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[2014] ZAGPPHC 148
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CES Africa (Pty) Ltd v Burger and Another (49803/13) [2014] ZAGPPHC 148 (2 April 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No.
49803/13
DATE:
2/4/2014
In the matter
between:
CES AFRICA
(PTY)
LTD
.
.............................................................................................
Applicant
and
SCHALK
JACOBUS
BURGER
...........................................................................
First
Respondent
DALENE
MAARTENS-BURGER
..................................................................
Second
Respondent
JUDGMENT
BAM J
1. The
dramatis
personae
in this application are the three
directors, as they were, of the applicant company, namely Mr Ernst
Kellerman (managing director),
Mr Dries Willemse and Mr Schalk
Burger. (The latter resigned as director and he and his wife are
cited as respondents.)
2. The
applicant, by way of Notice of Motion, claims payment from the
respondents in the amount of R838 829.89. The application
is opposed.
3. The first
respondent, a quantity surveyor, was appointed as director of the
applicant on 1 March 2012 and resigned on 30 April
2013. The
respondents are directors of a company named Nimbus Beleggings (Pty)
Ltd, (“
Nimbus”)
.
4. It is
alleged by the applicant, represented by the remaining two directors,
that the first respondent fraudulently dissipated
and misappropriated
funds of the applicant, with full knowledge of the second respondent,
by causing certain payments from
clients of the applicant, due
to the applicant, to be deposited into the bank account of Nimbus.
5. The
payments were identified as follows:
(i)
R80 814.60 – Client --Durapi Consulting CC-- Invoice
838-CA -- dd 25 April 2013;
(ii)
R142 723.44 – Client CEMS (Pty) Ltd -- Invoice 837CA -- dd
25 April 2014;
(iii)
R144 382.14 – Client – CEMS (Pty) Ltd –
Invoice 833-CA -- dd 25 March 2013;
(iv)
R362 941.39 -- Client – Durapi Consulting CC –
Invoice 838-CA -- dd 25 March 2013.
6. The
respondents admitted having deposited the amounts reflected above,
save for the amount of R142 723.44, in respect of
the par 5(ii)
- Invoice 837CA, but denied that the funds were miss-appropriated as
alleged. The respondents further admitted that
the funds belonged to
the applicant but averred that the money was deposited with full
knowledge of the other directors and shareholders
of the applicant.
7. In the
applicant’s founding affidavit it was stated that Messrs
Kellerman and Willemse for the first time learnt that the
first
respondent diverted the funds, referred to above, when they were so
advised by the first respondent during a board meeting
held on 12
April 2013. In this regard reference was made to the minutes of the
meeting, kept by the first respondent, attached
to the founding
affidavit as Annexure FA3. (P26).
8. Pertaining
to this issue the following passages in the said minutes seem to be
relevant:
In par 2 it
was noted:
“
Ernst
asked everybody to follow up on the outstanding accounts in order
to clear the Debtors/Creditors backlog.
3.
The abovementioned discussion led to a debate on the situation in
Centurion. Schalk
informed
the
Meeting
that
he had already progressed far along the process to set up the
independent Cost Center for Centurion. This included setting
up a new
Company and opening up a new Bank Account. Dries informed the meeting
that in his opinion, Schalk was deliberately excluding
him from
partaking in the day to day running of the Company.”
And after
further debate.
“
Ernst
then requested that Schalk should cease to pursue the course of
independent Company until the matter has been thoroughly discussed
again. Schalk insisted that such a discussion take place with all the
shareholders being present as soon as possible . . .”
“
5.On
a discussion on the current situation and as to how the salaries not
paid by Ernst prior to his leaving for Cabora Bassa were
paid, Schalk
revealed that he had in pursuance of the agreement that Cost Centres
be established, made interim arrangements for
all outstanding
Centurion funds to be deposited in another account held in one of his
companies. He then proceeded to pay the balance
of the salaries and
some other costs which would be afforded from this account. This was
discussed with his own Auditor prior to
being put in place. He
assured the Meeting that all transactions were duly captured on
record and that once the new account was
operational, all relevant
funds would immediately be transferred to that account.”
