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[2013] ZAFSHC 175
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Rinick Consulants CC v Smith (1740/2013) [2013] ZAFSHC 175 (27 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1740/2013
In the matter between:-
RINICK CONSULTANTS
CC
..........................................................
Plaintiff
(Reg. no. 1991/024268/23)
and
NARILE-ANEL SMITH
...............................................................
Defendant
_____________________________________________________
HEARD ON:
8
AUGUST 2013
_____________________________________________________
JUDGMENT BY:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
27 SEPTEMBER 2013
_____________________________________________________
[1] These are provisional
sentence proceedings. The plaintiff provisionally claims an amount of
R721 866.51, interest theron
at a rate of 15.5% per annum
a
tempore morae
from the 1
st
January 2010 as well as the
costs on the special scale as between attorney and client. The
defendant defends the matter.
[2] In its summons the
plaintiff alleged that the defendant was indebted to the plaintiff in
terms of a written agreement which
the defendant signed at Bethlehem
on 15
th
December 2011 –
vide
annexure 1. The
agreement was an acknowledgement of debt, pure and simple. The
plaintiff was, at all times material to the dispute,
the lawful
holder of the acknowledgement of debt. The original debt was
R745 000.00 as on 15
th
December 2011. The total sum
of the three payments the defendant made in reduction of the capital
was R83 300.00 as on 31
st
January 2013. Ever since
the third payment the defendant remained in default until the
plaintiff initiated this proceedings on
6
th
May 2013 to
recover the outstanding balance.
[3] In her answering
affidavit, duly filed on 24
th
May 2013, the defendant
denied that she was truly and lawfully indebted to the plaintiff in
the alleged amount or any portion thereof.
The thrust of her defence
was that she was not bound by the document (annexure 1) on which the
plaintiff’s action was grounded.
The edifice of her case was
that, although she signed the acknowledgement of debt in favour of
the plaintiff at Bethlehem on 15
th
December 2011, she did
not sign such document on her own free accord. She alleged that she
involuntarily signed the document under
duress. She maintained that
the unbearable fear which induced her to append her signature to the
document was improperly created
by the plaintiff’s powerful
representatives –
vide
par 6 answering affidavit.
[4] Besides her aforesaid
substantive defence the defendant also raised a point
in limine
.
The preliminary point revolved around the contention that the
acknowledgement of debt constituted a credit agreement in terms
of
section 8(4)(f)
of the
National Credit Act 34 of 2005
. I shall revert
to the preliminary point later.
[5] In the replying
affidavit the plaintiff denied, through its deponent, that its
member, Mr G.J. van Niekerk or its labour consultant,
Mr F.J. Botes,
or its attorney, Mr J.F. de Beer, or any other person individually or
collaboratively, ever instilled fear in the
defendant or her parents,
which fear improperly induced her to act in a manner detrimental to
her own interest. The plaintiff emphatically
denied that it
improperly threatened to have the defendant arrested and criminally
prosecuted unless she signed the acknowledgement
of debt. Similarly
the plaintiff denied that it unduly threatened to have the defendant
arrested and criminally prosecuted unless
her parents signed
suretyship agreement in favour of the plaintiff as co-principal
debtors. The plaintiff replied that the defendant
freely and
voluntarily signed the acknowledgement of debt as the principal
debtor.
[6] The defendant’s
parents, so asserted the plaintiff, further also freely and
voluntarily signed the suretyship agreement
as sureties and
co-principal debtors. Moreover, her parents also authorised the
plaintiff’s attorney to register their residential
bond as the
real security for the repayment of the money their daughter owes to
the plaintiff on account of her theft.
[7] There were several
undisputed facts in this matter. The plaintiff is a close
corporation. Its deponent is Mr Gert Jacobus van
Niekerk. He is its
sole member. He is an accountant by profession. The defendant has
been in the employ of the plaintiff for a
period of approximately
nine years immediately preceding the termination of her contract of
employment. She was appointed as a
receptionist and administrative
clerk. The scope of her duties included, among others, the following:
to receive cash and
other forms of payment;
to issue receipts for
money received;
to pay over money
received from clients to South African Revenue Service and others;
to file proof of
payments and receipts; and
to deposit money
received in the plaintiff’s bank account.
[8] The defendant stole
money from the plaintiff over a period of ± four years. She
repeatedly falsified documents and defrauded
the plaintiff of various
sums of money during the period stretching from December 2007 until
October 2011 when her rampant thieving
was discovered. Mr F.J. Botes
first informed her on 1 November 2011 about the financial
irregularities. She admitted to him that
she had indeed stolen cash
from the plaintiff. At first she falsely indicated that she started
with the thieving in the year 2011,
but later on revoked that initial
response. She subsequently informed Mr Botes that she started
stealing from her employer way
back in 2008. Both statements turned
out to be untrue. It became common cause that she started stealing in
the year 2007.
