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[2012] ZAGPPHC 64
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Super Blitz Trading (Pty) Ltd v Koen (11959/2009) [2012] ZAGPPHC 64 (9 May 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA /ES
(REPUBLIC
OF SOUTH AFRICA-)
CASE
NO: 11959/2009
DATE:09/05/2012
IN
THE MATTER BETWEEN:
SUPER
BLITZ TRADING (PTY)
LTD
.........................................................................
PLAINTIFF
AND
CHRIS
KOEN
..............................................................................................................
DEFENDANT
JUDGMENT
MAKGOBA.
J
[1]
The plaintiff instituted an action against the defendant based on an
acknowledgement of debt, claiming a total amount of Rl
240 953,36
being Rl 000 000,00 as the principal debt, R40 953,36 as collection
charges and R200 000,00 as additional charges (20%
of the principal
debt). The defendant admitted signing the acknowledgement of debt but
denies liability on the ground that the
document was signed under
duress.
[2]
The defendant filed a counter-claim for R3 million (three million
rand) based on a verbal commission agreement entered into
by and
between him and the plaintiff. The plaintiff denies the conclusion of
any agreement in respect of commission.
[3]
It is common cause between the parties that on 10 June 2008 the
plaintiffs attorneys, Van Gaalen Attorneys, transferred an amount
of
Rl,5 million to the trust account of the defendant. (The defendant is
a practising attorney.) The terms and conditions upon
which the Rl,5
million was transferred were set out in Van Gaalen Attorneys'
correspondence, namely an e-mail dated 5 June 2008
stating the
following:
"Geen
gelde kan uitbetaal word van jou trust rekening tot en met finale
afhandeling van die kontrak en lewering van die vereiste
dokumente"
And
further in a letter dated 6 June 2008 stating the following:
1.
that the amount payable into the defendant's trust account will not
be released/paid to any third party prior to the finalisation
of the
agreement between the defendant's client and the plaintiff in terms
of the purchase of the chrome ore;
2.
that all amounts paid into the defendant's trust account in terms of
the chrome ore transaction will be returned within 24 hours
after
instructions from Van Gaalen Attorneys if the aforesaid agreement has
not been concluded on or before 13 June 2008; and
3.
receipt of the following documentation before close of business on 9
June 2008:
(a)
defendant's client's title deed to the property (premises) where the
product is available;
(b)
Department of Mineral and Energy's official documentation to confirm
defendant's client's ownership and rights in respect of
the product
under abovementioned agreement;
(c)
necessary Land Affairs documentation to confirm that the defendant's
client is the official owner of the property;
(d)
proof that Hoffman Properties/Eiendomme has a general power of
attorney to sign on behalf of the rightful owner of the chrome
ore;
(e)
confirmation from defendant's client that there is currently no sale
agreement in place in respect of the property or product
available on
the property.
[4]
The defendant accepted the terms and conditions as set out above and
it is common cause that the terms and conditions as set
out above
were never complied with by the defendant and/or ever materialised.
However the defendant paid out the sum of Rl million
to his client,
Hoffman Properties, without instructions from Van Gaalen Attorneys
and/or the plaintiff.
[5]
The agreement in respect of the purchase and sale of chrome ore was
ultimately concluded and signed on 17 June 2008. Clause
6.1.4 thereof
makes it plain that the payment has to be retained by the seller's
attorneys (defendant in the present case) in a
separate interest
bearing trust account in terms of section 78(2)(A) of the Attorneys
Act, 53 of 1979. Payment could only be effected
against the issue of
weigh bridge certificates and invoices as stipulated in the aforesaid
clauses 6.1.4.1 to 6.1.4.3. The defendant
did not comply with these
terms of the agreement in that the monies were not put into a
separate interest bearing trust account
and were paid out before the
issuing of weigh bridge certificates and invoices.
[6]
It is further common cause that the defendant made several promises
and undertakings to repay the amount to the plaintiff and
ultimately
he was presented with an acknowledgement of debt which he signed on
31 October 2008.
[7]
On both issues, that is the acknowledgement of debt and the
counter-claim, the onus is on the defendant which he has to prove
on
a balance of probabilities. The defendant had a duty to begin and
indeed was the first to testify. Messrs Gerrie van Gaalen,
Matt
Barnard and Glenn Sherpherd testified on behalf of the plaintiff.
