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[2013] ZAGPPHC 414
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Moller v Bera (26356/2011) [2013] ZAGPPHC 414 (13 November 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 26356/2011
DATE:
13 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between :
IVAN
MOLLER Plaintiff
and
MOHAMMED
BERA Defendant
JUDGMENT
MBONGWE
AJ:
[1]
The
plaintiff commenced these proceedings by way of summons wherein he
set out details of the two causes of action on which he grounds
his
claims. In claim 1 the plaintiff claims payment of the sum of R350
000-00 due to him consequent to a written settlement agreement
between him and the defendant, while Claim 2 is founded on an oral
agreement between the parties. The defendant denies that the
document
the plaintiff relies on has ever gone beyond the status of a
settlement proposal the defendant had made, but was never
accepted by
the plaintiff. In defence of claim 2, the defendant alleges failure
by the plaintiff to discharge his undertaking in
terms of the oral
agreement and, consequently, disputes the plaintiffs entitlement to
receive the payment claimed.
[2]
The
association between the parties stems from an agreement between them
in terms whereof the plaintiff was to manufacture machines
called
pressers for the defendant's cupboards manufacturing business called
Melamine Industries. The resultant growth of the defendant's
business
soon directed to the need for bigger premises. That led to the
parties agreeing to purchase bigger premises together.
Suitable
premises were found by the plaintiff who also raised the sum of R550
000-00 as his contribution towards the deposit. For
his part, the
defendant contributed the sum of R 940 000-00 towards the same
course. The premises, referred to by the parties as
10 Bradford
Street, were then purchased in the name of an entity called FX
Veneers for an amount just over R 5 million. The defendant
was and
remained the sole member of that entity. The plaintiff was neither
involved in the operations nor did he have any financial
interest in
FX Veneer.
[3]
Pursuant
to the purchase of the new premises the parties entered into an oral
agreement in at beginning of January 2008 in terms
of which the
plaintiff, who operated from and spent most of his time at these
premises, would be responsible for the management
and maintenance
thereof. For this the plaintiff would be paid the sum of R50 000-00
monthly in arrears.
[4]
The
dispute between the parties began when the defendant failed to pay
management and maintenance fees due in the month of November
2008.
The parties held a meeting, at the instance of the plaintiff, early
in December 2008 to resolve the issue. Also present at
this meeting
was one Johnson, an employee of the defendant responsible for the
management of the defendant's business affairs.
The discussions went
awry, culminating in the parties agreeing to go their separate ways.
The defendant had then undertaken to
repay the plaintiff's
contribution of R 550 000-00 before 1
st
February 2009 and ended communication between himself and the
plaintiff, delegating all talks on the separation to Johnson whom
he
also instructed to draw up the relevant settlement agreement.
[5]
The
plaintiff told the court that subsequent to this meeting, Johnson had
hand
delivered
to him a fax copy of a document titled AGREEMENT ON THE SEPARATION OF
THE TWO PARTIES CURRENTLY INVOLVED IN MELAMINE INDUSTRIES".
The
plaintiff has never seen the original of this document. For the
importance this document in this case, I deem it necessary
to quote
its contents and remark on observations this court makes thereon. The
document reads as follow:
''
(a) The two parties involved are Mr I. Moller and Mr Mohammed Bera.
(b)
The building, 10 Bradford Street, is jointly owned by Mohammed Bera
and Ivan Moller.
(c)
The
relative inputs were; Ivan Moller R550 000-00 and Mohammed Bera
R940 000-00.
(d)
Ivan
Moller states that he wishes to dissolve his partnership in Melamine
Industries and requires the R550 000-00 of his input be
returned to
him.
(e)
Before
1
st
February 2009 Mr Bera will pay Mr Moller R550 000-00.
(f)
There
would be no further requirements or interest in the company and all
other buildings, equipment, current stock and debtors
and
creditors
would then be in the ownership of Mohammed Bera.
(g)
Once
this document is signed then there would be no further claim upon the
company, Melamine Industries or its associated companies
under the
control of Mohammed Bera."
(h)
This
agreement would be used if further claims were made against Mohammed
Bera and would nullify such claims."
[6]
This
document bears the signatures of the defendant and, according to the
defendant, also that of Johnson who signed as a witness.
They both
signed on the 18 December 2008. The document was signed by the
plaintiff on 5 January 2009. There is a hand inserted
isterik below
paragraph (h) and another just below the signatures with the
following handwritten notes: "Excluding the amount
of R50000-00
further payable by M. Bera to I. Moller. The last said to use all
means possible to recover the said amount."
It appears at the
bottom of this document that it was faxed on 18 December 2008 at
14h30 from FX Veneers, defendant's company,
to 011 4217371, a contact
number that was, according to the defendant, provided by Johnson as
the plaintiffs fax number. The plaintiff
denied knowledge of this
number and told the court that the written agreement was hand
delivered to him by Johnson.