[9] On 1 November 2011
the defendant was served with a written notice of disciplinary
hearing which was scheduled for 8 November
2011. There were two
charges levelled against her. The first charge was dishonesty. It was
alleged that she took the sum of R75 713.20
from her employer
between 20 October 2011 and 27 October 2011 without the employer’s
consent. The second charge was also
one of dishonesty. It was alleged
that during September 2011 she received an amount of R2 100.00
from Tishas Deliveries, her
employer’s client, but issued no
receipt and took the money for herself.
[10] On 2 November 2011
the defendant, after going through the cash receipt book, was unable
to work through the cash receipts books
in order to identify all the
amounts she had misappropriated. She resigned from the plaintiff’s
employment on the same day.
The parties signed an agreement whereby
the contract of employment was mutually terminated –
vide
annexure “rk3” - replying affidavit. The parties agreed
that the proposed disciplinary hearing be abandoned; that she
had
stolen from the plaintiff and that the precise magnitude of her
thieving had not yet been accurately ascertained at the time
of
termination of the contract of employment.
[11] Twelve days later,
on 14 November 2011, the defendant’s parents Mr Lawrence Frank
Meyer and Ms Stefanie Meyer met with
the plaintiff’s
representatives, namely: Mr Van Niekerk and Mr Botes at the latter’s
offices. With the aide of the
defendant, the magnitude of the
multiple acts of her dishonesty was ascertained, verified and
documented on 15 November 2011. They
were briefed about the
defendant’s misconduct and the extent of her theft. They signed
a separate document as sureties in
favour of the plaintiff. Moreover
they also agreed to sign a special power of attorney to authorise the
plaintiff to have a mortgage
bond registered against their fixed
property as security in favour of the plaintiff. The defendant’s
parents provided additional
security, because the plaintiff had
rejected the defendant’s offer of R2 000.00 per month –
vide
annexure “rk5(a) and (b)”.
[12] On 15 November 2011
the defendant and the plaintiff’s representatives met at Mr
Botes’ offices. The three individuals
namely: Ms Smith, Mr Van
Niekerk and Mr Botes together worked through the cash receipt books
and related financial documents and
jointly compiled a list of the
stolen money –
vide
annexure “rk4(a)” –
“rk4(v)”. It then came to light that the defendant had
not only misappropriated
money from the plaintiff, but also from the
plaintiff’s clients, which money the plaintiff was supposed to
have paid over
to SARS on behalf of its clients concerned. The
clients’ component of the theft added up to R64 415.77 –
vide
annexure “rk4(t)” and annexure “rk4(v)”.
[13] On the strength of
annexure “rk4” as a whole, the defendant acknowledged
under her signature that she owed the
sum of R680 462.66 to the
plaintiff alone quite apart from the aforesaid sum of clients’
money.
[14] On the strength of
annexure “rk4” as a whole and annexure “1” –
the acknowledgement of debt was
drafted at Bethlehem on 15 November
2011 by Mr J.F. de Beer. The document was signed by Ms N.A. Smith as
the debtor and Mr G.J.
van Niekerk as the creditor’s authorised
representative. The defendant, Ms Narile-Anel Smith, acknowledged
that she was indebted
to the plaintiff, Rinick Konsultante CC, in the
sum of approximately R745 000.00. That total consisted of two
distinct components:
viz
R680 462.66 being the
plaintiff’s money and R64 415.77 being money belonging to
clients.
[15] Subsequent to the
signing of the acknowledgement of debt, as well as the suretyship
agreement, three payments totalling R83 300.00
were made by and
on behalf of the defendant in reduction of the capital. The amount
represented the total sum paid prior to the
institution of these
provisional sentence proceedings.
[16] The dispute in the
matter primarily revolves around the crisp question: whether the
defendant was threatened to sign an inflated
acknowledgement of debt,
which, but for the intimidation and the resultant fear, she would not
otherwise have signed.
[17] Mr De Bruin
submitted that the defendant’s defence of
metus
or
duress was devoid of any substantive merits. Accordingly counsel
urged me to dismiss the defendant’s defence and to grant
provisional sentence in favour of the plaintiff.
[18] On the contrary, Mr
Cilliers submitted that the acknowledgement of debt on which the
plaintiff’s claim was grounded,
was improperly induced by the
serious threat of criminal prosecution. He argued that the defendant
was unlawfully intimidated to
acknowledge an excessive debt in favour
of the plaintiff, which debt she did not truly and lawfully owe to
the plaintiff. Accordingly
counsel urged me: to uphold the
defendant’s defence of
metus;
to dismiss the provisional
sentence sought by the plaintiff; and to allow the defendant to enter
the main arena without any procedural
impediment which the grant of
the provisional sentence would create.
[19] The peculiar
character of the remedy termed provisional sentence were once again
profiled in
Twee Jonge Gezellen (Pty) Ltd and Another v Land
and Agricultural Development Bank of South Africa t/a the Land Bank,
and Another
2011 (3) SA 1
(CC), where the constitutionality
of the provisional sentence procedure was unsuccessfully challenged.
The very instructive judgment
encapsulates, among others, the
elementary principles applicable to actions for the remedy of
provisional sentence.
