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[2013] ZAGPPHC 142
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Roundtop Trading 10 (Pty) Ltd v Sealetsa (20380/2010) [2013] ZAGPPHC 142 (4 June 2013)
REPORTABLE
IN NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF
SOUTH AFRICA]
CASE NO:
20380/2010
Date heard: 27
- 29/05/2013
Date delivered:
04/06/2013
In the matter
between:
ROUNDTOP TRADING
10 (PTY)
LTD
.........................................................
PLAINTIFF
and
MR M S
SEALETSA
.......................................................................................
DEFENDANT
Coram: Ncongwane
AJ
JUDGMENT
NCONGWANEAJ:
INTRODUCTION:
1.
The plaintiff issued summons against the
defendant for monies lent and advanced to the defendant, during the
period of 30 May 2007
and 31 July 2009, in terms of an oral agreement
between the plaintiff and the defendant.
2.
Defendant has defended the action and
has raised two special pleas to the plaintiffs claim and also pleaded
over on the merits.
At the commencement of the trial I was informed
that it was agreed between the parties that the adjudication on the
defendant’s
special pleas should not be dealt with separately
but the special pleas should be adjudicated upon together with the
merits of
the claim and a determination be made after having taken
into account viva voce evidence and considering the merits in its
entirety.
I accepted this proposition and the trial proceeded on that
understanding.
3.
The first special plea raised by the
defendant is on prescription. A relevant paragraph records the
following:
“
Prescription:
1.1
Having regard to the facts alleged by
the plaintiff in paragraphs 2 and 3 of its particulars of claim the
plaintiff is on the 3Cf
h
of March 2007 had knowledge of the identity of the defendant and from
facts from which the defendant’s alleged indebtedness
arose.
1.2
A proper interpretation of section 10(1)
read with sections 11(d) and 12(13) of the Prescription Act, 68 of
1969 will demonstrate
that the defendant’s alleged indebtedness
would have become extinguished after a period of three years,
calculated from the
1
st
of April 2007, as expired.
1.3
The plaintiff caused summons to be
issued on the 12
th
of April 2010 by which date the period of more than three years
calculated from the 1
st
of April 2007 has already expired.
1.4
In the premise defendant pleads that
defendant’s alleged indebtedness has by the 12
th
of April 2010 become extinguished by the Prescription Act”.
4.
The second special plea is recorded in
the following terms:
“
Non
compliance with the provisions of section 129 and 130 of the National
Credit Act 34 of 2005” ( the Act):
2.1
Defendant pleads that the plaintiff’s
claim, for monies lent and advanced is based on a credit agreement
2.2
Defendant pleads therefore that the
provision of section 129(1)(b) and 130(1)(b) of the Act are
applicable in the alleged agreement
between the plaintiff and the
defendant
2.3
Defendant pleads that plaintiff has
failed to give defendant notice as contemplated in the provisions of
section 129(1)(b) and 130(1)(b)
of the Act.
5.
In so far as the merits are concerned,
defendant’s plea amounted to a denial as is discernible from
his plea, he averred that
the received the monies on the basis of the
employment contract that he had concluded with plaintiff and such
monies constituted
his salaries.
6.
Mr Wildenboer appeared for the plaintiff
and called two witnesses, one Mr Jeffrey Allen Miiler, an erstwhile
Managing Director of
the plaintiff and one Ms Megan Asher, plaintiffs
National Sales Manager.
7.
Mr Serage assisted the defendant. The
defendant gave evidence and two witnesses were called by Mr Serage on
his behalf, namely Ms
Isabelle Billa and Mr Nebert Makhubela.
8.
Mr Miller testified that he was employed
by the plaintiff for a period of twenty five years and more
specifically during the years
30 May 2007 and 31 July 2009. He knows
the defendant as the latter was the employee of plaintiff for a
period of five years. The
plaintiff is a holding company and traded
under the name and style of Academy for Mathematics and Science. He
confirms the employer
/ employee relationship between the plaintiff
and the defendant by virtue of the letter of appointment dated 30
March 2007.
'
1
9.
In terms of that employment contract,
the defendant was employed as a Labour and a legal advisor of the
plaintiff and also undertook
to carry out other functions or
responsibilities on behalf of the plaintiff which had to include
human resources and public relations
functions. According to his
evidence, defendant’s salary was to be determined by a
commission of 0,4% of the company’s
net turnover plus R5 per
registered module of the Killarney sales office turnover.
