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2012
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[2012] ZAGPPHC 149
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Visser v De Villiers and Others (A836/2010) [2012] ZAGPPHC 149 (1 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
FULL
BENCH
Case
Number: A836/2010
DATE:01/08/2012
In
the matter between:
ANDRe
STEPHANUS
VISSER
....................................................
APPELLANT
and
JOHAN
DANIeL DE VILLIERS
….................................................
FIRST
RESPONDENT
ANGELIQUE
DE
VILLIERS
...........................................................
SECOND
RESPONDENT
X-PRESS
NET - INLAND (PTY) LTDQ
.........................................
THIRD
RESPONDENT
JUDGMENT
Fabricius
J,
1.
This
is an appeal against the order made by the court a quo in terms of
which the Appellant was ordered to pay to the First and
Second
Respondents an amount of R1, 000 000 together with interest
calculated thereon at the rate of 15.5% p.a. from 10 March 2008
until
the date of payment of the said amount. A cost order was also made
and the Registrar of this court was directed to forward
a copy of
the affidavits and Judgment to the Director of Public Prosecution.
Leave to Appeal was refused but was ultimately granted
by the Supreme
Court of Appeal.
2.
First
and Second Respondents are married, First Respondent is a business
man and Second Respondent an attorney. Appellant is also
a business
man and was the sole director of the Third Respondent. In the motion
proceedings the Respondents herein sought payment
of the mentioned
amount. The relevant facts were that the Respondents entered into a
written agreement with the Third Respondent
in terms of which they
bought a property after they had been introduced thereto by an estate
agent Mr B. Gerardy. He informed them
that the purchase price was
R2,100 000 and that the mentioned amount of R1,000 000 would have to
be paid into the bond account
which the Third Respondent had over the
property. This meant that the particular financial institution in
whose favour a bond was
registered over the said property had to be
paid this amount. The present Respondents had no difficulty with
that, and accordingly
entered into the relevant written agreement. In
terms of this agreement the mentioned amount had to be paid to the
seller directly,
as they put it in the founding affidavit, in other
words, into the bond account of the Third Respondent, whilst the
balance had
to be paid to the conveyancer, and to be dealt with on
registration of the property. They alleged that pursuant to entering
into
the agreement, the Appellant herein provided the said Mr.
Gerardy with the details of the bank account into which the R1, 000
000
had to be paid. They alleged that the Appellant, when providing
the relevant account details to Mr. Gerardy, specifically informed
him that that was the bond account of the present Third Respondent.
Mr. Gerardy confirmed this allegation in a supporting affidavit.
This
allegation was denied by the Appellant herein, who alleged that a
certain Thomas had in fact represented the Third Respondent
herein,
and did all the relevant negotiations. However, the said Thomas made
no affidavit supporting the Appellant. First and Second
Respondents
accordingly made payment of this amount with the name of the
beneficiary being indicated to be the Third Respondent,
namely the
company. They say that Mr. Gerardy and they themselves, at all
relevant times believed that the account number given
to them was in
the name of the Third Respondent i.e. its bond account. None of them
thought or even suspected that the account
provided to them was in
fact the personal money market account of the Appellant. It later
then transpired that the Appellant did
nothing to sign the relevant
documentation to enable transfer of the property to take place into
their name, and accordingly they
sought an order in the Witwaters
rand Local Division of this court, which compelled the Appellant to
sign the necessary documentation.
Such order was granted. Not
withstanding this order the Appellant did not sign the necessary
documentation, and the Sheriff of
the court accordingly did so.
Thereafter it became evident to them that the account number which
have been given to them was in
fact not the bond account of the Third
Respondent, but was the personal bank account of the Appellant. They
had not known that.
The bond holder also then indicated that it would
not cancel the relevant bond prior to the full amount in respect of
such bond
being paid and settled. They accordingly alleged in the
founding affidavit that Appellant had lied to them, and had committed
a
fraud inasmuch as he has provided his own bank account into which
payment was then made. They however also continued to allege in
the
founding affidavit that the payment to Appellant was a payment made
in error, that it was not owing to Appellant at all inasmuch
as they
had no agreement with him, and that he was therefore not entitled to
the receipt of that amount, and accordingly Appellant
had been
unjustly enriched at their expense.
3.
They
also stated that the launching of the mentioned application was not
to be construed as exercising any election on their part
except
insofar as they alleged that they were entitled to repayment of the
said amount.
4.
It
is therefore clear from the founding affidavit that on the one hand
the First and Second Respondents alleged that the Appellant
had
committed a fraud upon them, and on the other hand, had also been
unjustly enriched at their expense. The claim was therefore
based on
two legs i.e. the one being an intentional misrepresentation, and the
other one based on unjust enrichment.
5.