[20] In adjudicating this
action I was reminded by the
Gezellen
decision firstly,
that the primary element of the remedy called provisional sentence,
is that it is a remedy that is only available
to a plaintiff who is
armed with a liquid document –
vide
par 15; secondly,
that the remedy of provisional sentence affords a plaintiff with a
liquid document only a provisional relief
and not a final judgment;
thirdly, that the remedy entitles the successful plaintiff to an
immediate payment of the provisional
judgment debt before the
principal case is entered into; and fourthly, that it entitles the
defendant, pending the final outcome
of the adjudication process, to
insistently demand security for the repayment of the amount paid as
provisional judgment debt –
vide
par 16. These then are
the elementary characteristics that define the unique remedy.
[21] The underlying
purpose of the provisional sentence procedure was articulated as
follows by Brand JA in the
Gezellen
case,
supra
,
at par [18]:
“
Conventional
wisdom maintains that the purpose of provisional sentence has always
been to enable a creditor, who has liquid proof
of his or her claim,
to obtain a speedy remedy without recourse to the expensive,
time-consuming and often dilatory processes that
accompany action
proceedings following upon an illiquid summons. Conversely, the
procedure precludes a defendant with no valid
defence from 'playing
for time'.”
[22] The provisional
sentence procedure is governed by
rule 8(1)
which requires that such
procedure be initiated in accordance with a specially designed form
of a summons. The plaintiff’s
cause of action has to be
materially particularised in the provisional sentence summons.
Moreover, the liquid summons relied upon
in support of the
provisional sentence must be attached to the special summons. The
summons must afford the defendant a reasonable
opportunity of
preparing the required response.
[23] The defendant who
denies liability is not required to deliver a plea to the summons as
is the case in ordinary action proceedings.
In proceedings by way of
provisional sentence, the defendant is called upon to set out the
grounds for the denial of liability
in an answering affidavit. Such
defendant is allowed to canvass defence(s), including defences beyond
the parameters of the liquid
document in order to show why he or she
should not be held bound by the terms and conditions of a liquid
document which
ex facie
the document itself the defendant’s
unconditional acknowledgement of indebtedness in a fixed or readily
ascertainable amount
of money due to the plaintiff is obviously
demonstrated.
[24] The defendant must
after the filing of the answering affidavit, afford the plaintiff an
adequate opportunity of responding.
The plaintiff has to respond by
way of a replying affidavit. In the replying affidavit the plaintiff
is required to deal with the
defendant’s defence grounded on
factual allegations even if such allegations are external to the
liquid document by virtue
of which the plaintiff has invoked the
provisional sentence proceedings.
[25] Although the rule
makes provision for the exchange of the answering affidavit and the
replying affidavit only, the courts have
judiciously assumed upon
themselves a discretion in terms of
rule 27(3)
to allow a further
affidavit on good cause shown –
Gezellen
,
supra
,
par [19].
“
The
theoretical justification traditionally advanced for the institution
of provisional sentence is that a liquid document gives
rise to a
rebuttable presumption of indebtedness. The plaintiff must therefore
allege in his or her summons that the document (a
copy of which is
required by
rule 8(3)
to be annexed to the summons) is genuine and
that, on the face of the document, the amount claimed is owing. If
the defendant disputes
these allegations, the onus is on the
plaintiff to prove that they are true. That includes, for example,
the authenticity of the
defendant's signature, the authority of the
defendant's agent, or the fulfilment of a 'simple condition'.”
[26] Where the defendant
relies on a defence which goes beyond the four corners of the liquid
document, she is required to produce
sufficient proof of such a
defence in order to satisfy the court that the probability of success
in the principal case is against
the plaintiff, before provisional
sentence can be refused –
Gezellen
,
supra
,
par [21].
“
If there is
no balance of probabilities either way with regard to the principal
case, the court will grant provisional sentence.
It follows that, if
there is a balance in favour of the plaintiff, provisional sentence
will also be granted.”
[27] In order to escape
the forceful attack launched by a plaintiff mightily armed with
provisional sentence artillery a defendant
must, therefore, satisfy
the court on a preponderance of probabilities that the plaintiff is
unlikely to ultimately succeed in
the principal case. Such is the
onerous nature of the onus a defendant has to discharge in order to
provisionally repel the mighty
provisional attack. Moreover the onus
that rests upon the respondent can only be discharged upon facts
raised on affidavit. The
court has no inherent discretion to hear
oral evidence on issues other than the authenticity of the
defendant’s signature
on the document. As regards the
authenticity of the defendant’s signature, the plaintiff bears
the onus.
[28] The discretion of a
court to refuse provisional sentence is a recognised elementary
feature of the provisional sentence procedure.
However the
troublesome question in any given case is always to determine
appropriate circumstances in which a court is justified
to refuse the
relief. According to the traditional approach the discretion of the
court to refuse provisional sentence was restricted
to rare instances
where there were special circumstances. The traditional approach
dictated that such a discretion to refuse be
exercised on the basis:
that prospects of success in the main case were evenly balanced; that
the balance of probabilities was
equal on both sides and that it was
just and fair to exercise the discretion in favour of the defendant
to prevent an injustice
–
Gezellen
,
supra
,
par [48].
