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[2012] ZAGPPHC 77
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Tswane Teledata (Pty) Ltd v Kreyveldt (13091/2010) [2012] ZAGPPHC 77 (25 May 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA /ES
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 13091/2010
DATE:25/05/2012
IN
THE MATTER BETWEEN
TSWANE
TELEDATA (PTY)
LTD
...............................................................................
PLAINTIFF
AND
DUANE
KREYVELDT
...........................................................................................
….
DEFENDANT
JUDGMENT
KOLLAPEN.
J
[1]
This is an action in which the plaintiff seeks payment of the sum of
R230 833,33 from the defendant together with interest and
cost
arising out of an employment relationship between the parties.
Background
[2]
The defendant was the owner of a telecommunications business known as
Logitel (Pty) Ltd and which business operated from Middelburg
in the
Mpumalanga province.
[3]
In 2005 the plaintiff company purchased the assets and goodwill of
the business owned by the defendant and commenced running
the
business in its own name. The defendant was, however, appointed as
managing director of the business and was responsible for
the day to
day control and management of the business.
[4]
It appears that the defendant also held some shares in the plaintiff
company. The plaintiff had approximately eleven other similar
telecommunication businesses across the country and its head office
was located in Pretoria.
[5]
At the time the plaintiff effectively took control of the business in
Middelburg it owed the defendant approximately Rl million
in respect
of the purchase consideration of Logitel and the parties agreed that
this amount would be paid over twenty four months
by the plaintiff to
the defendant at the rate of R41 666,00 per month. The parties appear
to describe this as a salary that the
defendant would be entitled to
in return for his services over the period of twenty four months and
it appears that no separate
provision was made for the payment of a
separate salary and that the amount of R41 666,00 incorporated both
the payment in respect
of the outstanding purchase consideration as
well as the salary.
[6]
Upon the expiration of the twenty four month period and after the Rl
million was paid by the plaintiff to the defendant the
parties agreed
that the defendant would continue to remain in the employment of the
plaintiff.
[7]
The terms and conditions of this new employment arrangement appear to
be in dispute. The plaintiffs stance is that it agreed
to the
continued employment of the defendant as manager of the Middelburg
branch of its business at a salary of R41 666,00 per
month while the
defendant contends that in addition to the monthly salary of R41
666,00 per month it was agreed between himself
and Mr Bothma
representing the plaintiff that the defendant could purchase a
vehicle at company cost and that the instalments in
respect of such
vehicle would form part of his package.
[8]
The defendant in March 2007 purchased a Mercedes Benz E200 and
entered into an installment sale agreement with Daimler Chrysler
Financial Services (Pty) Ltd. The defendant then took steps to put in
place a debit order from the plaintiffs banking account in
respect of
the monthly instalments for the vehicle. The defendant's stance is
that the plaintiff agreed to the purchase of the
vehicle, agreed to
pay the instalments and that he, the defendant, was accordingly
entitled to authorise the debit order against
the banking account of
the plaintiff.
[9]
It is common cause that a total amount of R230 883,83 was debited
against the plaintiffs account in respect of the instalments
for the
motor vehicle purchased by the defendant. Of this amount R190 266,98
was debited during the period of the defendant's employ
with the
plaintiff namely March 2007 to November 2008 while a further amount
of R40 616,85 was debited against the plaintiffs account
in respect
of the period November 2008 to March 2009 when the defendant was no
longer employed by the plaintiff.
[10]
The defendant accepts liability for the payment of the amount of R40
616,85 as these were payments made by the plaintiff after
the
termination of the employment arrangement between the defendant and
the plaintiff.
[11]
The relationship between the plaintiff and the defendant began to
deteriorate in 2008 and by September 2008 the parties had
in
principle reached an agreement to terminate their relationship with
each other. Arising out of this in principle agreement auditors
acting on behalf of the plaintiff prepared an agreement that would
purport to resolve the dispute between the parties and the plaintiff
and the defendant entered into such an agreement on 10 November 2008.
