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
>>
2013
>>
[2013] ZAGPPHC 464
|
|
Frans Swart Produksies CC t/a Lefra Produksies v De Langa (A671/12) [2013] ZAGPPHC 464 (31 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO. A671/12
DATE:
31 OCTOBER 2013
In
the matter between:
FRANS
SWART PRODUKSIES CC t/a LEFRA PRODUKSIES
And
CATHARINA
ELIZABETH DE LANGE
...............................
RESPONDENT
JUDGEMENT
MOLOPA-SETHOSA
J
This
is an appeal against the judgement and order granted by the learned
magistrate SV Malinda in the Magistrate’s Court for
the
District of Witbank held at Emalahleni, in which the claim of Frans
Swart Produksie CC t/a Lefra Produksies (Mthe Appellant"),
against Catharina Elizabeth De Lange ("the Respondent”)
was dismissed with costs.
The
Appellant was the Plaintiff and the Respondent was the Defendant in
the court a quo. The parties will be referred to as in the
Appeal.
Background:
In
or around June 2010 the Appellant issued summons against the
Respondent for an order in the following terms:
“
a).
Betaling van die bedrag van R39 900;
b).Rente
daarop teen 15,5% per jaar vanaf 15 Augustus 2008 tot datum van
betaling;
c).Gedingskoste;
d).Alternatiewe
regshulp, ”
The
Appellant’s claim is based on a written contract concluded
between the Appellant and the Respondent, they being Plaintiff
and
Defendant respectively in the Court a quo, in terms whereof the
Appellant sold two productions of the show “Groet die
Grotvrou”
(“The Show”) to the Respondent, for the sum of R79 800.
00 (VAT included), for 22 and 23 August 2008.
In
terms of the agreement entered into between the parties, the
Respondent would pay the initial amount of R39 900.00 on signature
of
the agreement, and the balance of R39 900.00 a week before the show.
The
Respondent only made payment of the initial sum of R39 900.00. The
amount of R39 000. 00 claimed by the Appellant in the Summons
is the
balance outstanding in terms of the said written contract concluded
between the parties.
On
the pleadings the locus standi of the parties were common cause and
the Respondent admitted the terms of the agreement concluded,
save
that it was subsequently orally agreed between the parties that the
remaining balance of R39 900.00 would be paid after the
final show.
In addition the Respondent also admitted that the Appellant complied
with all its obligations in terms of the agreement.
The
Respondent’s defence to the Appellant’s claim was that
the Appellant waived payment of 50% [fifty percent] of the
agreed
amount; i.e. the balance sum of R39 900.00.
In
terms of the written agreement payment of the balance of R39 900.00
was payable a week prior to the show. As already set out
above, the
Respondent pleaded that it was agreed that the balance amount would
only be payable subsequent to the show. This oral
amendment of the
date of payment of the balance of R39 900.00 does not seem to be of
any consequence in this matter. It is not
in dispute that the said
balance of R39 900.00 was never paid to the Appellant by the
Respondent, even after the show.
The
gist of the Respondent’s defence is that one Chari Senekal
“(Senekal”), an employee of the Appellant, acting
on
behalf of the Appellant, waived payment of the sum of R39 900.00.
The
Appellant in its replication denied that a waiver took place and
further denied that Senekal had the necessary authority to
have
waived payment of the balance amount.
After
the Appellant’s replication denying such waiver as alleged by
the Respondent, and/or Senekal’s authority to waive
payment of
the R39 900.00 in issue herein, the Respondent amended its Plea and
pleaded that alternatively the Appellant is estopped
from denying
that Senekal was authorized to act on behalf of the Appellant in
waiving the right to the balance of R39 900.00.
It
is trite that the party raising a waiver bears the onus to prove on a
balance of probabilities that there was a waiver of rights
by the
other party. Refer Kannemeyer v Gloriosa
1953 (1) SA 580
(W) at
585C-D; Ellis and Others v Laubscher
1956 (4) SA 692
(A) at 702E-F;
and Road Accident Fund v Mothupi
2000 (4) SA 38
(SCA) at 50 par. 19.