As
I have said, the court a quo granted the relief sought and rejected
the version of the Appellant which related to the involvement
of the
said Thomas, and his assertion that because he was the sole director
of the present Third Respondent, he had been entitled
to receive the
money and to spend it. In that same context he also alleged that the
Third Respondent herein had no banking account
into which to deposit
the funds, and it was for that reason that he had furnished the said
Thomas with details of his private money
market banking account.
However, prior to that he had also alleged that the Third Respondent
had been part of a group of companies
in which he had purchased
shares in, and that such group had wide spread business interests.
Apart from that of course it would
be extremely strange that the
Third Respondent would not have had a bank account whilst a
substantial bond was over the relevant
property which presumably had
to be serviced. In that context nevertheless the Appellant stated
that there had been no restriction
placed upon him to deal with the
moneys paid, and that he was fully entitled to deal with them as he
did. It is again strange,
to say the least, that more then R800 000
of the mentioned deposit was spent on his personal whims, and
certainly not on behalf
of the Third Respondent or the so called
group of companies in which he had an interest.
6.
In
the replying affidavit the Respondents say that it was Appellant who
had provided the said Mr. Gerardy with details of the bank
account,
that it had been represented to him that such account was the bond
account of the Third Respondent, and that they were
at no stage
informed that this account had been the personal account of
Appellant. If they had known that they certainly would
not have made
the payment. Appellant obviously knew that there was a bond over the
relevant property and that the amount owing
to the bank would have to
be settled prior to any transfer. Furthermore, they alleged that
certain details of the account given
to them had been inserted by
Appellant after only the account number had been supplied to Mr.
Gerardy. They had therefore not
been aware that payment was made into
any money market account, and even less into an account of Appellant
himself. These allegations,
as I have said, were confirmed by Mr.
Gerardy. Second Respondent is an Attorney as I have said, and, as she
stated, it would have
been extremely unlikely that she would have
made any payment to Appellant personally in the relevant context.
7.
The
court a quo rejected the version of Appellant, and based its judgment
and order on the basis that Appellant had been guilty
of an
intentional misrepresentation in the said context, and had therefore
committed a fraud upon the First and Second Respondents.
He did not
deal in the judgment with the condictio indebiti, but did make
reference there to when he refused the application for
leave to
appeal.
8.
In
that context I may say that it is trite law that an appeal lies
against the order made by a court and not merely against the
reasons
for its order. See Manana vs King Sabata Dalindyebo Municipality
[2011] 3 All SA 140
at 142 par 3.
9.
During
argument Mr. Coetzee SC on behalf of Appellant submitted that all
parties had intended that payment would be made to the
company, Third
Respondent, and that such payment had in fact been made. Respondents'
counsel
pointed out that there had been no agreement between the mentioned
Respondents and the Appellant at all, and that it was
extremely
unlikely, to put it mildly, that the Respondents had intended to pay
the Appellant personally, and would have paid him
had they known the
true facts. A fraud had therefore been committed upon them and in any
event, the Appellant had been unjustly
enriched at their expense,
inasmuch as he had been paid the relevant amount which was not due to
him on any basis whatsoever. It
is clear from the relevant facts that
the Appellant had made the mentioned misrepresentation intentionally
and that this had caused
the particular Respondents to make the
payment to him. There was obviously no contractual nexus at all
between the First and Second
Respondents and the Appellant, and his
version put before the court a quo was so farfetched, that in my view
the learnerd Acting
Judge had been correct in rejecting it. The well
established principle is that a victim of false representation which
induced it
to enter into a contract or perform in terms of it, is
entitled to restitution. This rule is founded on equitable
considerations.
It would certainly not be just that Appellant receive
money due to the company and then spend it on his own interests
whilst boldly
asserting that there was no bar on him "utilizing
and disposing of those funds as (he) pleased". This entitlement,
as
it was said in the answering affidavit, arose from the fact that
he was the sole director of the company. Then again, as I have
said,
Mr. Coetzee SC was constrained to argue that everyone intended the
money to be paid to the Company. He cannot have it both
ways. See:
Feinstein vs Niggli and Another
1981 (2) SA 684
AD at 700, and North
West Provincial Government vs Tswaing Consulting CC
2007 (4) SA 452
SCA at 457 F-H. The court a quo made no material misdirection either
on the facts or in law, and
in
my view there is no basis on which his order can be challenged.
Accordingly the Appeal is dismissed with costs, such cost to
be on
the scale as between Attorney and own client, having regard to the
conduct of the Appellant which in my view cannot be defended
on any
basis. It was unethical, fraudulent and persisted in. This a Court
should not countenance.
August
2012
Judge
H J Fabricius
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree,
Judge
M F Legodi
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree,
Judge
E M Kubushi
JUDGE
OF THE NORTH GAUTENG HIGH COURT