the contents explained. The
defendant was given the opportunity to decide how much he can
afford
to pay and he and the witness (his wife) decided on R1 000.00
per month which was accepted and accordingly the agreement
was
finalized on this basis whereafter it was signed
inter
alia
by him and his wife.
[7]
After defendant closed his case, the plaintiff called Thelma Veldtman
the owner of the transcription services who confirmed
her role at the
enquiry to attend to the recording of the enquiry proceedings by the
Master. Mr Brand and Mrs Young also
testified. None of
these two witnesses could remember the defendants and evidence by
both of them were how similar interrogatories
were in general
conducted. Although Mr Brand could not recall the two
defendants, the allegation by the defendant that Mr
Brand precluded
them from leaving the room before signing a settlement agreement was
denied by Brand and he stated that he would
seriously reprimand any
person who would have made such a statement in his presence.
[8]
The main contention of the defendant (as set out in his counterclaim)
is that he signed the settlement agreement under duress.
The
more full allegations are:
“
4.4
Defendant was subpoenaed to appear for questioning on the 7
th
April 2011 at Johannesburg by the Master of the above Honourable
Court.
4.5
On arrival for questioning the defendant encountered a panel of five
people, whose identities and capacities are unknown to
the defendant
at this stage, however defendants specifically avers that the first
plaintiff was present.
4.6
Defendant specifically avers that his wife, Dorothea Maria Elizabeth
Louw accompanied him to the questioning.
4.7
Defendant avers that both himself and his wife were extremely
intimidated by being confronted with the panel and by the
surroundings.
4.8
This intimidation was furthermore aggravated by the aggressive
attitude of the panel before which the defendant appeared.
4.9
The plaintiff demanded to know from the defendant how the due amount
would be paid back, but did not allow the defendant to
ask any
questions and/or to discuss the matter.
4.10
On the defendant’s arrival the settlement agreement was mostly
already drafted. The defendant was not given an
opportunity to
consult or obtain any advice from a legal representative.
4.11
Defendant specifically avers that the first plaintiff demanded that
he must commit to the repayment of the said amount as stated
in the
particulars of claim.
4.12
The defendant further avers that the first plaintiff specifically
stated that he would lend the money whereafter he would register
a
bond against the defendant’s house situated at 30 Scott
Crescent, Fleurdal, Bloemfontein.
4.13
Defendant specifically pleads that the fact that their property
information was already concluded within the settlement agreement,
furthermore arose suspicion and intimidation, in the alternative,
fear for losing their only immovable asset.
4.14
Defendant further avers that his wife is very ill and was ill at the
time of the conclusion of the agreement. At the
time the
defendant signed the said agreement, his only concern was to ensure
that his house was not taken away from them.
4.15
Defendant avers that if he had been informed of his right to properly
consult with a legal representative, and that if he was
not
intimidated by the first plaintiff, he would not have signed the said
settlement agreement, and therefore same was signed under
duress.
”
[9]
The onus
in casu
is on the defendant to prove that he signed the document under
duress.
Savvides v Savvides and
Others
1986
(2) SA 325
TPD at 330 B.
[10]
To establish the defence of “
duress
”
(
metus
)
the defendant accordingly have to prove on a balance of probabilities
the following:
10.1
There must be a threat of imminent evil, for example, to the life,
person, honour or property of a person or a member of his/her
family.
Arend v Astra
Furnishers (Pty) Ltd
1974
(1) SA 298
(C) 305H.
10.2
The threat must be unlawful.
Kruger
v Sekretaris van Binnelandse Inkomste
(supra)
.
10.3
The threat must have induced the threatened party to enter into the
contract or to agree to terms to which he/she would not
otherwise
have agreed.
Arend and Another
v Astra Furnishers (Pty) Ltd
(
supra).
[11]
Unfortunately I cannot find on the evidence adduced, (even on the
defendant’s own version) that he entered into the agreement
under duress. On the evidence adduced by the defendant there
was no threat of imminent evil or alike made to him. He
was
never threatened with losing his property at all. At best, he
and his wife came to the conclusion due to the fact that
the
plaintiffs already knew about their property, that they had to enter
into an agreement to save the property. At no stage
did
plaintiff make any threat in this regard, but even so, if the
plaintiff did tell the defendant that he could or would lose
his
house if he was not in a position to pay, it does not seem to me to
be an unlawful threat. Same would have constituted
only
clarification of the probable the end result to wit that in case
summons judgment was issued and taken against the defendant
and he
could not pay, his immovable property could be attached.
