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[2012] ZAGPPHC 288
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Van Der Merwe v Anastaci Projects (A668/07) [2012] ZAGPPHC 288 (13 November 2012)
REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO: A668/07
DATE:13/11/2012
In
the matter between:
J
C VAN DER
MERWE.
.............................................
Appellant
and
ANASTACI
PROJECTS
..............................................
Respondent
JUDGMENT
TEFFO,
J:
INTRODUCTION
[1]
This appeal emanates from a judgment that was handed down in the
Magistrate’s Court, Pretoria by Mr B L Swart.
[2]
For the sake of convenience I will refer to the parties as referred
to in the court a quo. The appellant was the defendant in
the court a
quo and the respondent was the plaintiff.
[3]
The plaintiff sued the defendant in the court a quo for payment of an
amount of R39 307,56 which was allegedly paid twice in
the mistaken
and reasonable belief that the debt in the aforesaid amount was not
settled by it.
[4]
Judgment was therefore granted in favour of the plaintiff.
[5]The
defendant has now lodged an appeal against this judgment on the
following grounds:
5.1
“D/e agbare landdros gefouteer het deur te bevind dat die blote
feit dat dit gemeensaak is dat die eiser sekere betalings
aan
verweerder gemaak het, terwyl die eiser met ‘n ander entiteit
gekontrakteer het, afdoende bewys van onverskuldigde betaling
is.
5.2
Die agbare landdros gefouteer het deur te bevind dat die eiser se
pleit op die verweerder se teeneis en meer spesifiek die feit
dat
eiser pleit dat hy versoek is om sekere betalings aan verweerder te
maak nie moontlik ‘n basis vir die betalings aan
die verweerder
daar kan stel nie.
5.3
Die agbare landdros gefouteer het deur te bevind dat die appellant
nie prima facie geregtig was om betalings van eiser te ontvang
nie.
5.4
Die agbare landdros het gefouteer deur te bevind dat eiser op die
pieitstukke alleen geregtig was op vonnis."
[6]
The following facts are common cause between the parties:
6.1
On or about 31 January 2003 the plaintiff effected payment of the
amount of R39 307,56 (thirty nine thousand three hundred and
seven
rand fifty six cents) to the defendant for services rendered to it.
6.2
On or about 4 February 2003 in the mistaken belief that the debt was
not yet settled, the plaintiff effected another payment
of R39 307,56
(thirty nine thousand three hundred and seven rand fifty six cents)
to the defendant.
6.3
A letter of demand dated 16 October 2003 was addressed to the
defendant claiming the amount paid on 4 February 2003 back but
despite all this, the defendant refused to repay the aforesaid amount
to the plaintiff.
6.4
The defendant traded as a sole proprietor, namely, Panorama
Construction, which he refers to as J C van der Merwe trading as
Panorama Construction and a close corporation, namely, Panorama Earth
Movers and Civil Construction CC.
6.5
All these entities did hiring and letting out of machines and
construction work.
6.6
They operated from the same premises. They used the same address and
telephone number.
6.7
The defendant was the only member of the close corporation and the
only member of Panorama Construction. He dealt with the day-to-day
activities of both entities.
6.8
Only the defendant testified at the trial court.
6.9
Panorama Earth Movers and Civil Construction CC (the close
corporation) had a different VAT number from Panorama Construction
(the sole proprietor).
[7]
After the plaintiff had issued summons the defendant brought a
counterclaim whereby he disputed the plaintiff’s claim
and
alleged that the plaintiff owed him an amount of R93 916,95 (ninety
three thousand nine hundred and sixteen rand ninety five
cents) for
services rendered at its instance and request. The defendant pleaded
as follows in the counterclaim:
7.1
“Gedurende die tydperk Januarie 2002 tot April 2003, het die
verweerder grondverskuiwingswerke vir en ten behoewe aan
die Eiser
gedoen en masjiene aan die Eiser beskikbaar gestel, op die Eiser se
uitsiuitlike aandrag en versoek.
7.2
Die totale bedrag wat deur die Eiser aan die Verweerder verskuldig
is, beloop R693 496,39, waarvan die uitstaande bafans R93
916,95
beloop.
7.3
Die balans van R93 916,95 wat die Eiser aan die Verweerder verskuldig
is, is reeds opeisbaar en betaalbaar."
[8]
In its plea to the defendant’s counterclaim the plaintiff
pleaded as follows:
8.1
“Die Eiser ontken dat die Verweerder gedurende die tydperk
Januarie 2002 tot April 2003 grondverskuiwingswerke vir en
ten
behoewe van die Eiser gedoen en masjiene aan die Eiser beskikbaar
gestel het.
8.2
Die Eiser voer aan dat daar met Panorama Earth Movers and Civil
Construction CC, Registrasienommer 1996/004416/23, ooreengekom
is vir
grondverskuiwingswerke wat ten behoewe van die Eiser gedoen moes word
en masjiene wat aan die Eiser beskikbaar gestel moes
word.