2
This is contained in paragraph 4 of the letter of appointment. He
testified about an existence of an alleged oral agreement between
plaintiff and defendant in terms whereof plaintiff could draw money
as against future earnings of the defendant. The agreement,
was to
the effect that plaintiff will attend to paying various expenses
incurred by the defendant i.e. defendant’s rental,
transport,
or any other such like expense and would deduct such advances made
against the defendant’s monthly remuneration.
If there was any
deficit which shows at the end of each month, it will be carried over
as an opening balance for the following
month. Every time this has
occurred, the original document will be kept in the filing system of
the head office.
10.
His testimony is further that such
document should be given to the recipient of the advanced payments,
at the end of the month as
soon as they have been finalised. He
identified a written independent contract between the plaintiff and
the defendant, concluded
on the 4
th
of September 2008
3
and testified that this was another new contract between the
defendant and the plaintiff. I presume that he referred to this
contract
as another new contract due to reasoning that already the
plaintiff and the defendant had an employment contract as well as the
alleged oral agreement. Mr Miller further testified that ail the
monies advanced to the defendant would become due and payable
at the
end of that month and if there is a negative balance, such will be
rolled over to the next month if the said balance is
not “wiped
out". A deficit would become due and payable to the plaintiff at
month end as this was a facility provided
to the defendant by the
plaintiff.
11.
The first amount he identified as being
a sum of money of R8 500,00 which was paid, is alleged to have been
paid on behalf of the
defendant and subsequently deducted from his
monthly earnings and it appeared to him that the amounts were paid to
the defendant’s
attorneys. The defendant wanted to ensure that
the rental amount at his rented premises was paid timeously. He
therefore also requested
the plaintiff to pay a sum of R6 000,00
towards his rental. He testified that when the defendant moved to the
Tshwane Branch of
the plaintiff he was in a different category.
According to him -the two agreements, being the employment agreement
as well as the
independent contract agreement overlapped with each
other but the company continued to pay him the 0.4% commission on the
total
turnover of the company plus the R5 per module sold for the
Killarney branch.
12.
He observed that the influence that the
defendant had within Government institutions diminished over a period
of time. The plaintiff
still wanted to use the defendant’s
expertise on labour and legal advice capacity as well as any other
capacity whenever
such use arose. He testified that the defendant was
always indebted to the plaintiff. He will approach him to make
payments for
him for school fees, rental etc. He was not performing
and the debt was mounting whilst in the meantime no income was
coming. The
plaintiff subsequently closed the operations at Tshwane
branch because the defendant was not coping. In terms of the
employment
contract, he testified that he paid a sum of money to the
defendant whether the defendant performed or not. However in terms of
the second agreement Mr Miller testified that the defendant was only
paid a commission on the turnover, and thus on his ability.
Both the
employment contract and the independent contractor’s agreement
were cancelled by notices issued on the 1
st
of July 2009. He confirms that defendant was paid his severance
package but testified that he actually should not have been paid
the
severance package since he was an independent contractor of the
plaintiff. An assertion was put to Mr Miller that the defendant
was
paid the severance package because he was regarded as an employee of
the plaintiff and continued to be an employee until 28
August 2009.
He was a manager and had people working under his supervision. Mr
Miller did not dispute the statement put to him.
He however,
explained that this did not occur in terms of the first agreement. He
testified that in 2007 nobody reported to the
defendant. But after he
became an independent contractor he had people reporting to him.
13.
He knows Ms Isabelle Biita and do not
dispute that Billa worked for the plaintiff from March 2007.
Plaintiff paid the salary of
Isabelle and debited against the account
of the independent contractor (the defendant). He testified that the
plaintiff paid defendant’s
employees on the defendant’s
demand and on his instructions. He was referred to statements in the
trial bundle
4
and his testimony is that the monies shown in statement were all
advances made to the defendant. An amount of R6 545,00 paid around
July 2008 was also described as an amount paid to establish the
Pretoria branch of the plaintiff but at the expense of the defendant.
He testified that all the independent contractors, in the same
situation as the defendant, submitted all their bills for all
expenses,
salaries, etc. to him and he knew, using the funds of the
plaintiff, pay until the defendant tells him to stop. He never
received
any invoice from the defendant and plaintiff did accept a
request for an advance from an employee of an independent contractor.