[8]
The defendant testified that he is a practising attorney admitted as
such during 1995. He acted on behalf of Hoffman Properties,
represented by MrEvre Hoffman. Hoffman acted as an agent for
Bakoni
Ba-Manyaka Tribal Authority ("Bakoni") and Pulama Maroga
Tribe ("Pulama"). Hoffman Properties entered
into a
purchase and sale agreement in terms of which the plaintiff would buy
chrome from Bakoni. The amount of Rl,5 million was
already
transferred to defendant's trust account on 10 June 2008 and before
the written contract was signed on 17 June 2008. It
was agreed that
the amount of Rl,5 million would be paid to Bakoni only upon receipt
of certain documentation from the Department
of Minerals and Energy
("DME").
[9]
The defendant stated that Hoffman and plaintiff amended the terms and
conditions of the agreement in the sense that: seeing
that they
realised that Bakoni only owned two million
tons
of chrome, the plaintiff would buy two million tons of chrome from
Pulama; the amount of Rl,5 million was then kept in the
defendant's
trust account on behalf of the plaintiff in respect of a verbal
agreement with Pulama.
[10]
On Friday 4 July 2008 the defendant received telephonic instructions
from Hoffman to transfer an amount of Rl 70 000,00 to
the account of
Hoffman Properties. His instructions were that this request was to
the knowledge of Mr Matt Barnard, a representative
of plaintiff, and
that Barnard will be present at a meeting on Saturday 5 July 2008
when the R170 000,00 will be paid to a certain
representative of
Pulama. The defendant then transferred an amount of Rl 70 000,00 to
the account of Hoffman Properties on Friday
4 July 2008. The
defendant received instructions from Hoffman late afternoon on
Saturday 5 July 2008 that the amount of R150 000,00
was paid to
Kgoshi Maroga as partial payment of the purchase price and that the
amount of R20 000,00 was paid to one Philemon in
respect of
commission on the purchase agreement. He was informed that these
payments were done in the presence of Mr Barnard. A
further meeting
was scheduled for Tuesday, 8 July 2008 for exchange of documents from
the DME and payment of the amount of R830
000,00 to Pulama.
[11]
On Monday 7 July 2008 the defendant transferred an amount of R830
000,00 to the account of Hoffman Properties upon Mr Hoffman's
request. On Tuesday 8 July 2008 at the scheduled meeting place
Hoffman and a friend Ricus van Zyl were murdered and robbed of the
amount of R830 000,00. On Wednesday 9 July 2008 the defendant was
informed telephonically by an employee of Hoffman Properties
of the
tragic events which occurred the previous day. The defendant
testified that he investigated the agreement between the plaintiff
and Pulama by meeting with the DME Polokwane on 23 July 2008 when it
was confirmed that the deal was a scam by people purporting
to be
Kgoshi Maroga of Pulama.
[12]
After the failure of the Pulama deal the plaintiffs representative,
Mr Barnard, asked the defendant to find another supplier
of chrome.
The defendant found such supplier, namely Maruwa Investments. The
defendant and one Mr Kal Rofail, an agent of Maruwa
Investments, held
a meeting with plaintiffs representatives, Messrs Sherpherd, Van
Gaalen and Barnard at Brooklyn Coffee Shop in
Montana, Pretoria on 1
September 2008. The defendant testified in respect of the meeting
held on 1 September 2008 that upon his
request as to how much
commission he will earn, Barnard told him that the plaintiff will pay
commission to him of R3 per ton, that
is a total amount of R3
million.
That
the commission was payable on the signing of the agreement between
the plaintiff and Maruwa Investments.
[13]
It is common cause that arising from the meeting held on 1 September
2008 the plaintiff and Maruwa Investments signed an agreement
for the
purchase of one million tons of chrome on 10 September 2008.
[14]
The discussion between the defendant and Mr Barnard in respect of the
commission was to the exclusion of all the other parties
at the
meeting. According to the defendant the two of them discussed and
agreed on the commission of R3 million during a smoking
break.