The
onus is thus on the Respondent to prove the waiver as well as the
authority of the person who waives any right, Senekal in this
case.
This much was not in dispute, and in fact the Respondent was the
first witness to begin leading evidence at trial at the
court a quo.
In
approaching the question of waiver, one has to have regard to the
fact that it is a matter of intention. Whether or not Senekal
had the
intention to waive payment of fifty percent of the agreed amount,
being the R39 000.00 in issue herein, has to be determined
from
objective facts. Refer Mothupi supra at p49 par. 15 & 16
The
Respondent's evidence was that Senekal, who attended the show, was
there in order to do a count of how many persons were present.
That
he/Senekal had to ensure that no more than 700 tickets were sold. The
importance of this is because the amount charged by
the Appellant for
the show, depends on the amount of tickets sold. The evidence further
disclosed that Senekal was a production
manager and that he had
nothing to do with the financial aspects relating to the show.
The
Respondent’s evidence was that out of the blue, Senekal said to
her that evening of 23 August 2008 that “hy sien
die vertoning
is nie genoeg steun nie en dat hulle ons een vertoning gratis sal
gee”.
The
Respondent’s evidence was that it was this statement that
constituted the waiver on which she relies. Counsel for the
Appellant
submitted that the above statement in itself does not constitute a
waiver. That “hulle ” is not identified,
that reference
is made of something in the future [“hulle sal..”], and
that nothing is said about the obligation to
pay in terms of the
written agreement and the terms of the said contract/ agreement.
The
Respondent also called her daughter, Natalien Marcel de Lange (“the
daughter”), who was present at the show on the
night of 23
August 2008 with the Respondent and Senekal when Senekal allegedly
waived payment of the balance of R39 900.00, to
give evidence about
this aspect.
From
the facts it appears that this show was actually for a project
arranged by the Respondent’s daughter as a fundraising
effort
on her part.
She
was raising as much money as possible in a competition that was run
for CANSA.
The
daughter’s evidence was that Senekal would have said to her and
the Respondent “ons kan die laaste ene verniet kry
of een van
die vertonings verniet kry om ons te help met ons fondsinsameling”.
This differs with what the Respondent said,
set out above.
According
to the daughter the intention was that the Appellant was making a
donation towards the good cause for which the shows
were intended
for. This was denied by the Swart and Senekal [Appellant’s
witnesses]. Swart stated that the Appellant has
a policy relating to
charity and charitable organizations that it supports.
In
her cross-examination the daughter changed her evidence by saying
that “Ek het verstaan dat hy gese het dit is reg hy sal
dit vir
ons doen ”, implying that Senekal was requested to make a
donation and Senekal agreed.
Against
the background of this evidence was the evidence of Frans Swart
(“Swart”), who gave evidence that financial
meetings are
held and prices are discussed. That no one in the employ of the
Appellant, except himselffSwart, has any authority
to make an
arrangement relating to payment and/or to fix prices.
From
the evidence on record as testified by Swart, he/ Swart is the sole
member of the Appellant; Senekal, on the other hand was
a production
manager. This evidence was not disputed by the Respondent.
Swart
testified that Senekal did not have authority to waive any payment,
and this evidence was similarly not placed in issue by
the
Respondent. The Respondent’s answer, to the question of
authority and right to waive was simply that she accepted that
Senekal had authority because they knew him to be a “manager ”
at Appellant’s. The Respondent on her own version
is a business
woman and knew that she was dealing with a close corporation. Surely
it cannot be said that the fact that a person
is a manager does not
give the person the right, to waive compliance with a contract which
he did not sign.
The
agreement was signed by the only member namely Swart. In the learned
magistrate’s reasons, she finds support for the waiver
on the
basis that “The Court finds no fault in Defendant believing
that the said Chari had the necessary authority as much
as
correspondence about payment was also directed to Chari”,
This
factual finding by the Magistrate is clearly incorrect and is not
supported by the documentation and exhibits.
