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[2013] ZAFSHC 36
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Umanzi Plant & Sales BK v Iceburg Trading 717 BK t/a Pride Rock Drilling and Blasting (4302/2012) [2013] ZAFSHC 36 (28 January 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 4302/2012
In the matter of:
UMZANI PLANT &
SALES BK
...................................................
Applicant
and
ICEBURG TRADING 717
BK t/a
PRIDE ROCK DRILLING
& BLASTING
.................................
Respondent
_____________________________________________________
JUDGEMENT BY:
MOLOI, J
_____________________________________________________
HEARD ON:
21 FEBRUARY 2013
_____________________________________________________
DELIVERED ON:
28 FEBRUARY 2013
_____________________________________________________
[1] In this matter the
applicant sought an order in terms of which the respondent is ordered
to pay to the applicant a contractual
amount of R297 828,84.
[2] During April 2012,
the applicant rented out four tipper trucks and an excavator to the
respondent for purposes of conveying
crushed stone used in road
construction. It was agreed that the applicant would render a bill
(invoice) on a monthly basis to the
respondent and that the latter
would effect settlement thereof within seven days of its receipt.
Several such bills (invoices)
were delivered to the respondent by the
applicant and only a few were settled. This led to certain
negotiations taking place between
the parties to have the issue
resolved amicably. The respondent failed, however, to settle the
other invoices, none the less.
[3] Eventually on 3
October 2012 in the presence of certain witnesses an agreement was
reached to finally settle the applicant’s
claim at an amount of
R297 828,84. This settlement was reached after the applicant made
significant concessions to the respondent.
On 10 October 2012 the
respondent confirmed the settlement amount agreed to and offered to
liquidate the amount in three monthly
instalments of R99 276,28 which
was, of course, not part of the settlement reached.
[4] The respondent raised
several defences why it should not pay the agreed amount. In its
conjuncture, the respondent alleged the
existence of factual disputes
that necessitated the matter being referred to trial. To support this
fallacy, the respondent took
issue with the operational hours the
vehicles were actually in use; he queried the accuracy of the monthly
invoices sent to him
and brought into question the breakdown of the
excavator, etc. The respondent subsequently made own calculations and
argued that
its indebtedness to the applicant was in the amount of
R199 439,57. With regard to its own letter confirming the agreement
reached
on 3 October 2012 the respondent alleged the letter was
written and sent by its accountant without the director’s
authorisation
and that the director (member) had no knowledge
thereof. The respondent also raised the question of absence of a
signature on the
said letter. On the eve of the hearing the
respondent filed additional heads of argument suggesting the letter
in question was
an offer was not accepted and consequently there was
no basis for claiming the amount mentioned in it relying on
Kotze
v Suid-Westelike Transvaalse Landbou Koöperasie
2005 (2)
SA 295
SCA on 301G – I.
[5] The alleged dispute
of fact raised by the respondent cannot fly and is illusionary. The
dispute need to be genuine and
bona fide
to demand referral to
a hearing:
Parker v GWB Kinsey & Co (Pty) Ltd
1988
(1) SA 42
ZS at 51E and
Von Steen v Von Steen
1984 (2)
SA 203
(T) at 206B. The court needs to analyse the evidence and apply
its discretion to determine whether a genuine dispute of fact existed
or not:
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd
1949 (3) SA 115
(T) at 1162. Moreover all the disputes
had been cleared when an agreement was sealed on 3 October 2012. The
court is of the view
that this defence and the request to refer the
matter to trial does not hold water as it is artificial in character.
The facts
before the court are of sufficient clarity to make a
ruling.
[6] As to the hours the
vehicles were in actual use as indicated above, the applicant during
the meeting of 3 October 2012 made
certain adjustments that were
accepted by all present. Equally the breakdown of the excavator was
dealt with during that meeting.
The personal calculations made by the
respondent fixing the amount owing at R199 439,57 were done after the
agreement was reached
on 3 October 2012 and were not discussed with
anybody. These calculations were made without consultation and cannot
alter the agreement
reached on 3 October 2012. The letter written to
confirm the settlement reached on 3 October 2012 allegedly written by
the accountant
without authority is key to the determination of this
matter. The person who wrote and transmitted the letter to the
applicant
was part of the meeting that was holding on that day. If
there was no such meeting held or if she was not present when the
agreement
was reached, how would she have arrived at exactly the
amount claimed by the applicant? The respondent confirmed the meeting
was
held on 3 October 2012. The said letter was written on 10 October
2012 and the respondent stated that it only became aware of its
existence when opposing papers were drawn. The said opposing papers
were attested to on 23 November 2012. The likelihood of this
not
being disclosed to the members of the close corporation by the
accountant is remote and near impossible. Moreover, in the said
letter the method of payment, viz three monthly instalments of R99
276,28 was raised and it is impossible that the accountant,
on her
own and without knowledge of the members, can decide how to expend
the funds of the close corporation.
[7] What bedevils the
respondent’s ease further is the confirmatory affidavit of the
accountant to the effect that she did
not have the authority nor
permission to write and dispatch the said letter. Such is impossible
in a business environment as an
accountant cannot act without mandate
or take decisions without being authorised to do so either by policy
directives or the members
of the close corporation itself.
Furthermore it is easy for her to be influenced or even dictated to
how to depose failing which
she could be relieved of her
responsibilities. The contents of the said letter were, however not
denied. The fact that the respondent
questioned the validity of the
letter in that it was not signed can equally not be sustained. On the
contrary it showed that the
respondent was prepared to clutch at
every straw and having to avoid liability. The counsel for the
respondent was asked to cite
one authority requiring a letter to be
valid only if signed but could not. A letter on the respondent’s
own letterhead, is
not a contract or a will that cannot be binding if
not signed. What further confirmed the attitude of the respondent was
to later
include, as a defence, the fact that the letter contained an
offer and by refusing to accept the instalment payments made in it,
the applicant rejected the offer leaving nothing to base the claim
on. This assertion contradicted what was said above, viz that
the
letter was written without authority and that the respondent did not
know about it.
[8] The court is more
than satisfied that the applicant’s claim must succeed and the
respondent’s defences must be dismissed.
The frivolous nature
of the defences raised in order to frustrate the applicant’s
claim should rightfully be visited with
a punitive cost order. The
defences are diverse and contradictory.
ORDER
[9] The following order
is made in the premises:
9.1. The respondent is
ordered to pay the amount of R297 828,84 to the applicant;
9.2. The respondent is
ordered to pay interest on the said amount of R297 828,84 at the rate
of 15,5% p.a. calculated from 3 October
2012 until the full amount
shall have been paid.
9.3. The respondent is
ordered to pay the costs of the application on an attorney and client
scale.
______________
K. J. MOLOI, J
On behalf of the
applicant: Adv. D M Grewar
Instructed by:
L & V Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. MDJ Steenkamp
Instructed by:
Matsepe Inc.
BLOEMFONTEIN
/eb