[29] The aforesaid
discretionary rule was analogous to the rule of boxing. A challenger
for a boxing title has to fight to win the
contest. A draw is never
good enough to wrestle the crown away from the champ. In the case of
a draw the champ remains the champ.
[30] The modern approach
to the exercise of the discretion can be readily gleaned from the
headnote and the summary in the
Gezellen
,
supra
, p1 – p2
and p22 – p23 respectively. The exercise of a
discretion
in favour of the defendant is no longer rigidly confined
to a narrow set of predetermined conditions, in other words, special
circumstances.
The underlying consideration of the new approach is to
adequately protect worthy challengers of the provisional sentence
from the
unjustifiable limitation to their fair hearing rights.
[31] In the exercise of
the discretion entrusted to me in this matter, I am mindful that I
have to perform a delicate balancing
act between two legitimate
interests. At the one extreme of the pendulum is the right of the
plaintiff, a litigant armed with a
liquid document, to obtain speedy
relief which entitles him or her to obtain a speedy relief. At the
other extreme of the pendulum
is the defendant’s right to a
fair hearing. The gist of the guidelines as proposed in the
Gezellen
decision is that the exercise of a discretion is a two
way process. In the first place a defendant has to show that in the
parculiar
circumstances of this particular case the provisional
sentence constitutes a limitation of his/her right. In the second
place,
the plaintiff has to show that in the particular case
justification exists for the limitation of the defendant’s
right.
[32] It was once held
that a balance of probability which the defendant must raise in
provisional sentence proceedings must be substantial
before the court
will refuse provisional sentence. See
Inter-
Union Finance Ltd v Franskraal Strand (Edms) Bpk and Others
1965 (4) SA 180
(W). That view did not find support in
Syfret’s Mortgage Nominees Ltd v Cape
St Francis Hotels (Pty) Ltd
1991 (3) SA
276
(SE) at 286C-E. The
Franskraal
decision was overruled in
Rich
and Others v Lagerwey
1974 (4) SA 748
(A)
at 754H almost two decades before the
Syfret’s
decision. Although the defendant has a mountain to climb
in order to persuade the court to refuse provisional sentence the law
imposes
no such substantially burdensome onus on him before the court
will refuse provisional sentence. The yardshick remains the same,
viz
proof on a preponderance of probabilities. See
Rich
supra
and
Gezellen
,
supra
, para [22].
[33] The provisional
sentence is an important commercial instrument. However its adverse
features were identified and highlighted
in the
Gezellen
,
supra
, at para [34] –
[43]. Brand AJ considered whether the provisional sentence limits the
defendant’s right of an access
to courts under section 34 of
the Constitution. After a very instructive examination of the law the
learned judge came to the conclusion
that
“
And a
procedure that condemns a defendant inevitably, and without
discretion to final judgment, with no proper opportunity to present
his or her case, is simply unfair. The question is thus whether there
is a discretion.”
[34] The learned judge
went on to say:
[66] …It seems to me that the
procedure would be rendered constitutionally consistent if the common
law were developed in
accordance with the behest of the Constitution,
in a manner that gives the court a discretion to refuse provisional
sentence only
where the defendant can demonstrate the following
circumstances:
an inability to satisfy
the judgment debt;
an even balance of
prospects of success in the main case on the papers; and
a reasonable prospect
that all evidence may tip the balance of prospective success in his
or her favour.”
[35] All things been
equal the provisional sentence procedure will, not without more,
constitute an unfair limitation of a defendant’s
right to a
fair hearing. In the nature of things, however, provisional sentence
procedure has an inherent potential to constitute
a limitation to a
defendant’s right. Whether it actually does depends on the
peculiar circumstances of a particular matter.
[36] The provisional
sentence procedure would be found to constitute an offensive
limitation to the defendant’s right to a
fair hearing in
instances where:
the nature of the
defence raised does not allow the defendant to show, without the
benefit of oral evidence, a balance of success
in his or her favour;
the defendant is
financially unable to immediately satisfy the judgment debt in order
to enter the final arena should provisional
sentence be granted; and
outside the ambit of the
narrowly pre-determined ‘special circumstances’, the
court has no discretion to refuse provisional
sentence –
Gezellen
,
supra
, [50].
[37] The limitation of
the defendant’s right occurs only where the two offensive lines
of infringement intersect on the defendant’s
case. The first is
that the nature of the defence raised does not allow the defendant to
show the balance of success in his or
her favour, without the benefit
of oral evidence. The second line is that the defendant is unable to
satisfy the judgment debt.
The core finding of the court as regards
the exercise of a discretion in favour of the defendant is that it
must be established
that both of those cardinal requirements are
present, before it can be concluded that the defendant’s rights
will be infringed
by the grant of the provisional sentence. The
defendant bears the onus of showing that both elements of
infringements are present
–
Gazellen
,
supra
,
[51] read with [50] as conveniently summed up in [70](a).
[38] In the instant
matter, the defendant admitted, not only that she signed the
acknowledgement of debt but also that she indeed
stole the money from
the plaintiff, albeit a lesser sum than the sum specified in the
liquid document. Clause 6 annexure “1”,
in other words
the agreement, reads:
“
6.