[15]
On 5 September 2008 the defendant transferred the balance of the
initial Rl,5 million, ie R500 000,00 in his trust account,
to the
trust account of Van Gaalen Attorneys. Since 16 September the
defendant made several undertakings to pay back the amount
of Rl
million to the plaintiff. In a letter to Van Gaalen Attorneys dated
16 September 2008 the defendant referred to the commission
in the
amount of R3 million due to him by the plaintiff and made a proposal
for the parties to both write off their respective
claims. Van Gaalen
Attorneys rejected the defendant's offer on the same date.
[16]
On 29 October 2008 Van Gaalen Attorneys sent a letter to the
defendant and requested the defendant to sign an acknowledgement
of
debt attached to their letter and return the signed acknowledgement
of debt before 17:00 on 29 October 2008. According to the
defendant
he ignored this letter and/or request seeing that he was not prepared
to sign the acknowledgement of debt.
[17]
The defendant testified that on 31 October 2008 Mr Sherpherd called
him and shouted and cursed him, threatened the defendant's
family,
said he will send people to the defendant to break his legs and/or
bones ("omjou bene te breek") and said he
will make life
very difficult for the defendant and his family if the defendant does
not sign and send back the acknowledgement
of debt within ten
minutes. The defendant then signed the acknowledgement of debt and
sent it back to Sherpherd knowing that he
may challenge the legality
later seeing that the acknowledgement of debt was signed under
duress. The defendant stated that since
the signing of the
acknowledgement of debt he made several undertakings to pay back the
Rl million seeing that he regarded the
threats as serious and that he
just wanted to get this unfortunate incident behind him and still
believed the plaintiff owed him
R3 million.
[18]
Mr Genie van Gaalen, the plaintiffs attorney, testified that he
drafted the purchase and sale agreement which was signed by
the
plaintiff and Hoffman Properties on 17 June 2008. He confirmed that
the advance amount of Rl,5 million paid into the defendant's
trust
account was to be held in the interest bearing account in terms of
section 78(2)(A) of the Attorneys Act, 1979 by the defendant
pending
further instructions. That he did not instruct the defendant to pay
out any monies out of his trust account before the
conditions
stipulated in the purchase and sale agreement were complied with.
That the required documentation from DME were never
received.
[19]
According to Mr Van Gaalen the defendant told him that "Ek het
die grootste fout vir julle gemaak" and promised to
repay the
amount. Van Gaalen drew up the acknowledgement of debt and sent same
to the defendant for signature on 29 October 2008.
The defendant
never contacted him to inform him that he signed the acknowledgement
of debt under duress.
[20]
Mr Van Gaalen testified further that he drew up the purchase and sale
agreement between the plaintiff and Maruwa Investments.
He was
present at a meeting held on 1 September 2008 at Montana, Pretoria,
when the negotiations were held with representatives
of Maruwa
Investments and the defendant. The issue regarding commission payable
to the defendant was never discussed and that he
received no
instructions to stipulate any commission payable in this deal. He
confirmed that Messrs Barnard and Sherpherd were
present at that
meeting.
[21]
The evidence of Mr Van Gaalen is clear and straight-forward. He was
not seriously attacked under cross-examination and his
explanation as
to the basis on which the monies were transferred and that it was
paid out without the necessary instructions is
accepted. Mr Van
Gaalen's evidence as to the confession made to him by the defendant
that the defendant admitted that he made a
big mistake is accepted.
Furthermore Mr Van Gaalen's evidence that the monies had to be paid
into a separate trust account for
investment purposes to carry
interest is accepted. All in all he was a credible witness and his
evidence is wholly accepted.
[22]
Mr Matt Barnard was at all material times hereto the operations
manager of the plaintiff. He was involved in some negotiations
of the
plaintiffs transactions, in particular the contract which was
ultimately signed on 17 June 2008. He testified that he was
aware of
the terms and conditions that the monies held in trust by the
defendant could only be paid out upon receipt of documentation
from
DME. No such documents were ever received by the plaintiff. He did
not give any instructions to the defendant to pay out the
monies to
Hoffman Properties or Pulama. After the murder and robbery of Mr
Hoffman the defendant confessed to him that he had made
a big mistake
by paying out the monies.