8.3
Die Eiser voer verder aan dat sekere betalings aan Panorama Earth
Movers and Civil Construction CC op versoek van laasgenoemde
gedeponeer is in die rekening van die Verweerder handeldrywende as
Panorama Construction.
8.4
Eiser pleit verder dat daar met Panorama Earth Movers and Civil
Construction CC ooreengekom is dat die vergoeding vir die dienste
en
toerusting deur laasgenoemde beskikbaar gestel, bereken sou word teen
‘n ooreengekome uurtarief bereken op die aantal
ure wat die
dienste en toerusting beskikbaar gestel is.
8.5
Eiser pleit verder dat die fakture wat deur Panorama Earth Movers and
Civil Construction CC and deur die Verweerder namens Panorama
Earth
Movers and Civil Construction CC gelewer is nie korrek is nie met
betrekking tot die ure waarvoor die dienste en toerusting
beskikbaar
gestel is.
8.6
Van die toerusting wat deur of namens Panorama Earth Movers and Civil
Construction CC beskikbaar gestel is, was van tyd tot
tyd
buitewerking en die Eiser volgens ooreenkoms tussen die partye nie
aanspreeklik vir betaling vir die huur van daardie toerusting,
solank
dit buitewerking was nie.
8.7
Die Eiser en Panorama Earth Movers and Civil Construction CC het die
fakture rekonsilieer en laasgenoemde is ten voile betaal
vir die
dienste en toerusting wat beskikbaar gestel is ”
[9]
The plaintiff maintained throughout the pleadings that the defendant
is not entitled to payment of the amount of R39 307,56
that was
erroneously paid to him and neither is he entitled to set it off
against other payments that he allegedly contend are
due and payable
to him.
[10]
It clearly points out in its plea to the defendant’s
counterclaim that it cannot be held liable in these proceedings
between it and the defendant in his personal capacity as it never
entered into a contract for services rendered as alleged by the
defendant with the defendant in his personal capacity. According to
the plaintiff the contract referred to by the defendant in
the
counterclaim was entered into between the plaintiff and the close
corporation.
[11]
On the other hand the defendant contends that he is entitled to keep
the amount paid by the plaintiff to him because the plaintiff
still
owes him an amount of R93 916.95 which is in excess of what the
plaintiff is re-claiming and that he is entitled to set it
off
against the amount that is due and payable to him by the plaintiff.
[12]
The court a quo had to decide with whom did the plaintiff contract
with regard to the allegations raised in the counterclaim.
[13]
At the commencement of the trial the parties agreed that the
abovementioned issue was the issue for determination by the trial
court and that should the court find that the plaintiff contracted
with the close corporation with regard to the allegations made
in the
counterclaim, the counterclaim would then fall to be dismissed and
the plaintiff would succeed with its claim.
The
parties further agreed that the defendant bore the onus of
establishing his relationship with the plaintiff in respect of the
counterclaim.
[14]
The defendant adduced evidence to the effect that the plaintiff knew
when it contracted with him that it was contracting with
Mr J C van
der Merwe trading as Panorama Construction. He started this business
in the 1980’s and traded as J C van der Merwe
Panorama
Construction. This business owns land sliding machines which it rents
out to other people. He is also the only member
of the close
corporation. This close corporation also performed construction work
and rented out its machines to other people.
Initially he had a
partner in the close corporation. The business did not do well and in
a short space of time the partner left
him in the business. The close
corporation went down slowly and he concentrated more in Panorama
Construction. In 2002 all the
work went to Panorama Construction.
[15]
He maintained that at the time he traded with the plaintiff he
operated under the name Panorama Construction. He did land sliding
work and rented the machines to the plaintiff.
[16]
He referred to a purchase order from the plaintiff addressed to
“Panorama Attention Johan van der Merwe" and emphasised
that it was not addressed to the close corporation but to Panorama
Johan van der Merwe. The plaintiff contacted him for work. Before
he
did business with the plaintiff, he knew Mr Vaugh Sanders who worked
for the plaintiff. Mr Saunders knew him as Panorama Construction
and
not as the close corporation.
[17]
Under cross-examination he testified that he hired out machines to
the plaintiff for construction work. He also conceded that
he did
earthwork and construction work for the plaintiff. When people call
his business, they do not only speak of Panorama but
also J C van der
Merwe. Him and Panorama is one and the same thing. He ran both
businesses, namely, the sole proprietor and the
close corporation
interchangeably. The close corporation had a number of directors in
the business but at the time he did business
or work for the
plaintiff those directors had already left.
[18]
He conceded that the purchase order from the plaintiff was not
addressed to Panorama trading as J C van der Merwe but to Panorama
attention J C van der Merwe. After the plaintiff had sent out a
purchase order referred to above to Panorama, invoices were issued
by
the close corporation to the plaintiff with the close corporation’s
VAT number. When the defendant was shown all the five
invoices he
could not comment on what was written on the invoices and the fact
that all of them were issued by the close corporation.