The agreement is entered into between Danie Bothma, the plaintiff
and
the defendant. The preamble to the agreement indicates as follows:
"And whereas the parties wish to resolve all outstanding
issues
between them;" Paragraph 10 of the written agreement provides as
follows:
"10.
Bothma and Kreyveldt respectfully hereby indemnify each other from
further prosecution by each other, or by any of their
known
associates, and/or any other identity (sic) that they are involved in
or have an interest in, with regards to any and/or
claim relating to
Tswane Teledata or any of the entities where they were associated
with each other."
Paragraph
12 of the agreement provides as follows:
12.
This agreement constitutes a full and final settlement of all
disputes between the parties. All parties to this agreement
acknowledge
that this agreement is for the use between these parties
exclusively and is thus confidential."
[12]
The plaintiffs case is that after the agreement was entered into and
the employment arrangement of the defendant was terminated
it
discovered the existence of the debit orders activated against its
account in respect of the motor vehicle purchased by the
plaintiff.
Its position was that the defendant was not authorised to pay for his
private vehicle from the funds of the company
which he controlled by
virtue of his position as managing director and that it, the
plaintiff was accordingly entitled to claim
the refund of all such
monies paid which in its view were not authorised and were paid
illegally.
[13]
The defendant in opposing the relief claimed by the plaintiff has
raised two defences:
(a)
It has filed a special plea in which it takes the stance that the
plaintiff is precluded from seeking the relief it does in
these
proceedings on account of the written agreement of settlement entered
into between the parties. It argues that the written
agreement
constituted a full and final settlement of all disputes between the
parties and to that extent the plaintiff is precluded
from seeking
payment in these proceedings as the dispute that would have existed
in respect of the motor vehicle would have been
incorporated and
included in the settlement agreement of 10 November 2008 entered into
between the parties, (b) On the merits it
contends that the terms and
conditions of the employment agreement entered into between the
plaintiff and the defendant were such
that the defendant was entitled
to receive a monthly allowance in respect of the motor vehicle which
he purchased and had the authority
and the consent of the plaintiff
to activate the relevant debit order against the plaintiffs banking
account for the payment of
such monthly instalments.
The
special plea
[14]
While it is so that the written agreement of settlement purports to
resolve all outstanding issues between the parties and
purports to
constitute a full and final settlement of all disputes between the
parties the plaintiffs stance is that at the time
the agreement was
entered into it was unaware of any dispute with regard to a motor
vehicle. Indeed its stance is that it was unaware
that the defendant
had effected payments for his private motor vehicle from the
company's banking account. On that basis it contends
that whatever
the agreement may purport to say or do it cannot be interpreted as
constituting a settlement of a dispute that it,
the plaintiff, was
unaware of.
[15]
In R H Christie The Law of Contract in South Africa 6th edition 2011
at p473 the learned author in dealing with a compromise
indicates as
follows:
"If
there is no dispute there can be no compromise. ... The onus is on
the party alleging that a compromise has been effected,
and because
compromise is a form of novation and involves the waiver of existing
rights (or claimed rights) it must be as clearly
and unambiguously
proved as any other waiver or novation."
[16]
The plaintiff also relies on the dicta in Be Bop A Lula Manufacturing
and Printing CC v Kingtex Marketing (Pty) Ltd
2006 6 SA 379
(C) where
at p386 the following is said:
"In
this regard it must be borne in mind that compromise are to be
strictly interpreted in that they exclude anything which
was probably
not contemplated by the parties at the time they reached the
compromise."
[17]
It is clear on the facts of the present matter and on the evidence
submitted that the agreement of settlement was prepared
by the
plaintiffs auditor and that the plaintiff and the defendant had very
limited input into the contents and scope of the agreement
themselves.
[18]
From the evidence of both the plaintiff and the defendant there does
not appear to be any indication that the issue of the
motor vehicle
was specifically discussed and resolved and that the parties reached
an agreement that it would be one of the matters
dealt with in their
written agreement.
[19]
That being the case it can hardly be contended that the plaintiff,
whose stance remained that it was unaware of the purchase
of the
motor vehicle, could have entered into an agreement where the vehicle
is not specifically mentioned and where the plaintiff
is then taken
to have agreed to the settlement of a dispute that it was not aware
of.