[23]
Mr Barnard testified further that the defendant introduced Maruwa
Investments to the plaintiff. He was also present at the
meeting held
at Montana, Pretoria, on 1 September 2008. According to him there
might have been a discussion between him and the
defendant regarding
payment of a commission but he did not conclude any agreement with
the defendant in that regard. According
to him he did not even have
any authority to agree to a commission on behalf of the plaintiff.
[24]
Mr Barnard stated that he was contacted by the defendant who informed
him that he received an acknowledgement of debt from
Mr Sherpherd and
was called upon to sign same. He then advised the defendant to sign
and said to him it is the right thing to do.
He denied that the
defendant told him of the threats made on the defendant by Mr
Sherpherd.
[25]
The evidence of Mr Barnard does not detract from the plaintiffs
version. It is so that he could negotiate but not conclude
agreements
on behalf of the plaintiff. He could not have authorised the transfer
of the monies out of the trust account. His version
as to the advice
that he gave to the defendant to sign the acknowledgement of debt is
acceptable. His denial as to the conclusion
of a commission agreement
is accepted, not only for his mere say-so but due to the inherent
improbabilities of the defendant's
version as will be dealt with
later hereunder.
[26]
Mr Glenn Sherpherd, the managing director of plaintiff, testified.
He confirmed the terms and conditions under which payment
of the Rl,5
million had to occur with reference to the necessary clauses in the
agreement. He stated that the plaintiff, as a purchaser,
would never
pay commission and that it is unlikely to agree to such commission
when negotiating a fixed price. That Mr Barnard
was never authorised
to agree to a commission with the defendant. No commission was
discussed at the meeting of 1 September 2008.
Mr Sherpherd instructed
his attorney, Mr Van Gaalen, to claim repayment of the amount of Rl
million from the defendant. He stated
that after the defendant had
received the acknowledgement of debt from Van Gaalen the defendant
called him to seek clarification
on the collection charges and
additional charges inserted in the acknowledgement of debt.
He
denied that he threatened and cursed the defendant in order to induce
him to sign the acknowledgement of debt.
[27]
Mr Sherpherd was an impressive witness and his version is accepted.
I
proceed to deal with the version of the defendant. The defendant
testified that Mr Barnard on behalf of the plaintiff was aware
of the
transfer of monies which is denied by Barnard. However the defendant
concedes that he made a mistake by not getting direct
authority from
Mr Sherpherd or Mr Van Gaalen. It is common cause that Mr Barnard
could negotiate but not conclude agreements, therefore
he could not
have authorised the transfer of the monies out of the trust account.
In any event the mere awareness of Barnard could
never be equated to
consent and/or authorisation.
[29]
Regarding the credibility of the defendant as a witness I must say
that the defendant was not an impressive and credible witness.
He was
not straight-forward in giving evidence and was argumentative and
even hostile while answering questions under cross-examination.
He
was so hostile towards plaintiffs counsel to an extent that the court
had to now and then intervene and request him not to indulge
in
man-to-man confrontation with his cross-examiner. Even then he would
argue with the court when the court tried to cool him down.
All in
all, the defendant rendered himself a poor witness on whose evidence
the court will not rely.
[30]
On his own version the defendant did not prove that the transfer of
trust money was authorised. In fact he conceded that he
made a big
mistake.
[31]
When it came to the acknowledgement of debt the following aspects
appear and render his version improbable:
31.1
At the time when request was made by the plaintiffs attorney, Mr Van
Gaalen, to have the acknowledgement of debt signed, it
was clear from
the correspondence and telephonic conversations that the defendant
had already admitted his liability and that he
had made several
promises to pay the amount.
31.2
One would have expected the defendant, as an attorney of more than
ten years experience, if he was not satisfied with the contents
of
the acknowledgement of debt, to write a letter to Van Gaalen
Attorneys objecting to the signing thereof and to record his
dissatisfaction
with certain terms of the acknowledgement of debt.
31.3
The defendant is an attorney. He does not explain why he did not
report the aspect of threats on his life to the police or
launch and
seek an interdict. His remarks in response are astonishing, i.e. that
he thought that Mr Sherpherd would not have carried
out his threats
anyway.