9. It is also
stated in the applicant’s founding affidavit, deposed to by Mr
Willemse, that:(p9, last line, to p10, lines
1 and 2):
“
Kellerman
made it abundantly clear to the First Respondent
at the said
meeting that the First Respondent was not entitled to conduct the
affairs of the Applicant as he had unilaterally decided
to do as
aforesaid.”
Accordingly
it was contended by the applicant that the first respondent was
obliged to stop any conduct in respect of payments of
funds due to
the applicant into the account of Nimbus.
10. The first
respondent’s version is that his intention of diverting the
funds was to protect the applicant company’s
funds as a result
of Mr Kellerman’s, conduct in respect of finance management.
According to the first respondent he kept
all the shareholders and
directors informed about his arrangements regarding the funds in
question. The first respondent specifically
denied, as alluded to
above, that the funds were misappropriated and added that he had
already paid R1,4M from Nimbus’ bank
account towards the
applicant’s expenses and disbursements.
11. From the
answering affidavit of the respondents, as confirmed by the
applicant’s replying affidavit, it appears that the
affairs of
several companies were historically intertwined. The three directors
of the applicant were involved with each other
even before they were
appointed directors of the applicant.
12. As far as
this matter is concerned, it is however obvious, as reflected in the
minutes of the meeting of 12 April 2013, that
the relationship
between Mr Kellerman and Mr Willemse, on the one side, and the first
respondent, on the other side were, to say
the least, very strained
and that it actually reached a stage where animosity between the
three directors almost reached a breaking
point, apparently as a
result of various issues, including questions about shares and other
financial aspects concerning the applicant’s
business, as well
as the managing of the applicant’s business. In this
regard the following was noted in the said minutes:
(After a discussion between
the three directors in regards to outstanding amounts “
loosely
calculated”
as R1,3M, and Mr Kellerman expressing his
concerns that the applicant was overdrawn at Nedbank, and, that the
applicant owed him
R2,M, which amount was “
pumped into the
system to start up
” the applicant company.)
“
Dries
Willemse supported this view and Schalk did not. Ernst mentioned that
Schalk could not walk away now as he was morally bound
to honour the
situation and assist Ernst in the serious matter of the SARS account.
Schalk indicated that he had no intention to
‘walk away’
but had to re-assess his situation on the facts at hand, ie the
animosity from Dries and a continuing downward
spiral of cash flow
from Ernst and the CESA situation.”
(And after
further discussion about setting up a new company, the following:)
“
Dries
informed the meeting that, in his opinion, Schalk was deliberately
excluding him from partaking in the day-to-day running
of the
company.”
(Then, after
a further apparently heated debate, including reference by Mr Burger
to a certain inter-company situation, the following:)
“
Ernst
immediately threatened legal action if Schalk persisted along this
course as, in his opinion this was ‘illegal’
and
that should it continue, he would next meet Schalk in court.”
(Further
debate followed and Mr Kellerman indicated that he would withdraw his
threat of litigation but Mr Burger insisted that
it should stay on
record.)
13. In the
applicant’s replying affidavit certain words and comment used
in referring to the first respondent, were
prima facie
defamatory.
I will later return to the issue whether the relationship between the
directors, alluded to, is relevant to the question
whether the
applicant has proved its case.
14. It is
clear that a factual dispute exists between the parties pertaining to
two questions:
(i)
Whether Messrs Kellerman and Willemse was aware, before the meeting
of 12 April, of Mr Burgers’ actions to divert the
funds due to
the applicant to the account of Nimbus, and;
(ii)
Whether Mr Burger fraudulently miss-appropriated the funds in
question.
15. The
following aspects come into play.
16. The board
meeting of 12 April was preceded by a meeting on 7 March. The three
directors and two other people attended. One of
the items on the
agenda, item 3.3 (SB 19, p131), reads as follows:
“
Bank
accounts to be split and reporting procedure to Board to be discussed
and formalized at the Board meeting.”
17. It is on
the contents of the said item 3.3 that the first respondent bases his
contention that the other directors knew quite
well about the payment
of the funds into the account of Nimbus he informed them about during
the meeting of 12 April. In this regard
the first respondent stated
that the other directors knew about the existence of Nimbus and that
he did inform them that the funds
paid into the account of Nimbus
would be transferred into the new ABSA account once the latter
account had been moved and renamed.