Die ooreenkoms is nie ‘n
novasie van enige bestaande ander skuld of vonnis of eisoorsaak nie
en die Skuldeiser het die keuse
om die Skuldenaar op grond van
hierdie ooreenkoms aanspreeklik te hou of enige ander vonnis, skuld
of eisoorsaak. Die Skuldeiser
is bewus van sy reg om kriminele stappe
in te stel, en het geen stappe ingestel nie omrede hy op versoek van
die Skuldenaar haar
‘n kans wil gee om die skuld af te betaal.
Te alle tye en veral by verstek van tydige betaling sal die
Skuldenaar die reg
behou om die saak by die SAPD aan te meld.”
[39] In her answering
affidavit the defendant, supported by her parents, heavily rely on
the aforegoing clause, which they regarded
as threats and duress to
have her arrested unless she acknowledged that she stole the sum of
about R745 000,00 which obscenely
inflated sum she, in truth and
in fact, did not steal. About such duress the defendant said the
following at para 12.6 of her answering
affidavit:
“
12.6.
Mnr
van
Niekerk
het teenoor my vader bevestig dat hul bereid sal wees om nie
strafregtelik vervolging teen my in te stel nie mits ek ‘n
skulderkenning onderteken, waarvoor my ouers hul as borge sal
verbind.”
[40] According to the
defendant’s version it was obvious that the plaintiff’s
agents allegedly threatened her on 14
December 2011; that they
informed her father about the misconduct on the same day; that they
told her parents on the same day about
the specific conditional deal
they were prepared to make with her in order to suspend the
plaintiff’s right to have her criminally
charged and
prosecuted; that the defendant did not, at the first available
opportunity, tell her parents that she felt unduly intimidated;
that
she did not tell her parents that although she stole the money, she
did not steal that much.
[41] The plaintiff’s
agents would probably have first confronted the defendant alone,
seriously intimidated her, deprived
her of an opportunity to seek
legal advice and immediately caused her to sign an acknowledgement of
debt on the same day, 14
th
December 2011, before she could
have had any opportunity of discussing the matter with anyone. That
the agents did not do. Instead
they allowed her to go away with her
parents on the 14 December 2011 before she signed any agreement. She
and her parents were
politely asked to return the next day to sign
the agreement(s). The next day, 15 December 2011 she, on her own
accord, went back
to the plaintiff’s agents where she signed
the agreement. It must be kept in mind that her husband was a senior
police officer.
Her conduct, in my view, strongly militated against
her case. The conduct of the plaintiff’s agents on the contrary
was consistent
with those of people who did not harbour any
revengeful intent or to over-reach the defendant.
[42] The facts of this
matter show a remarkable resemblance to those in the case of
Jans
Rautenbach Produksies (Edms) Bpk v Wijma; Emil Nofal Filmproduksies
(Edms) Bpk v Wijma
1970 (4) SA 31
(T). At 33A-B the learned
judge, Trengove J, commented:
“
Die
vraag ontstaan dus of die verweerder hom met welslae op die
exception
quod metus causa
kan beroep. Die verweerder moet op oorwig van waarskynlikhede bewys
dat hy deur 'n dreigement van wederregtelike optrede beweeg
was om
die prokurasie te onderteken. Na my mening het hy nie daarin geslaag
om gegewens voor die Hof te plaas wat op 'n oorwig
van
waarskynlikhede aandui dat die beweerde dreigement wel gemaak is nie.
Maar selfs al sou ek in hierdie opsig fouteer, dan kan
die verweerder
se beroep op metus nietemin nie slaag nie, omdat hy nie bewys het dat
die dreigement contra bonos mores is nie.”
I share those sentiments.
[43] The learned judge
continued:
“
'n
Dreigement is 'n aanduiding of waarskuwing van 'n voorneme om teen
iemand op te tree as hy nie aan sekere eise of voorwaardes
voldoen
nie. So 'n dreigement sal, na my mening, as
contra
bonos mores
beskou word as die voorgenome optrede wederregtelik is, of as die
voorwaardes of eise wat gestel word regtens ongeoorloof is. Wat
was
die dreigement, na bewering, in die onderhawige geval, en watter
voorwaardes of eise is aan die verweerder gestel? Volgens
die
verweerder kom dit eintlik hierop neer. Rautenbach en Nofal sou aan
die verweerder gesê het dat hy 'n dokument moet teken
waarin hy
erken dat hy die geld wederregtelik toegeëien het en waarin hy
aan Liebenberg 'n volmag gee om sy bates te vervreem
en sy skulde te
vereffen. Hulle sou verder aan hom gesê het dat as hy so 'n
dokument teken, hulle nie strafregtelike stappe
teen hom sou neem
nie, maar as hy weier om te erken, die saak by die polisie aanhangig
gemaak sou word en hy dan op 'n aanklag
van diefstal gearresteer en
aangehou sou word.
Volgens die gegewens voor
die Hof kan die voorgenome optrede, na my mening, nie as onbehoorlik
wederregtelik beskou word nie. Die
aanduidings is dat die verweerder
die geld wederregtelik toegeëien het.”