31.4
The defendant states as one of the reasons why he signed the
acknowledgement of debt that he knew that he could dispute the
acknowledgement of debt later due to the threats. This does not make
sense. Why would he at the time of signing harbor the intention
of
disputing it later because of the threat if he signed it under
so-called duress in the first place? Why would he not feel threatened
at a later stage? It is not clear as to at what stage he will become
not threatened so as to raise this defence.
31.5
What we see is that even after the signing of the acknowledgement of
debt he still continues to make promises to pay. Why not
record the
threats and convey same to the attorney of plaintiff or even the
police?
31.6
In his letter to the Law Society dated 18 February 2009 wherein he
responded to the complaint lodged against him by the plaintiff
the
defendant does not initially mention the fact that he signed an
acknowledgement of debt under duress. Only in his letter to
the Law
Society dated 25 March 2009 does he raise the allegations of duress
for the first time. Furthermore the defendant was prepared
to
negotiate with Mr Sherpherd to have the charges at the Law Society
withdrawn against him against payment.
[32]
In the light of the above facts the defendant failed dismally to
discharge the onus in respect of the allegations of duress
pertaining
to the signing of the acknowledgement of debt.
[33]
It is noteworthy that the defendant made further promises to pay even
after the signing of the acknowledgement of debt and
even after the
so-called threats on his life had ceased.
A
J Kerr: The Principles of the Law of Contract, 6th edition on page
319 makes the following observation:
"If
after the fear has been removed a person voluntarily performs what he
promised under pressure or otherwise ratifies the
transaction he is
regarded as having given fresh consent and the transaction stands."
[34]
In my view it does not matter whether the defendant signed the
acknowledgement of debt under duress. He conceded that the payment
of
monies out of his trust account was unauthorised and as such the
amount is due and payable to the plaintiff in any event. On
pages 325
to 326 of the same authority Kerr refers to the English case of
Barton v Amstrong & Others 1975(2) All ER (PC) 465
where it was
held that a defence of duress will not prevail where the predominant
reason for signing an acknowledgement of debt
relates to an amount
which was due in any event and for which the person signing accepted
a liability.
[35]
As to the defendant's testimony as to the alleged commission forming
the subject-matter of his counter-claim I am of the view
that the
defendant also failed to discharge the onus on a balance of
probabilities. It is clear that there is a denial of the actual
conclusion of the commission agreement by all witnesses for the
plaintiff.
[36]
The following also point to the falseness and inherent
improbabilities of the defendant's version of a commission agreement:
36.1
The failure of the defendant as an attorney to record the commission
agreement in writing. This should be measured against
the testimony
of Mr Sherpherd that it was the policy of the plaintiff to record any
such agreement in writing.
36.2
The defendant's version is that the discussion of commission with Mr
Barnard was held during a smoke break away from the other
parties
present at the meeting. One asks oneself as to why the defendant
would have discussed the commission during a smoke break
and agree
upon it away from the principal parties such as the plaintiff who was
represented by the managing director (Sherpherd)
and an attorney (Van
Gaalen).
36.3
The failure by the defendant thereafter to inform the principal
role-players and to record the conclusion of a commission
agreement
in an assertive manner. One would have expected him to record the
full terms and conditions of payment, and how and where
the agreement
was concluded given the fact that the amount involved was a huge sum
of R3 million.
[37]
Having regard to the aforesaid I make a finding that the issue of
commission was a trumped-up claim by the defendant in an
attempt to
avoid paying the claim of the plaintiff which he promised to pay
right throughout. His version is inherently improbable
and is
rejected.
[38]
I accordingly grant the following order:
(a)
Judgment is granted in favour of the plaintiff and the defendant is
ordered to pay the sum of Rl 240 953,36 plus interest at
8,7% per
annum from 31 October 2008 to date of payment.
(b)
The defendant's counter-claim is dismissed with costs.
(c)
The defendant to pay the costs of the action on attorney and client
scale as provided for in the acknowledgement of debt.
E
M MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
11959-2009
HEARD
ON: 12, 13, 16 AND 23 APRIL 2012
FOR
PLAINTIFF: ADVGM YOUNG
INSTRUCTED
BY: VAN GAALEN ATTORNEYS
c/o
McINTOSH CROSS & FARQUHARSON, PRETORIA
FOR
THE DEFENDANT: IN PERSON