He confirms payments that were made by the plaintiff to Ms Biila and
also payments made to Mr Makhubela and that those payments
were made
at their request but defendant knew about him. He accepted that it is
not the defendant’s account that was debited
for these payments
by reason of the payments made to the persons mentioned above.
14.
Ms Megan Asher largely confirmed the
evidence of Mr Miller. She confirmed that she was aware that
defendant received the sum of
R6 000,00 a month in advance for
rental. She testified that the independent contractors promoted the
products of the plaintiff
but they were to run their own expenses.
She testified that the defendant managed the Tshwane branch and will
from time to time
send the PRO’S to see various schools and
parents for purposes of the business of the plaintiff.
15.
Under cross-examination she was referred
to the request advance forms that were not signed by the defendant,
or by the person making
the request, or by any person alleged to have
been under the employ of the defendant. She testified that she thinks
that the request
was made verbally over the phone and it would have
come from the manager, being the defendant. She could not tell why
the decision
was made by the plaintiff to make these advance payments
on behalf of the defendant. Under cross-examination, she did not
dispute
a statement put to her that the defendant had not employed Ms
Billa and Mr Makhubela. All that she could mention was that the
defendant
was basically self-employed. She further could not dispute
the defendant’s statement that he did not sign many of the
requests
for advances but she was referred to under cross-
examination and she testified that advance payments were indeed made
to Ms Billa
and Mr Makhubela but it was the defendant who requested
the money. She could not reconcile her evidence in this regard with
the
documents in the trial bundle labeled “advance requests”.
Plaintiff closed its case.
16.
And then the defendant testified that he
worked for the plaintiff and when he signed the contract of
employment for his employment
with the plaintiff during 30 March 2007
to July 2009 he was at the plaintiffs Killarney office. His position
was that of a legal
advisor and he also assisted to resolve problems
at the plaintiffs branches in Cape Town, Pretoria, Middelburg, East
London and
Pietersburg. He earned a fixed salary of R6 000,00. In
addition to a fixed salary, his remuneration consisted of 0.4%
commission
of the plaintiffs net turnover plus R5,00 per registered
module of the Killarney sales office turnover.
17.
He confirms having concluded an
independent contract agreement with the plaintiff on the 4
th
of September 2008. Apart from being a labour and legal advisor, his
duties involved assisting at the plaintiff branches that are
struggling and also establishing new branches, in terms of the new
contract or the independent contract agreement, he testified
that his
remuneration was also 0.4% commission on the turnover generated from
the plaintiffs Pretoria branch. He confirms that
there was also
another arrangement between him and Mr Miller which came as a result
of the delay on the orders and payment of commission
that was due to
him. He had leased a property for which he needed to pay the rental
amount. Mr Miller would pay on his behalf an
amount of R6 000,00
towards the rental which amount was equivalent of the R6 000,00 that
he received as his fixed salary. When
he is paid his salary together
with his commission, Mr Miller would then deduct the amount that was
paid on his behalf to his landlord
as an advanced payment. According
to him, the deductions against his salary for repayments occurred on
a monthly basis and were
paid in full and final settlement.
18.
He never had any people working for him
or contracted to him as employees. When he established the Pretoria
branch he left the main
office of the plaintiff as a team leader and
Billa and Makhubela were part of the team as his subordinates. His
relocation to the
plaintiffs Pretoria branch was on instructions of
Mr Miller. As employees of the plaintiff, they were required to come
to Pretoria
and establish an office and after six months could go
back the head office of the plaintiff in Killarney. The office in
Pretoria
was rented by the plaintiff and their salaries were paid by
the plaintiff including monies for rental, stationary, telephone
bills
etc. In July 2009 he was informed by the plaintiff that his
employment contract with the plaintiff was cancelled. Notwithstanding
the cancellation of his contract in July 2009 he continued to receive
his salary in 2009 for the months of May, June, July and
August 2009.
Over and above the salaries that he received, he also received a
severance package which was paid to him by the plaintiff
as his
employer.
19.
He denies that he had incurred any
personal expenses that had to be paid by the plaintiff at his
request. He explained that the
nature of his work would require him
to visit other offices of the plaintiff. It is within the performance
of that duty that there
was an arrangement that he would request for
advance for petrol, field carding, visiting schools, telephone etc.
just as was the
case with the other employees of the plaintiff. They
were all sent by the company to different places to do the work for
the benefit
of the plaintiff. He indicates that he did not sign many
of the advanced request forms because he did not make such requests
and
the other requests that are signed by the other employees of the
company, had nothing to do with him as he did not know anything
about
them.