Looking
at the correspondence subsequent to the show, nothing in the
correspondence indicates that the Respondent at any stage raised
the
question of waiver. This is particularly noticeable in the letters
written on behalf of the Respondent by her attorney, after
demand for
payment of the balance aforesaid was made. One would have expected
that the fact of the waiver would immediately have
been raised by the
defendant. I deal with this aspect fully below.
Senekal
denied the evidence of the Respondent that he waived payment of the
balance of R39 900.00. He testified that he had no authority
to do
that, and that he would therefore never have agreed to any waiver
and/or discount without first discussing such with Swart;
further
that this is what he would have told the Respondent had there been
any talk of a waiver and/or discount of the balance
owed by the
Respondent to the Appellant. It was not his duty to attend the venue
to collect money or to deal with any contractual
aspect, he was
merely a production manager and dealt with issues pertaining to
artists and performance of shows.
Senekal
was adamant that he would not prejudice his employment by negotiating
fees and/or discounts without first running these
past Swart, who was
the chief of Appellant. That he knew exactly what the financial
arrangements were and what procedures were
to be followed with the
Appellant. He testified that in fact if the waiver was an aspect that
indeed arose, he would have expected
the Respondent to have referred
to it in an e-mail or a fax. This she did not do; there is no shred
of paper/correspondence from
the Respondent to the Appellant and/or
Senekal mentioning this alleged waiver. The Respondent was said to be
an astute business
woman by her own legal representative; she herself
referred to herself as a business woman. One would have expected her
to have
immediately communicated this waiver of the R39 900.00 by way
of e-mail or fax to Swart on behalf of Appellant or Senekal who she
alleges waived payment of the said amount. Her conduct makes it
highly improbable that the Appellant waived payment of the balance
amount of R39 900.00. From the facts on record it is highly
improbable that the Appellant would have waived 50% [fifty percent]
of the agreed fee, when it had expenses that it had to pay in
connection with the show, as testified by Swart. It is not in dispute
that the Appellant had expenses which had to be paid.
From
the evidence on record it is clearly shown that the Defendant made
profit out of the show [R40 876.00]. On the totality of
the facts on
record there is no probability which favor the Respondent’s
version. The documentation and in particular letters
written on the
Respondent’s behalf do not support a submission that a waiver
had occurred.
On
a proper scrutiny of the correspondence between the parties,
subsequent to the demand to the Respondent to pay up the balance
aforesaid, after the event/show had taken place, can it be said that
there was a waiver of the right of the claim to the balance
of R39
900 as alleged by the Respondent?
From
the documentation filed on record it appears that, the first demand
by the Appellant was by way of a letter dated 13 March
2009 (“the
1st letter”) in which letter the Appellant’s bookkeepers,
Financial Services, on behalf of the Appellant
demanded payment of
the balance of R39 900.00 in issue herein plus interest from the
Respondent.
The
first letter does not seem to have received any response from the
Respondent. Nor was there an indication forthcoming from the
Respondent that payment of that balance had been waived by Senekal.
One
would have expected the Respondent to immediately deal with this
issue in writing on receiving the 1st letter of demand. On
21 May
2009 the Appellant wrote a letter dated 21 May 2009 (“the
second letter”) to the Respondent, in which letter
Swart
confirms a telephone conversation between himself/Swart (the sole
member of the Appellant) and the Respondent, wherein amongst
others,
the balance owing by Respondent aforesaid [R39 900.00 plus interest],
was confirmed and further demand made to the Respondent
to settle the
balance. The second letter also does not seem to have received any
response from the Respondent.
The
Appellant again wrote another letter to the Respondent dated 15 June
2009 (“the 3rd letter”) in which letter the
final demand
is made for the payment of R39 900.00 plus interest (total of R44
554.76 demanded). Again the third letter does not
seem to have
received any response from the Respondent.
On
18 February 2010 Appellant’ Attorneys of record wrote yet that
another letter of demand to the Respondent (“the 4
letter”)
pertaining to the R39 900.00 still owed plus interest. Again this
letter does not seem to have received any immediate
response from the
Respondent.