[20]
Even if the plaintiff was aware of the purchase of the vehicle, the
language of the settlement agreement is such that it would
be
difficult to sustain an argument that the agreement which made no
reference to the vehicle resolved the issue with regard to
the motor
vehicle.
[21]
For these reasons the settlement agreement, while it dealt decisively
with some of the issues in dispute between the parties,
could hardly
be said simply on account of its expansive wording to have included
the settlement of a dispute in respect of the
motor vehicle.
[22]
For these reasons the special plea cannot be sustained and should be
dismissed.
The
merits
[23]
Two witnesses testified in this trial, Mr Bothma on behalf of the
plaintiff and the defendant on his own behalf.
[24]
The issue in dispute between the parties relevant to these
proceedings is essentially whether the employment agreement entered
into between the plaintiff and defendant would have included the
benefit of a motor vehicle for which the defendant would have
been
entitled to activate a debit order against the plaintiffs banking
account.
[25]
This is a classic case where the respective versions of the plaintiff
and defendant, both single witnesses in their own cause,
stand
starkly in contrast to each other. In Stellenbosch Farmers' Winery
Group Ltd and Another v Martell et Cie and Others
2003 1 SA 11
(SCA)
the court provided the following guidance in dealing with versions
that on the face of it were irreconcilable:
"To
come to a conclusion on the disputed issues the court must make
findings on (a) the credibility of the various factual
witnesses, (b)
their reliability, and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular
witness will depend on its
impression of the veracity of the witness. That in turn will depend
on a variety of subsidiary factors
such as (i) the witness' candour
and demeanour in witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions
in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his
own extracurial statements or actions,
(v)
the probability or improbability of particular aspects of his
version, and
(vi)the
calibre and cogency of his performance compared to that of
otherwitnesses testifying about same incident or events. As
to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v), on (i) the opportunities
he had to
experience and observe the event in question and (ii) the quality,
integrity and independence of his recall
thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on
each of the disputedissues.
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine
whether the party burdened with the
onus of proof has succeeded in discharging it. The hard case occurs
when a court's credibility
findings compel it in one direction and
its evaluation of the general probabilities in another. The more
convincing the former,
the less convincing will be the latter. But
when all factors are equipoised, probabilities prevail."
[26]
If one has regard to the testimony of Mr Bothma as well as Mr
Kreyveldt then in my view from the perspective of their credibility
as well as their reliability there is not much criticism that could
be levelled against either of them. The court had the opportunity
to
observe both witnesses during examination and cross-examination and
both of them appeared to answer all questions put to them
honestly,
frankly and to the best of their ability. There was no attempt to
exaggerate any matter and the court's overall impression
of both
witnesses was that they testified honestly and reliably. Their
candour, demeanour and the manner in which they presented
their
respective versions cannot be open to any substantive criticism to
suggest that either of them were not credible or reliable
in their
testimony.
[27]
That being the case the court is compelled to look at the
probabilities with regard to the respective versions presented.
[28]
From the perspective of the defendant's version the defendant's
stance was that following the agreement arrived at between
itself and
the plaintiff it activated the necessary debit order from the banking
account of the plaintiff and that the debit order
operated for the
full duration of the defendant's employ with the plaintiff.
[29]
The plaintiff through both Mr Bothma and the auditor of the plaintiff
had full regular and ongoing access to all the financial
records held
by the defendant at the Middelburg branch of the plaintiffs business
as well as the banking accounts of the branch
that the defendant was
responsible for managing.
[30]
The plaintiff had unlimited and unhindered access to the bank
accounts both physically and via the internet and was able to
observe
all movements on the banking account.
[31]
On this basis the defendant contends that there was no attempt on its
part to disguise any of the payments that it did make
and that if
indeed it was effecting unlawful or unauthorised payments then on the
probabilities it would not have reflected such
payments as openly and
as blatantly as it did as the consequence thereof would have been for
the plaintiff to have picked it up
immediately and have terminated
it.
[32]
Accordingly it is strongly arguable that the manner in which the
payments were effected in an open and transparent manner to
which the
plaintiff had access supports the defendant's version indeed that
such an agreement was arrived at.