20.
He strongly denied that any of the
payments referred to in the trial bundle
5
was made by him. He emphatically stated that he could not have made
such payment as he is not an employer and there is no reason
that he
could use his money to pay for the expenses of another person or
entity. He denies that he owes the plaintiff any monies
and that the
documents to which he was referred are documents that contain names
of other people.
21.
He started his employment with the
plaintiff in 2005 and testified that in March 2007 when there were
other added duties or obligations
in terms of his employment contract
with the plaintiff, involving human resource management and public
relations functions, he
approached Mr Miller indicating that the R6
000,00 is not enough. Mr Miller told him that all the offices that
the defendant will
be attending, will entitle him the amount of 0,4%
commission in respect of those offices. This statement was ‘
however not
put to the plaintiffs first witness. He was happy that he
was getting the R6 000,00 as well as the additional 0.4% commission
that
was paid into his bank account. He did not have documentary
proof of these payments neither is documentary evidence produced by
the plaintiff evidencing the defendant’s salary advice
delivered to the defendant every month. His testimony is that the
independent contract agreement did not at all affect anything about
his employment relationship including employment benefits and
his
salary he was receiving from the plaintiff.
22.
When cross-examined about the request
for advances that were made by other people, he testifies that he
could not have used his
own salary to pay for the expenses incurred
by the plaintiff. In one of the requests that were made, he testified
that the request
indicates that the money must be paid to Mr Nebert
Makhubela. He remembers signing documents in the request for advance
but he
only did that in his capacity as a human resources manager.
The request form
6
he is a request for a school carding and a field trip and that monies
be paid to Mr Nebert Makhubela for the Pretoria expense account
and
were also expenses that were incurred on his motor vehicle. He uses
the motor vehicle for the furtherance of the business of
the
plaintiff and also for amounts which was received when he had to take
a trip to Tzaneen to go there and do some work on behalf
of the
plaintiff. These amounts which were requested totaled a sum of R9
000,00.
Ms
Isabella Billa testified that she was employed by the plaintiff
during the period March 2007 to August 2009. She was a receptionist
and an earned amount of R3 000,00 per month. In 2008 to 2009 she
continued to be employed by the plaintiff but was transferred
to the
plaintiff’s Pretoria branch and there he continued to do the
same work that he was doing at the Killarney Branch.
The plaintiff
continued to pay her salary of R3 000,00 per month. She knows the
defendant and denies that she worked for the
defendant as his
employee. Any monies that were paid to her, were received by her in
furtherance of the business of the plaintiff.
24.
Mr Nebert Makhubela also testified that
she was employed by the Plaintiff and for the period March 2007 to
August 2009 he worked
at the plaintiff’s first office in
Killarney and later was transferred to the Pretoria Branch. She
worked as the PRO of the
plaintiff. He used to go to schools for
presentations. His salaries was paid at the end of the month in the
sum o R3 000,00 as
fixed salary plus commission. When he went to the
field trips the plaintiff paid the required monies to cover expenses
into his
bank account. He knows the defendant. He worked with him at
Killarney and Pretoria branches. The defendant then closed his case.
25.
There are three issues for
determination. The first issue is whether the plaintiff should be non
suited on the basis that its claim
has become extinguished by section
11(d) read with section 12(3) of the Prescription Act, 68 of 1969.
The second issue is whether
the alleged oral agreement between the
parties should be deemed to have been a credit agreement within the
contemplation of section
4, alternatively section 8 of the National
Credit Act, 34 of 2005 (“the NCA”). The third and the
main issue is whether
the plaintiff had discharged the onus on the
balance of probabilities that the oral loan agreement existed on the
terms as alleged
by it, from the evidence tendered by its witnesses
with regards to the exact terms allegedly entered into by the
parties.
26.
As stated above, the first question on
which I must be satisfied is that the debt has not become
extinguished by prescription. The
provisions of the Prescription Act
no 68 of 1969 relied upon by the defendant are of relevance to this
question. For ease of reference
I propose to quote the provisions in
full:
“
11
Periods of prescription of debts:
The period of
prescription of debts shall be the following:
(a)
...
(b)
...
(c)
...
(d)
Save where an Act of Parliament provides
otherwise, three years in respect of any other debt
27.