On
31 March 2010 the Appellant yet again wrote a letter of demand to the
Respondent. From the record it appears that this is the
only letter
which received reaction from the Respondent by way of a letter from
her Attorneys of record dated 31 March 2010; in
which letter it is
stated on behalf of the Respondent that she denies any liability
whatsoever
for the amount claimed by the Appellant. The Appellant attorney’s
letter of 18 February was also responded by letter
dated 31 March
2010, and the Attorney was referred to the response/letter to the
Appellant dated 31 March 2010.
I
may just state that nowhere in the letters aforesaid [the one to the
Appellant’s Attorneys and/or the one to the Appellant
himself],
is any mention made of a waiver of payment of the balance of R39
900.00 by the Appellant and/or any of the Appellant’s
representative/Senekal.
Seeing
from the correspondence alluded to above that there has been demand
for the payment of the balance of R39 900.00 plus interest
since 13
March 2009, followed by several letters from the Appellant demanding
payment, without any response whatsoever by the Respondent,
one would
have expected that if indeed there was a waiver by the Appellant as
alleged by the Respondent, this would have been mentioned
in
correspondence by the Respondent herself, and/or her Attorneys.
Nowhere in any of the letters from the Respondent’s Attorneys
is any mention made of a waiver. This defence of a waiver was only
raised for the first time in the plea
From
the documentation/correspondence set out above the learned Magistrate
a quo cannot have been correct in stating that “the
documentation supports the version of the Defendant”
[Respondent]; the contrary seems more probable; in fact the
documentation/correspondence
does not support the version of the
Respondent at all.
On
the totality of the evidence on record, it is clear that Senekal had
no authority to have waived payment of the R39 900.00 balance,
if he
indeed did so. Swart’s evidence in this regard was not disputed
and the probabilities militate against the fact that
Senekal could
have had authority, either express or implicit.
Further,
from the totality of the evidence, viewed objectively as a whole, it
cannot even be said that Senekal actually waived payment
of the
balance aforesaid. The Respondent thus did not discharge the onus to
show that Senekal had authority and/or that a waiver
had taken place.
The
Respondent, in the alternative, pleaded estoppel; i.e. that the
Appellant is estopped from denying that Senekal had no authority
to
waive payment of the R39 900.00 balance. Before this [estoppel] can
even come into play the Respondent must prove that there
was a waiver
by Senekal. I have already stated above that on the facts and on the
totality of the evidence on record there was
no waiver of payment of
the balance of R39 900.00 by Senekal.
Even
if there was a waiver, [which has not been proved], the Respondent
has also not discharged her onus in proving estoppel. The
Respondent,
to succeed on estoppel, must have shown that the Appellant and/or
Senekal made some representations, whether negligently
or
intentionally, and that she acted to her detriment as a result of
such representation resulting in some prejudice on her. On
the facts
and looking at the totality of the evidence on record this cannot be
so. The Respondent has not shown that she suffered
any prejudice
and/or that she acted to her detriment. It cannot be said, on the
facts, that the Appellant made some representation,
and that the
Respondent acted to her prejudice by virtue of the alleged
representation.
Surely
the Appellant’s business is to employ an artist to present a
show. The Appellant only produces the show and incurs
expenses. It
surely cannot be a matter where the Appellant would not require
payment. The Appellant would surely require payment
in order to pay
expenses. In this regard the dicta of Roper J in the Kannemeyer
judgement supra at pp585H & 586A would be appropriate;
where the
following was said:
“
The
Court must take into account the unlikelihood, the strong
improbability, that a man will lightly waive a right conferred upon
him by law. ”
Fagan
JA, in the Laubscher judgement supra at p702E reinforced this
statement by saying:
“
*n
Afstand van regte word nie vermoed me, maar moet streng bewys word...
”
The
Respondent’s Attorney submitted that the note on the proof of
payment [for the deposit/initial amount of R39 900.00] to
‘Chari’/
Senekal, written by the Respondent, to urgently send “
plakkaarte” [Posters]-PI70 of record, is
an indication and/or
creates the impression that Senekal had authority to amend the
contract.