[33]
In addition the employment arrangement that originally endured for
twenty four months had come to an end and according to the
undisputed
evidence of the parties the business was doing well. On the
probabilities it can hardly be said to be improbable that
the new
employment arrangement that would include the vehicle allowance would
have been unlikely. Given that the business was doing
well, given
that the plaintiff was reasonably happy with the defendant's
performance and that his salary for the preceding twenty
four months
remained unchanged, it is not inconceivable in my view that the
defendant would have been entitled to higher remuneration
and that
the plaintiff would have agreed to that given both its satisfaction
with the defendant's performance as well as the relatively
good
performance of the business that the defendant was managing.
[34]
These are the probabilities that favour the defendant's version of
events. From the perspective of the plaintiff while his
evidence was
that he had access to the bank account of the business in Middelburg
he had eleven other businesses throughout the
country and would
hardly ever peruse the details of the bank statements that would have
enabled him to pick up the unauthorised
payment.
[35]
While this may be so it was not disputed that the plaintiffs auditor
had regular access to all the financial transactions of
the
Middelburg branch of the plaintiffs business and that the payment for
the motor vehicle would have been reflected openly in
those
transactions as it was on the bank statements.
[36]
That being the case it is in my view improbable that the plaintiff
either through his own actions or that of his accountant
would not
have picked up these payments and had they done so they would have
been in a position to have brought them to an end.
[37]
If indeed it is the plaintiffs case that the defendant acted
unlawfully and without authority then it is highly unlikely and
improbable that the defendant would have acted in such an open and
transparent manner if it was furthering an unlawful agenda.
[38]
For these reasons I am satisfied that on the probabilities the
evidence proves in my view that the employment arrangement entered
into between the plaintiff and the defendant would have included the
payment by the plaintiff of a motor vehicle allowance and
accordingly
when the defendant activated the debit order against the banking
account of the plaintiff it had both the authority
to do so and was
entitled to do so in respect of that particular benefit.
[39]
However it is also common cause in these proceedings that payments
made out of the account beyond 5 November 2008 were for
the
defendant's account and therefore the plaintiff in my view is
entitled to an order in respect of payments totaling R40 616,85.
There is no dispute between the parties on this matter.
[40]
The next issue is the issue of interest and costs in respect of the
amount of R40 616,85. The defendant's stance is that it
should not be
liable for interest or for costs in that it only became aware of the
detail of this amount during the course of the
trial and that despite
various requests made by it to the plaintiff the plaintiff failed to
provide it with bank statements or
any other proof of such amounts
that had become due and payable.
[41]
I am unable to associate myself with this stance. The defendant when
it ended its employment relationship with the plaintiff
would have
been well aware of its own obligations with regard to the motor
vehicle. It was incumbent upon the defendant at that
stage to ensure
that the payments due to Daimler Chrysler were in fact made and in
this regard to suggest that the failure by the
plaintiff to provide
it with details would somehow absolve it from its liability to pay
interest in my view is not tenable. The
defendant in my view should
be liable for the payment of interest on the amount of R40 616,85
calculated from March 2009 to date
of final payment.
Costs
[42]
Defendant has been substantially successful and should be entitled to
its costs, at least to the extent of the proportion of
its success
which is approximately 80%.
Order
[43]
In all the circumstances I make the following order:
1.
Subject to paragraph 2 below, the plaintiffs claim is dismissed.
2.
The defendant is ordered to pay the plaintiff the sum of R40 616,85.
3.The
defendant is ordered to pay interest on the aforesaid amount a
tempore morae from 1 March 2009 until date of final payment.
4.
The plaintiff is ordered to pay 80% of the defendant's costs of the
action.
N
KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
13091-2010
HEARD
ON: 25 APRIL 2012 FOR THE PLAINTIFF: ADV J VORSTER
INSTRUCTED
BY: VAN DER MERWE ATTORNEYS
FOR
THE DEFENDANT: A P BRANDMULLER
INSTRUCTED
BY: BRANDMULLER ATTORNEYS