Section 12(3) provides that:
(3) The debt
shall not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts from
which the debt arises -
provided that a creditor shall be deemed to have such knowledge if he
could have acquired it by exercising
reasonable care”
28.
In placing reliance on these two
sections of the Prescription Act, defendant contends that
prescription started to run against the
plaintiff as soon as the debt
became due and that is on the 1
st
of April 2007. Mr Serage in his heads of argument refers to MM
LOUBSER’S EXTINCTIVE
PRESCRIPTION,
page 54 and submits that a view expressed therein supports the
defendant’s position, which view is to the following
effect:
“
It is
arguable on the other hand that a contract allowing a creditor to
determine of his own accord when performance shall be made
is in
effect silent as to the tire of performance, and performance is
therefore due immediately upon conclusion of the contract,
when the
prescription periods begins to run.
According to
this argument, the stipulation that performance is due on demand
merely reinforces the implicit term of the contract
that performance
is due as from the conclusion of the contract. An important policy
consideration supports this argument, namely
that if prescription
begins to run only from the time of actual demand, the creditor will
be in a position to defer the running
of prescription indefinitely by
merely refraining from making a demand. ”
29.
Plaintiffs evidence is that the alleged
advance payment made to the defendant became due and payable at the
end of each and every
month on which such payments were made.
Plaintiffs summons was issued on 12 April 2010 and service of the
summons upon the defendant
occurred on 21 June 2010. It therefore
follows that any alleged payments or advances made during the months
of April 2007, May
2007 and before the 21
st
of June 2007 cannot be legally enforced as the defendant shall have
made out a case of prescription against the plaintiffs portion
of
that claim. From the statements in the trial bundle, the portion of
that claim totals an amount of R3 499,92, which amount should
be
deducted from the sum of R139 816,13. With regards to the defendant’s
first special plea, and for the reasons stated above,
I make a
finding that the plaintiffs claim has become extinguished by
prescription to the extent of the sum of R3 499.92 and that
the
plaintiffs portion of that claim is not enforceable.
30.
The second question relating to the
defendant’s special plea on non- compliance with the National
Credit Act, 34 of 2005 (the
NCA). The defendant’s second
special plea is premised on the basis that the plaintiffs claim for
monies lent and advance
to the defendant is based on a credit
agreement that is defined in the NCA and that the transactions
alleged by the plaintiff constitutes
a credit agreement as defined in
the Act. This does not only raise factual questions but it raises
mixed questions of fact and
law. Accordingly, several inter related
factors have an important role to play in addressing this question.
31.
In my view, the oral agreement as
alleged by the plaintiff cannot be an agreement contemplated in
section 8 of the NCA as there
was no charge or payment of any fee or
interest that the defendant was to pay to the plaintiff in respect of
the amounts that are
allegedly advanced to the defendant. However,
the facility established by the plaintiff in making the said advances
to the defendant
would be a credit facility between the parties that
are dealing at arm’s length as is contemplated in section 4 of
the NCA.
According to the plaintiffs evidence, both the plaintiff and
the defendant in terms of the relationship as governed by the alleged
oral terms, they were to operate in fact and in law independent of
each other. As it was mentioned during the plaintiffs evidence
that
the plaintiff had been striving to gain maximum possible benefit from
the transactions that were concluded by the defendant
on the
plaintiffs behalf. In view of the plaintiffs approach in that the
parties had to exist separately and independent of each
other and had
to apply maximum effort in deriving benefits from the transaction for
both parties separately and independently,
I am therefore inclined to
conclude that there was an arm’s length transaction that
existed between the parties in terms
of the independent contract
concluded by plaintiff and defendant on the 4
th
of September 2008, to which the provisions of section 4(2)(b)(iv)(aa)
of the NCA would apply.
32.
Trollip JA surmised what an arm’s
length transaction is in the leading case in the subject, Hicklin v
Secretary for Inland
Revenue 1980 (1) SA 481 at 494 para H and 495
para A,
“
When the
“transaction, operation or scheme” is an agreement; as in
the present case, it is important, I think, to determine
first
whether it was conciuded “at arm’s length” that is
a criterion postulated in para II for “dealing
at arm's length”
is a useful and often easily determinable premise from which to start
an enquiry. It connotes that each
party is independent of the other
and, in so dealing, will strive to get the utmost possible advantage
out of the transaction for
himself. Indeed, in the Afrikaans text
the
corresponding phrase is “uiterse voorwaardes beding”.