Boe
Bank Beperk v Van Zyl
2002
(5) SA 165
(C) at 180 C - H.
[12]
Mr Louw testified that he was informed that he and his wife must
discuss what amount he can afford. He suggested R1 000.00
after he and his wife had a discussion in this regard. Mrs Louw
(his wife) testified that the proposed agreement was shown
to them.
They had the opportunity of reading it and it was also explained to
them. She testified that reference was
made to their property
but only in as far as reference was made to a second bond that would
be registered over the property.
She thus testified that she
and her husband was afraid because if they lost their house the two
of them would have nowhere to live.
The evidence furthermore
does not reveal that the defendant was unduly influenced to sign a
particular agreement. On his
evidence when he arrived, he was
informed that they should reach
an
agreement (my underlining) – which they did after negotiating.
[13]
I accordingly cannot find that the agreement was entered into due to
metus
.
[14]
Mr Brand testified that
in casu
the method of calculation of repayment as set out in
Fourie
N.O. ander Others v Edeling N.O. and Others
2005 (4) All SA 393
(SCA), were not
followed as he was of the view that same would
in
casu
lead to an unjust result.
This explains why the defendant was requested to sign an
acknowledgement of debt for the whole amount
to wit R883 984.00.
The amount invested by the debtor in the amount of R450 000.00,
was not subtracted. It is
not necessary for me to make a
decision in this regard as same did not form part of the dispute on
the pleadings. I am not
called upon to adjudicate what the
original amount was that the defendant might have owed the plaintiffs
due to the Ponzi-scheme.
This was settled by the parties.
Whether it be a good or bad settlement is none of my concern –
I am only called upon
to decide whether the agreement was entered
into due to undue duress.
[15]
The evidence as a whole establishes that the defendant
in toto
in
any event received R883 984.00 from the insolvent estate.
The defendant invested R450 000.00 and paid an amount
of
R8 000.00
in toto
before he stopped paying. It
might be mentioned that in his evidence Mr Louw averred that faxes
were sent to the plaintiff
informing the plaintiff that he cannot
afford to pay R1 000.00 anymore and that he reduced the payments
to an amount of R500.00
per month before stopping payment. No
such faxes were handed in as evidence nor was any such payments
proved. The Court adjourned
in order to allow the defendant to obtain
proof of these payments, but I was informed at a later stage that the
defendant do not
proceed with these allegations. Brand
testified that the amount being claimed excludes the original
investment of R450 000.00
as well as the payments received.
In par. 5 of the agreement it was agreed that a certificate signed by
one of the trustees
certifying the indebtedness of the debtor shall
be
prima facie
proof of the debtor’s indebtedness to the
trustee and such a certificate has been annexed as annexure “G”
to the
papers. Same has been signed by Mr Stewart and indicates
the outstanding amount as at the 15
th
November 2013 as
R425 984.00 – no evidence unsettled this
prima facie
proof.
[15]
I feel sorry for the defendant in this matter. However,
legally, to my mind, he is indebted to the plaintiff in the claimed
amount.
[16]
The plaintiff urged upon me to make a special cost order
de
bonis propriis
on the scale as between
attorney and own client regarding the costs relating to the witness
Thelma Veldtman. The reason being
that the defendant’s
attorney was not prepared to accept her transcription of the evidence
before the Master and therefore
plaintiff had to call her as a
witness. The transcription could have been proved in my view
prima facie
in
terms of
Section 154
of the
Insolvency Act 24 of 1936
. I am not
prepared to make any special cost order in this regard nor do I
consider the lady to be a necessary witness.
In fact, in as far
as Caroline Young, could also not remember the particular incident,
her testimony did not and could not contribute
herein and she was an
unnecessary witness as well.
[17]
Accordingly I make the following orders:
1.
Defendant to pay plaintiff the amount of R425 984.00.
2.
Defendant to pay interest as follows:
2.1
At the rate of 15.5% per annum for the period 22 November 2013 to the
31
st
July 2014; and
2.2
At the rate of 9% per annum for the period 1
st
August 2014 to date of payment.
3.
Costs of suit.
4.
The counterclaim is dismissed with costs.
__________________
S.
J. REINDERS, AJ
On
behalf of the plaintiff: Mnr. C. H. du Plessis
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Mnr. P. Peyper
Instructed
by:
Horn
& Van Rensburg
BLOEMFONTEIN