(vide par 33B-E)
[44] The learned judge
finally remarked as follows about the conduct of the defendant
vis-à-vis
that of the plaintiffs:
“
Die
verweerder was dus nie net sivielregtelik aanspreeklik teenoor die
eisers vir die terugbetaling van die geld nie, hy was ook
strafregtelik aanspreeklik vir sy dade. Die eisers het dus die volste
reg gehad om die saak by die polisie aanhangig te maak. Die
eis of
voorwaarde wat Nofal en Rautenbach sou gestel het was opsigself ook
nie onbehoorlik of ongeoorloof nie. Die verweerder was
teenoor hulle
aanspreeklik en die eisers was geregtig op 'n skriftelike erkenning
en 'n onderneming om die skuld te delg. Die ooreenkoms
dat die eisers
nie stafregtelike stappe teen die verweerder sou neem nie as hy die
prokurasie teken was opsigself ook nie onwettig
nie.”
(vide 33E-G)
See also
Du Plooy
N.O. v National Corporation Ltd
1961 (3) SA 741
(W) at 475.
[45] The
Emil Nofal
decision was once questioned in
Arend v Another v Astra
Furnishers (Pty) Ltd
1974 (1) SA 298
(K). The basis of the
doubt expressed by Corbett J, as he then was, and two of his
colleagues do not have an adverse impact on
the
Nofal
principle as regards the facts of the present matter. I have no
reservation about the soundness of the principle. Compare
Shoprite
Checkers (Pty) Ltd v Jardim
2004 (1) SA 502
(O).
[46] Consider the
following hypothetical scenarios of facts. Z steals R1,0 m from X and
later the same amount from Y. Both of the
victims confront him. He
admits that he stole from them. He undertakes to make good his
wrongs. He offers to repay each of them
by way of specified and equal
monthly instalments. X accepts the offer but warns Z that he would
have him arrested and criminally
prosecuted should he breach the
undertaking – cf
Nofal
supra
. However, Y’s
reaction is completely different. He rejects the offer made by the
thief, Z. He insists that Z must pay him
back immediately. The
penniless Z cannot afford to do so. Thereupon Y warns Z that unless
he, by hooks or crooks finds the money,
even if he does so by robbing
a bank, he would have him arrested and criminally prosecuted.
[47] What emerges from
the two factual scenarios is that the two demands by X and Y are both
lawful. In my view there is nothing
morally repulsive or legally
wrong with their respective warnings, call them threats if you will,
that they would press for the
criminal charges against Z unless he
pays them back. But Y went rather too far. He induced Z to commit
another crime (bank robbery)
in order to repay him. This is precisely
what makes his demand contrary to good public morals – and this
is fundamentally
unlawful. Considerations of public policy would
dictate that Y, but certainly not X, be criminally prosecuted for
encouraging a
thief to commit another crime.
[48] The test to
determine whether an acknowledgement of debt signed under threat of
prosecution is
contra bonos mores,
it is whether the creditor
exacted something to which he was otherwise not legally entitled –
vide
Machanick Steel & Fencing (Pty) Ltd v Wesrhodan (Pty)
Ltd, Machanick Steel & Fencing (Pty) Ltd v Transvaal Coldroling
(Pty)
Ltd
1979 (1) SA 265
(W). Mr De Bruyn submitted that the
probabilities clearly showed that the defendant misappropriated money
to the tune of at least
the amount in the agreement and that the
plaintiff was legally entitled not only to recover the amount in
civil proceedings but
also to press criminal charges against the
defendant. In my view the submission is a correct proposition of law.
See Christie,
The Law of Contracts in South Africa
, 8
th
Edition, page 541 and further.
[49] As regards the
correctness or otherwise of the amount in dispute in this matter, it
must be borne in mind that a document was
attached to the provisional
sentence summons. The defendant appended her signature to such a
document. Under her signature she
unreservedly admits liability for
the payment of the sum of money stated in the document and subject to
the terms and conditions
embodied therein. This then is the starting
point of the inquiry. The mere authenticity, liquidity and the
certainty of the documents
are crucial aspects which bolster the
merits of the plaintiff’s claim.
[50] The defendant’s
answering affidavit is more important for what it does not say than
what is does. She does not aver that
she blindly signed the document
or that she did not really read the document before she signed it.
She did not put up a defence
that she was misled as to the contents
thereof, in particular the amount of the money she stole.
[51] As I understand her
defence, she agreed to pay the amount stated in the agreement whilst
she thought she did not really steal
more than R180 000,00. Her
case is that she knowingly agreed to pay the amount more than four
times the approximate amount
she reckoned she stole because she was
intimidated to do so. Her alleged fear of languishing in jail could
not logically be attributed
to the plaintiff’s agents. The
truth of the matter was that she had been constantly and increasingly
living in fear of arrest
and criminal prosecution ever since she
stole from her employer for the very first time on 6 December 2007.