33.
The dictum in the SCA was repeated and
relied upon by Majiedajp in the unreported judgment of the High Court
Northern Cape Division,
case number 2150/09, a matter between Janet
Gezina Elizabeth Bets and Johanna McElina Swanepoel. It is common
cause that the plaintiff
has not complied with the required procedure
which set out in Sections 129 1(b)(i) and 130 1 (b) by failing to
deliver a notice
on the defendant as peremptory prerequisite for
commencement of legal proceedings under the transaction that falls
within in the
ambit of a NCA.
34.
However, the dispute before me does not
arise on any of the written terms agreed to under the independent
contract and therefore
I do not have to deal with the question
whether non-compliance with section 129 of the NCA is fatal to the
plaintiffs claim, taking
into account that plaintiffs claim is not
based on the independent contract.
35.
Mr Wildenboer advanced an argument that
the special plea on non- compliance with the NCA is not applicable to
the alleged oral transactions.
I agree, and the special plea would
have been raised, correctly in my view if the plaintiffs cause of
action was based on the written
independent contract as that
agreement falls under the category of an arm’s length dealing.
For purpose of this judgment,
I can only take judicial notice of the
independent contract, for the reasons that will become clear
hereunder.
36.
I acknowledge that my finding in respect
of the two questions referred to above does not dispose of the main
issue between the parties.
This brings me to the third questions. It
concerns the question whether the plaintiff had discharged the onus
on the balance of
probabilities that the oral loan agreement on the
terms has emanated from the evidence tendered on behalf of the
plaintiff, was
entered into by the parties. The plaintiff’s
case effectively boils down to the existence of an alleged oral
agreement between
itself and the defendant during the same time and
period when the employment contract concluded on the 30
th
of March 2007 between the two parties was still in force and the
independent contractors agreement concluded on the 4
th
of September 2008 was also still in force.
37.
It appears to me that plaintiff would
have wished to amend the independent contractors agreement by
including further terms and
conditions to be applicable to that
agreement but instead of making that proposal to the defendant,
plaintiff decided to enforce
such an amendment by proceeding with
implementation of a practice, activities and conduct that did not
become quite explicit to
other role players. It is for this reason in
my view, that the particulars of claim have been prepared in such a
way that they
do not contain sufficient particularity regarding the
exact terms of the oral agreement.
38.
The plaintiffs evidence has left plenty
of questions unanswered and leads me to believe the defendant’s
version that he was
employed by the plaintiff and received a fixed
salary or an amount of R6 000,00 per month plus commission as part of
his remuneration.
I deduce this to have been an essential feature of
the evidence tendered by both parties and from the documents placed
before me
which were also referred to in the course of the trial.
39.
It is inconceivable and indeed highly
improbable to even start to imagine that an oral agreement could have
been concluded between
the plaintiff and the defendant and that the
defendant could have been able to operate in terms of whatever terms
that were agreed
to under that oral agreement. I mention this because
the terms of such an oral agreement will fly on the face of clause 9
of the
employment contract which provided for the hours of work that
the defendant is required to perform. It mentions that the defendant
will be required to work certain hours per week for the plaintiff. It
is perhaps apposite to quote the relevant portion of the
paragraph:
“
3.1 You
shall be required to work 45 hours per week for the company. The
daily schedule or hours maybe changed from consultation
from time to
time to suit the company’s operational requirements.
3.2
You may be required to work beyond
normal office hours as scheduled by the company from time to time and
to work Sundays and Public
Holidays. And as such when such
circumstances arise you will be required to give a written report
detailing the working done on
behalf of the company and the hours
utilized.”
40.
From the provision of the hours that the
defendant had to work as an employee of the plaintiff, it is clearly
evident that they
would not have been any hours on any day between
the periods March 2007 to July 2009 that would have been at the
defendant’s
disposal for him to comply with any terms and
conditions allegedly agreed in terms of the alleged oral agreement.
41.