According to the first respondent
this contention is also confirmed by the contents of an Email from Mr
Kellerman, (Annexure SB
20, p133 of the answering affidavit, dated 16
April 2013) directed to the first respondent, where the following
appears:
“
Stuur
asb ook vir my ‘n uiteensetting van watter bedrae verskuldig is
aan CES Africa in die rekening van Nimbus betaal is,
asook watter
bedrae daaruit betaal is.”
18. The first
respondent also referred to an Email from Mr Kellerman dated 24 April
2013, stating that all monies due to the applicant
should be paid to
the applicant. To this Email the first respondent responded that the
arrangement was to keep the
status quo
, pertaining to the
depositing of the funds, intact. (Annexures SB 21, p134, and SB 22,
p136).
19.
Subsequent to the meeting of 12 April 2013, the first respondent
E-mailed the invoices of the monies to Mr Kellerman. On 16
April Mr
Kellerman requested the first respondent (Annexure SB 20, p133) to
forward to him a detailed set out of which amounts
indebted to the
applicant were deposited in the bank account of Nimbus.
20. As
alluded to above, it is conceded by the respondents that the first
respondent caused the aforementioned funds to be deposited
into the
account of Nimbus, as follows:
(i)
(Item par 5(iii) above)R144 382.14 – Invoice 834-CA –
date of deposit – 5/07/2013;(Annexure SB 16,p124,
refers to a
similar amount deposited on 27/03/2013)
(ii)
(Item par 5(iv) above) R362 941.39 -- Invoice 833 CA -- date of
deposit -- 27/03/2013.
21. The bank
statement reflecting the deposit of item par 5(i) above, R80 814.60,
was not attached to the answering affidavit.
It was however admitted
that the amount was in fact deposited into the Nimbus account. It
appears from Annexure SB16 to the answering
affidavit, p124, that
that amount was deposited on 25/04/2013.
22. It need
to be stated that the said bank statements reflect that on the day
the amount referred to in par 20(i) was deposited,
the bank account
showed a positive balance, however, pertaining to the amount referred
to in par 20(ii), the very next day that
amount was deposited, the
positive balance in the bank account continued to decrease far below
the amount deposited.
23. It was
further contended, and explained by the respondents, that several
amounts were paid out from the Nimbus account to the
applicant, or on
behalf of the applicant, totaling more than R1 400 000 00. In
this regard the respondents, in my view, substantiated
their
contention with certain documentary proof.
24.
Pertaining to the factual issues raised by the parties, especially in
regards to the backdrop concerning the relations between
the three
directors and the other companies preceding the establishment of the
applicant, several disputes of fact arose. In this
regard the
applicant is clearly at risk that it should have foreseen the problem
of instituting its claim by way of motion proceedings.
I deem it
unnecessary to refer to the law, it is trite.
25. In
considering the allegations by the parties in the respective
affidavits, the factual disputes are prominent. It is in my
view not
possible to o reconcile the differences and to decide this
application on the papers. The respondent’s version,
despite
probable justifiable criticism, cannot be rejected as false.
26. I again
refer to the animosity between the parties to which I have referred
to above. In the replying affidavit, p 195 pars
33.11 and 33.2, the
applicant refers to documents fraudulently created by the first
respondent, and that the first respondent is
“
a
forger
and visibly a mala fide litigant”.
In my view the objective
facts do not substantiate that remark. The said words however
underscore the antagonism shown by Messrs
Kellerman and Willemse
towards the first respondent. In my view this attitude of the two
directors contaminated any objective representation
of the facts by
the applicant.
27. I do not
deem it expedient to in detail discuss and analyse the factual
disputes between the parties. In my view it suffices
to say that the
first respondent’s version that he did not miss-appropriated
the applicant’s funds, as alleged by the
applicant, must be
accepted.
28.
Accordingly the following order is made:
The
application is dismissed with costs.
A J BAM
JUDGE OF THE
HIGH COURT
28 March 2014