[7]
The
dispute between the parties with regard to this document turns on how
the document reached the plaintiff and when the handwritten
insertion
thereon was made. The manner in which the document reached the
plaintiff impacts on the effect a subsequent letter dated
23 December
2008 has on the settlement agreement dated 18 December 2008. This
letter, which purports to alter the terms of the
agreement of
settlement, is addressed to the plaintiff by the defendant who sent
it to the same fax number appearing at the bottom
of the settlement
agreement. As stated above, the plaintiff denied knowledge of this
fax number, stated that the agreement was
delivered to him by Johnson
in person. The plaintiff also denied ever receiving the letter dated
23 December 2008 and, therefore,
being aware of the purportedly
altered terms of settlement.
[8]
The
defendant testified that he participated in the drawing of the
agreement and was present when Johnson faxed it to the plaintiff.
He
told the court that this document was merely a proposal of settlement
which was not accepted by the plaintiff, prompting the
defendant to
send the letter dated 23 December 2008 with different terms of
settlement to the same fax number. The defendant's
defence to claim 1
of the plaintiff is founded on the content of this letter. In
essence, the defendant is reneging in the letter
from his undertaking
to pay the plaintiff R550 000-00 in terms of the agreement of
settlement and offers the plaintiff payment
of the sum of R200 000-00
and one machine ( presser) in settlement.
[9]
With
regard to the handwritten insertion on the agreement, the plaintiff
testified that on being handed the settlement agreement
by Johnson,
he had noticed that provision had not been made for payment of the
outstanding R50 000-00 in respect of management
fees owing. He
discussed the omission with Johnson and inserted the relevant
provision after Johnson had acknowledged the omission.
[10]
The
plaintiff did not sign the document immediately, but had decided to
take
it with him to discuss it with his
fiancée
during
the holiday which they were due to take.
[11]
On
his return in January 2010 and, having agreed with his
fiancée
that
he accepts the settlement, the plaintiff signed and returned the
document to Johnson. The defendant denied that the document
was ever
returned or received by Johnson or him. Johnson was not called by
either party as
a
witness. The defendant testified that he only saw the document again,
with the handwritten insertion, when he received a letter,
to which a
copy was attached, from the plaintiffs attorneys demanding payment of
the sum of R360 000-00, as being the balance due.
It is to be pointed
out at this stage that it was common course between the parties at
trial that the defendant had paid to the
plaintiff irregular
instalments totalling R200 000-00 until July 2009, ostensibly in
terms of his letter dated 23 December 2008.
The balance of R350
000-00, mistakenly stated as R360 000-000 in the summons, to be
covered by the machine offered in the letter.
[12]
On
the other hand the plaintiff's
fiancée
was
called as a witness to clarify the miscalculation of the instalments
the defendant had made until July 2010. The amount claimed
in the
plaintiff's claim 1 was duly amended to read R350 000-00 by agreement
between the parties.
[13]
The
defendant ceased to make further payments after July 2010 thus paving
the way for the plaintiff to commence these proceedings.
[14]
The
defendant maintained in court that the terms set out in the letter
dated 23 December 2008 were the only settlement terms between
the
parties; that the settlement agreement had only been a proposal which
the plaintiff did not accept and that, therefore, having
paid the
R200 000-00 to the plaintiff, he was no longer indebted to the
plaintiff and that the plaintiff had not collected the
machine. Asked
whether the machine was still available, the defendant testified that
he has since disposed of it.
[15
] The issue this court is called upon to determine in respect of
plaintiff's claim 1 is; which document, if any, between the
parties
records the final terms of settlement between them. In denying the
receipt of the settlement agreement dated 18 December
2008 duly
signed by the plaintiff, the defendant also necessarily contends that
such agreement never came to being and that the
plaintiff cannot,
therefore, rely thereon for his claim.
[16]
]
I now turn to consider the pertinent circumstances surrounding this
agreement
and
to do so without putting on blinkers in respect of the letter dated
23 December 2008. The defendant's testimony was that he
participated
in the drafting of this agreement. He was obviously satisfied with
the contents, hence he sanctioned its dispatch
to the plaintiff.
Consistent with the evidence of both parties that, except for his
contribution of R550 000-00, the plaintiff
had no other interest in
the business of the defendant, the defendant protected his assets
tightly in the agreement and, correctly
so, undertook to pay back to
the plaintiff the R550 000-00 by a specified date.
[17]
There
is no time limit in the agreement for the plaintiff to sign and
return the
written
agreement, despite the defendant's testimony to the contrary. Barely
a week after dispatching the agreement, the defendant
dispatches a
letter signed by him in which he refers to a telephone conversation
he purportedly had with the plaintiff in which
payment to the
plaintiff was restructured to consist of part cash payment of R200
000-00 and the bigger balance to be covered by
the machine the
defendant offers to the plaintiff. The defendant faxed this letter to
the same fax number that the settlement agreement
was sent to. Both
parties told the court that they have never spoken to each other
since the meeting of early December 2008. Thus
the telephone
conversation the defendant refers to in the letter is nothing more
than a blatant fabrication. Similarly, the fax
number he sent both
documents to did obviously not belong to the plaintiff. He would not
have written to the plaintiff and refer
to a fictitious telephone
conversation recording agreed altered terms.