How
a pack a pack of cards/posters impacts on the authority to waive
payment escapes me. From the document itself/proof of payment,
it
cannot be said that correspondence about proof of payment was
directed to Charl/Senekal, as alluded to by the learned Magistrate
at
page 198 line 30 of her judgement. Nowhere does the document even
state ‘for attention Chari Senekal’.
All
that is on the proof of payment document is a note from the
Respondent to ‘Chari’ to urgently send a pack of
cards/posters
to an address provided therein. This document cannot be
said to be proof that Senekal had any authority whatsoever to waive
payment
of the Balance R39 900.00 as alleged by the Respondent.
Surely the minute the first letter of demand by the Appellant was
sent
to the Respondent, she would have immediately reacted thereto
and stated that the Appellant had waived payment of the balance of
R30 900.00. This defence seems to be an afterthought; it is not
supported by the facts and correspondence.
In
fact the only persons mentioned by the Respondent regarding payment
of monies, as appears on Page 171 of the record are Frans
Swart, the
sole member of the Appellant; and Cecile Kleyn the administrative
manager of the Appellant then [at email address- Cecile@lefra.co,zal;
not Charl/Senekal as the Respondent’s legal representatives
seeks to portray Clause 11 of the agreement, signed by the Respondent
clearly stipulates that the person signing the agreement on behalf of
the party warrants that they are duly authorized to bind
their
respective principals. On behalf of the Appellant the agreement was
signed by Frans Swart [not Chari Senekal]. Nowhere in
the agreement
is Senekal given any authority to bind the Appellant in any way.
On
facts and on the totality of the evidence on record, in my considered
view, it cannot be said that the Respondent discharged
the onus of
proving on a balance of probabilities that the Appellant waived its
right to the payment of the balance of R39 900.00
owed to it by the
Respondent, nor can it be said that the Respondent proved estoppel
against the Appellant. The probabilities are
just not in favor of the
version put forward by the Respondent.
As
already stated above it is trite that the party raising a waiver
bears the onus to prove on a balance of probabilities that there
was
a waiver of rights by the other party.
Respondent
did not discharge its onus to prove on a balance of probabilities
that the Appellant waived its right to the payment
of the balance of
R39 900.00;] nor did the Respondent succeed on the facts/evidence in
showing that the Appellant should be estopped
from denying that
Senenkal had any authority to waive Appellant’s rights to the
payment of R39 900.00.
The
learned Magistrate in the Court a quo should have thus upheld the
Appellant’s claim and should therefore have granted
judgement
in the Appellant’s favor in terms of prayers (a), (b) and (c)
of the particulars of claim.
In
the result the Appeal is upheld with costs and the order of the court
a quo dismissing the Plaintiffs action is set aside and
replaced with
the
following
order:
“
The
Plaintiffs claim is upheld and the Defendant is ordered to pay to the
Plaintiff:
(a)
An amount of R39 900.00;
(b)
interest at the rate of 15.5% p.a. from 15 August 2008 to date of
payment;
(c)
Costs of suite
L
M MOLOPA-SETHOSA JUDGE OF THE HIGH COURT
I
agree
E
M MAKGOBA JUDGE OF THE HIGH COURT
DE
JAGER KRUGER VAN BLERK ATTORNEYS FOR APPELLANT REF: P VAN BLERK/L1745
c/o VFV ATTORNEYS
CORPORATE
PLACE, BLOCK A
39
SELATI GARDENS
PRETORIA
TEL:
(012) 460 8704
FAX:
086 645 7770
REF:
H BEUKES/sj/MAT25725
CONRAD
SCHULZ INC
ATTORNEYS
FOR RESPONDENTS
c/o
PRETORIUS & CILLIERS ATTORNEYS
297
BOOTES STREET
WATERKLOOFRIF
PRETORIA
TEL:
(012) 460 9488
FAX:
(012) 346 8919
REF:
KARIN PRETORIUS