Therefore she was entirely
to blame for anguish. The chicken have now
come home to roast. It will be readily appreciated, in these
circumstances that there
was nothing new in the alleged threat to
have her arrested and criminally prosecuted. She knew all along that
her criminal activity
would end this way. On those facts, she is
prima facie
bound by the agreement. Her allegation that she
stole no more than R180 000,00 is neither here nor there.
[52] It will be recalled
that when she was initially confronted about her stealing, she stated
that she started in 2011, the same
year in which her stealing spree
was detected. However, she was soon made to realise that she was
wrong.
[53] She then changed her
initial response. Again she gave an untrue explanation. Eventually
she was made to admit that she actually
started stealing in 2007 and
not 2008. It can therefore, be seen just how she hopelessly tried to
deceive her employer by drastically
shortening the length of her long
criminal activity. Now she is deceitfully trying, on oath for that
matter – this time to
substantively play down the amount she
has embezzled. I could find no factual basis for her claim. She
subsequently admitted that
the period of her stealing was four times
longer than she had previously claimed. That is one indication that
her assertion as
to the amount must be sceptically considered.
[54] The second factor
which is also telling against her assertion is that she was invited
to calculate or ascertain the precise
amount of the money she stole.
She dismally failed to do so after perusing the receipt books, she
then gave up. At that stage she
hardly mentioned that she has been
able to establish that she stole no more than R180 000,00.
Perhaps the magnitude of the
figures shocked her. This is typically a
case where the magnitude of the theft occurs over a lengthy period of
time and the perpetrator
does not keep track of the amounts
sporadically but frequently misappropriated. After a lengthy period
of time, as in this case,
one often finds that, at the end of it all,
a perpetrator gets utterly surprised at the magnitude of his or her
crime.
[55] Annexed to the
answering affidavit deposed to by the defendant are three payment
options. According to annexure “A1”
the amount payable is
shown as R675 000,00. It must also be remembered that in
addition to that payment of R70 000,00
and two further monthly
payments were made by and on behalf of the defendant without any
protest. None of those payments was made
without prejudice or without
admission of liability or with full reservation of the defendant’s
rights. All of them were
made over an extended period of time during
which neither the defendant nor her parents or even her husband cried
a foul play.
To crown it all, the defendant took no pro-active legal
steps to have the agreement, allegedly tainted by unlawfulness,
nullified
and the extortionists criminally prosecuted. Just as she
ultimately admitted that she stole over a long period of four years,
one
day she will perhaps confess that she stole over four times the
amount she now claims she stole.
[56] Obviously the
defendant perhaps conveniently so, forgot that she agreed to the
contents of annexure “RK4A” –
“RK4V”
which were annexed to the plaintiff’s replying affidavit. It is
significant to note that on 15 November
2011 before she signed the
agreement the defendant appended her signature below the following
words:
“
Ek
verklaar vrywillig,
Hiermee bevestig ek dat
ek die
bedrag van R680 462,66
aan
Van Niekerk Rekenmeesters
verskuldig is.”
[57] I hasten to remark
that the defendant makes no mention of annexure “RK4A” to
“RK4V” in her answering
affidavit. Her deadly omission
collectively considered together with those annexures exhibited by
the plaintiff, by way of the
replying affidavit, completely destroyed
the defendant’s fanciful defence as to the amount she
untruthfully claimed she had
misappropriated. Her failure to deal or
to mention those annexures in her answering affidavit justified the
drawing of an adverse
inference against her. In my view the defendant
has totally failed to prove, on the preponderance of probabilities,
that the plaintiff
will fail in the main action. This is not a case
where the amount claimed is marginally bigger than the actual amount
due. It is
inconceivable that the lady, the defendant, assisted by
her parents both of whom are teachers and her husband, a captain in
the
South African Police Service would sign an agreement for the
payment of an amount virtually more than four times the amount she
admits she owes.
[58] In balancing the
affidavits as I am required in terms of the
Gezellen
decision,
supra
, there is nothing before me to refute the
allegation made in the replying affidavit. The defendant did not seek
an opportunity
to introduce further evidence to refute the
plaintiff’s averments as contained in the replying affidavit.
Implicit in her
failure is a conclusion that she knew she had no good
cause to show. The attitude she displayed suggested that she has
resigned
herself to the outcome of the matter. In my view she thereby
tacitly acknowledged that she can do nothing further to refute the
formidable case presented by the plaintiff.
[59] On the facts and for
the reasons enumerated
above there is simply no
room in this matter for the exercise of a discretion in favour of the
defendant. Although the defendant
has demonstrated an inability to
satisfy the judgment debt, she has failed on the papers before me to
demonstrate an even balance
of prospects of success in the principal
case. She has also failed to demonstrate, on the papers before me, a
reasonable prospect
that oral evidence may tip the balance of
prospective success in her favour. Her mere inability to
provisionally satisfy the provisional
sentence alone is therefore
insufficient to trigger my discretion to refuse the relief –
Gezellen
,
supra
,
par [67]. I would therefore grant provisional sentence against the
defendant in terms of prayers 1, 2(a) and 3 of the provisional
sentence summons.