From the evidence of both plaintiff and
the defendant, some of the advance payments were made by the
plaintiff in respect of what
has been referred to as the Pretoria
Branch of the plaintiff. This is in direct contrast to the
plaintiff’s case in that
Pretoria Branch in fact was the
defendant’s (independent contractor) branch. It is common cause
from the evidence from both
parties that the branch was established
by the plaintiff for furtherance of the business of the plaintiff
including its operations
in terms of the duties and obligations that
are referred to in the independent contractors agreement. There is
therefore no cogent
reasoning, on a balance of probabilities, it can
be concluded that the Pretoria Branch is actually a branch opened by
the defendant
as the independent contractor and for the defendant’s
business. The facts as they stand, are diametrically opposed, to that
conclusion.
42.
What clearly fortifies the defendant’s
defence is the fact that not every request advance form is signed by
the defendant
signifying his authority or confirmation of the content
of such request advance form. His evidence is that some of the forms
are
completed by the other employees of the plaintiff. I have no
reason to criticize him for that evidence and this is also the case,
taking into account the fact that most of the advanced request forms
are for the Killarney expense account and not for the Pretoria
expense account. In addition to that, most of the advance request
forms are not signed by the defendant. It emerged from the
plaintiff’s
evidence that Mr Miller will only process a request
for an advance if such a request is supported by a duly completed
request form
which is signed by the defendant. Quite to the contrary,
the request forms relied upon by the plaintiff have not been signed
by
the defendant and as such liability cannot be placed on the
defendant when the monies that were paid were not even deposited into
the defendant’s account but to the other employees of the
plaintiff.
43.
Ms Billa and Mr Makhubela testified that
they were both the employees of the plaintiff and have never been
employed by the defendant.
There is no documentary evidence from the
plaintiff that the advance payments allegedly made were also made for
the salaries of
Ms Billa and Mr Makhubela. The evidence from the two
employees in question, is that they received their salaries directly
from
the plaintiff. It is common cause that they were employed by the
plaintiff, however, the plaintiff alleges that from August 2008
they
became employees of the defendant. What the plaintiff fails to proof
is to place before the court whether by viva voce or
documentary
proof, an indication as to the date of termination of their
employment contracts with the plaintiff in July 2008 or
any other
earlier period. In an absence of such termination of such contract
for the two
employees, !
find that both these employees remained the employees of the
plaintiff and were never employed by the defendant.
44.
As indicated above, in my view, the
alleged oral agreement is inconsistent and incompatible with both the
terms of the employment
contract and the defendant’s employment
activities or occupational requirements that are provided for in
terms of the employment
contract. The alleged oral agreement is
incompatible with the fact that the defendant concluded an employment
contract for which
he had to render services to the plaintiff and
also concluded the independent contract in terms of which there were
certain obligations
that emanated.
45.
Plaintiff does not seek rectification of
the independent contract if same does not correctly reflect the true
intention of the parties
to that contract. The remedy of
rectification was available to the plaintiff to prevent its alleged
oral agreement from operating
with the written employment contract or
the independent contract. See Shoprite Checkers (PTY) LTD v Bumpers
Schwarmas CC and Others
2002 (6) SA 202 CPD at 215 A/B - C/D.
46.
It is without hesitation that I have
come to the aforegoing conclusion. I am not convinced that the
plaintiff has in all respects
in its dealings with the defendant as
well as its decision to open the branch in Pretoria, been completely
bona fide, and more
over acted in accordance with what was described
as (albeit in somewhat different context) in Fly and Another v
First
National Bank 1996 (4) SA 924 C
as
well as established business moral (which) requires creditors to act
bona fide in their dealings with sureties.
I
am of the view that plaintiff appears not to have acted
bona
fide
in its dealings with the defendant. Apart from the payment of R6
000,00 in advance for defendant’s rental, which amount
is
common cause that it was paid by the monthly deductions from the
defendant’s earnings.
48.
I make a finding that the plaintiff has
not proved the existence of the oral loan agreement between the
plaintiff and the defendant
and did not advance the monies to the
plaintiff as claimed.
49.
In
the circumstances I make the order in the following terms:
(a)
That the plaintiffs claim against the
defendant is dismissed;
(b)
That the plaintiff is ordered to pay the
costs of the defendant.
AT NCONGWANE
ACTING JUDGE
NORTH GAUTENG HIGH COURT
1
See
trial bundle, volume 1, pages I to 8.
2
See
trial bundle, letter of appointment, page 3.
3
Independent
contract, volume 1, page 8 -13.
4
See
trial bundle, volume 1, pages 65 and 67 and volume 2, page 149,
5
See trial bundle, volume 2, pages 135, 139, 142 and 155.
6
See
trial bundle, volume 3, page 242.