[18]
I
interpose to discern the most probable scenario in this case: The
plaintiff's testimony is that he has no knowledge of the fax
number
and that he received the settlement agreement in the form of a fax
copy from Johnson, clearly suggests that the defendant
was
dispatching these documents to himself or to someone known to him
other than the plaintiff. The defendant, in his creativity,
certainly
had never intended for the plaintiff to have sight of these
documents; he had a calculated intention not to pay the plaintiff
and
to stop at nothing to achieve that goal.
[19]
In
my view, the fax of the 18 December 2008 was discovered by Johnson
who handed a copy thereof to the plaintiff. It is also possible
that
Johnson had initially been part of the defendant's creativity, but
had later decided to spill the beans by handing a copy
of the fax to
the plaintiff. Armed with this document the plaintiff who capitalised
on it to recover his common course debt from
the defendant. Talk of
beating a party at his own game. This explains why neither party
could call Johnson as a witness. It further
explains the defendant's
allegation that after dispatching the settlement on 18 December 2008,
he only saw it again as an attachment
to the letter of demand he
received from the plaintiff's attorneys. Reality was that the
defendant had not expected the plaintiff
to be in possession of this
document. To add to the defendant's self-created woes, he could not
disavow the document; not with
the information pointing at him
and his companies contained therein.
[20]
Whatever
the circumstances, the court has to reach a decision on the facts
placed before it.
[21]
The
defendant continues in the letter to state that the revised mode of
payment is in lieu of the total cash payment agreed upon
in the
settlement agreement. It is extremely absurd that the defendant
unashamedly and wilfully gave conflicting evidence of his
perceptions
of the settlement agreement, amongst others; the document was not an
agreement, but a proposal which was never accepted;
in the letter and
the settlement document itself, he refers to the document as an
agreement. In the circumstances this court rejects
the defendant's
versions to the extent that such versions dispute the settlement
agreement as the agreement between the parties.
I find the letter
dated 23 December 2008 to be a display of a desperate attempt by the
defendant to create a justification for
reneging on the terms of
settlement, specifically to escape payment of the full amount due to
the plaintiff. This letter is consequently
rejected as proof of the
final settlement terms between the parties.
[22]
The
next question to be determined is whether the plaintiff communicated
his acceptance of the settlement terms to the defendant.
While I am
of the view that there was no need for a formal acceptance in the
light of the defendant's undertaking to pay before
a specified date,
I cannot find reason not to accept
the
plaintiffs version that he returned the duly signed settlement to
Johnson who was the authorised representative of the defendant.
The
defendant failed to call him as a witness despite stating that he was
financially able to bring Johnson from abroad where he
now lives. I
find that the defendant's alleged non receipt of the signed
settlement agreement, even if true, cannot justifiably
affect the
plaintiff adversely. I consequently find that the plaintiff has
successfully discharged the onus on him to prove his
claim.
[23]
In
respect of the plaintiff's claim 2, being for the payment of
management fees due, the defendant alleged that the plaintiff had
failed to perform in terms of the oral agreement and was,
consequently, not entitled to payment. The plaintiff denied this
stating
that he performed and had initiated the meeting between him
and the defendant to discuss the non-payment. The credibility of the
defendant is so wrecked that it is impossible for this court not to
view his uncorroborated evidence in defence of this claim as
yet
another ploy to escape settling his debt to the plaintiff. The
balance of probabilities, in the circumstances, must favour
the
plaintiff. The defendant's defence is, therefore, rejected.
[24]
In
the result, I find that the plaintiff has successfully discharged the
onus on him to prove both of his claims against the defendant.
[25]
The
following orders are, therefore, given;
The
defendant is ordered to pay to the plaintiff the sum of R350 000- 00
in respect of claim 1;
2.
The
defendant is ordered to pay to the plaintiff the sum of R50 000- 00
in respect of claim 2;
3.
The
defendant is ordered to pay interest on the amounts stated in 1 and 2
at the rate of 15.5% per annum calculated from the 1
st
February 2009, but, in respect of the amount in 1, the R200 000-00
paid and the period in which it was paid must be factored in
in
calculating the interest.
4.
The
defendant is ordered to pay the costs.
MBONGWE
AJ
ACTING
JUDGE OF THE GAUTENG HIGH COURTS
Date
of hearing : 22 October 2013
Date
of judgment 13 November 2013
REPRESENTATIVES:
1.
For the plaintiff : Adv. R. F. De Villiers
Instructed
by : Van Adel - Brink Attorneys, Pretoria
2.
For
the defendant : Adv. J. C. Erasmus
Instructed
by : Zaakir Ally Attorneys, Pretoria