[60] In that event the
parties agreed in terms of clause 4.2 of the agreement, that the
plaintiff would be entitled to costs on
the attorney and client
scale.
[61] Now I turn to the
defendant’s point
in limine
as fully set out in
paragraphs 3, 4 and 5 of the defendant’s answering affidavit.
The defendant’s contention was that
the agreement (annexure
“1”) had all the elementary hallmarks of an agreement as
envisaged in section 8(4)(f) of
National Credit Act 34 of 2005
. That
being the case, so contended the defendant, the plaintiff was obliged
to first comply with the provisions of
section 129
and
section 130
of
the statute in question before initiating these proceedings to
enforce the acknowledgement of debt. Seeing that the plaintiff
had
not averred, in the provisional sentence summons that those
provisions had been complied with, the plaintiff’s claim
was
legally premature and unenforceable. So went the preliminary
argument.
[62] The aforesaid
argument was not new, particularly in this division.
“
Ek
het na my mening gefundeerde redes verskaf, ook met verwysing na
tersaaklike regspraak, oor waarom die interpretasie wat Mnr
Zietsman
aanvoer (en Mnr Reinders ook aangevoer het), nie korrek kan wees nie.
Mnr Zietsman se steun op en argumente met betrekking
tot Artikel 4
van die Nasionale Kredietwet, maak na my mening geen verskil aan die
feit dat die Wet steeds in totaliteit beoordeel
moet word en
ooreenkomstig die bepalings van Artikel 2 geïnterpreteer
moet
word aan die hand van die doel van die Wet en dus die bedoeling van
die wetgewer nie.”
Hattingh v Hattingh
(4210/2010)
[2011] ZAFSHC 108
(30.06.2011) [7] per Van Zyl J. I am in
respectful agreement.
[63] My sister, Van Zyl
J, went further to say:
“
Ek
meen dat die uitspraak waarmee ek in paragraaf 24 van my uitspraak
gehandel het, synde
VOLTEX
v CHENLEZA
2010
(5) SA 267
(KZP)
‘n baie duidelike aanduiding is dat die blote feit dat ‘n
bepaalde ooreenkoms binne die definisies van die Wet val
(en nie
spesifiek by wyse van Artikel 4 uitgesluit word nie), nie noodwendig
tot gevolg het dat dit deur die bepalings van die
Wet getref word
nie, omdat daar eerstens uiting gegee moet word aan die doel van die
Wet soos vervat in Artikel 3 daarvan en tweedens
omdat in sodanige
vasstelling, daar ook gelet moet word op die “nature, the
subject matter, substance, purpose and the function
of a particular
agreement, as well as the intention of the parties gathered from
their conduct”. Wanneer dit gedoen word,
soos ek in die
uitspraak uiteengesit het, kan ek steeds nie tot ‘n ander
gevolgtrekking kom (en meen ek ook nie dat `n ander
hof redelikerwys
tot `n ander gevolgtrekking sal kom nie) as dat hierdie kontrak op
geen wyse getref kan word deur die doelstellings
van die Wet en die
wyse waarop hierdie doelstellings bereik moet word soos bepaal in
Artikel 3 van die Wet nie. `n Ander bevinding
sal, vir die redes
reeds in my uitspraak vermeld, tot `n absurditeit lei en `n gevolg hê
wat nie die bedoeling van die wetgewer
kon wees nie.”
I could not agree more.
[64] That
Hattingh
decision,
supra
, and the
Voltex
decision,
supra
,
provide, in my view, a complete answer to the defendant’s point
raised
in limine
. To hold otherwise, would boil down to a
complete disregard of the purpose of the statute. The law will not
countenance such subversion
of the purpose for which the statute was
enacted. See also
Grainco (Pty) Ltd v Broodryk NO en Andere
2012 (4) SA 517
(FB) per Cillié J.
[65] The decision in
Carter Trading (Pty) Ltd v Blignaut
2010 (2) SA 46
(ECP) was distinguishable on clear grounds. Reliance on that decision
does not take the defendant’s case any further.
[66] In the light of the
aforegoing reasoning, I am inclined to conclude that the point
in
limine
was not well taken.
[67] Accordingly, I make
the following order:
67.1. The defendant’s
point
in limine
is dismissed with costs.
67.2. The defendant is
hereby called upon to provisionally pay the amount of R721 866.51
immediately to the plaintiff.
67.3. The defendant is
further directed to pay interest on the aforesaid capital claim of
R721 866.51 which interest must be
calculated at the rate of
prime rate minus 0.5% per annum which interest must be calculated on
a compounded daily balance from
1 January 2013. As on 1 January 2013
the prevailing prime interest rate was 8.5% per annum. Accordingly
the plaintiff is entitled
to claim interest at the rate of 8% per
annum calculated on a compounded daily balance.
67.4. The defendant is
directed to pay the plaintiff’s costs of these proceedings on
the special scale as between attorney
and client, in other words,
clause 4.2 of the agreement (annexure “1”).
______________
M. H. RAMPAI, J
On
behalf of plaintiff: Adv J.P. de Bruin SC
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On behalf of defendant:
Adv H.J. Cilliers
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
/spieterse/eb