He maintained
that he did not issue them. When asked whether he remembered the VAT
number of the close corporation his response
was that it is not
possible for him to remember it. Although he testified that he
started the close corporation in 1996, he could
not say when did its
directors resign.
[19]
It became clear from the evidence that the close corporation only
operated for 6 years and all its work went to the sole proprietor.
It
also became clear that both businesses did the renting out of the
equipments and construction work simultaneously and the defendant
was
the only member behind all these. The close corporation hired out
equipments for construction work from the sole proprietor
and in turn
sub-let them to other clients where necessary. In that case the close
corporation would issue an invoice to the client
with its own VAT
number and in exchange thereof the sole proprietor would also give an
invoice to the close corporation. The close
corporation would then
claim VAT on the invoice that the sole proprietor had issued to it.
He could not tell how that worked as
all this was done by the
auditors of the business and not him.
[20]
The defendant had problems with SARS with regard to the payment of
VAT and this resulted in him opening another bank account
where the
plaintiff was requested to pay amounts due and payable to the
defendant at the time SARS was looking at the matter.
[21]
A purchase order from the plaintiff was sent to Panorama Attention J
C van der Merwe in 2002. The defendant conceded that
Panorama can
either be the sole proprietor or the close corporation. Invoices were
issued, viz, No. 30/35, 30/32, 30/39, 30/38
to name a few, by the
close corporation to the plaintiff. The defendant did not comment
when he was told that the fact that the
purchase order was issued by
the plaintiff to Panorama in February 2002 and followed by a number
of invoices referred to above
issued by the close corporation with
its VAT number for the work the close corporation performed at the
request of the plaintiff,
shows that the plaintiff and the close
corporation contracted with each other. All what he said was that he
suspects that there
could have been mistakes on the invoices. He was
also not aware of an account number that belongs to the close
corporation.
[22]
In Levin v Drieprok Properties (Pty) Ltd
1975 (2) SA 397
the
appellant had through the instrumentality of a member of a firm of
estate agents, one D, signed a written offer to purchase
certain
immovable property which had been placed before him by D. The
appellant also signed a deed of sale in blank. At the time
when these
documents were signed by the appellant, D was uncertain as to whether
the property was owned by W personally or by a
company in which he
had interest. D discussed the possibility of a company being the
owner and it was agreed between him and the
appellant that in that
event the property would be purchased by a company to be formed, and
a suitable clause had been inserted
in the offer to purchase to make
provision therefor. D then inserted W’s name in the offer to
purchase as the owner and it
was in that form that the appellant had
signed it. In actual fact the registered owner was the respondent
company in which W had
a 50% interest and of which he was a director.
On discovering the true position, D took the offer to purchase to W
after adding
after his name the words “as director of
respondent company", and W signed it in that form. D then
telephoned the appellant
to inform him that the seller was a company.
At the time the appellant had signed the offer he had also handed a
cheque of R2 000,00
as a deposit provided for in the offer to
purchase. This cheque was handed to W and paid out. After some time
the agreement alleged
to exist between the appellant and the
respondent was cancelled on the ground of the appellant’s
default. Appellant thereupon
demanded repayment of the R2 000,00.
This was refused and in an action for payment thereof, absolution
from the instance had been
granted in a local division the reason
being that the offer to purchase read as a whole meant and was
intended to mean that the
offer might effectively be accepted by the
owner, whether or not he be W. In an appeal the appellant raised the
following issues:
1.
that the offer had been made to W personally;
2.
that this offer had not been accepted by W in his personal capacity;
3.
that neither D nor anyone else had authority to alter the offer and
convert it into one made to the respondent company;
4.
that the offer was not made to, and therefore not acceptable by the
respondent;
5.
that consequently the respondent’s purported acceptance of the
offer had not brought the contract into existence: and
6.
that accordingly, no valid excuse existed for the payment of the
deposit or for its retention by the respondent.
The
Appeal Court held that the offer as originally subscribed by the
appellant had not been open for acceptance by the respondent
company.
It also held
that
the alterations made to the offer which converted it into one
apparently open for acceptance by the respondent, could not be
said
to have been authorised by the appellant nor had the appellant been
shown to have subsequently ratified the alterations. The
court
further held that insofar as the respondent sought to rely on any
tacit acceptance by the appellant of what really amounted
to an offer
by respondent in the light of the alterations made, that any
resulting contract would offend against section 1 of Act
68 of 1957
and be null and void in that acceptance by the appellant was not in
writing and signed by the appellant. The court then
came to the
conclusion that no valid contract of sale upon the basis of the offer
of purchase and the deed of sale, was ever concluded
by the parties
and that there was no causa for the payment of the deposit and the
appellant became entitled to repayment.
[23]
Corbett JA in Levin v Drieprok Properties (Pty) Ltd said the
following:
It
is a cardinal principle of the law of contract that a simple
contractual offer made to a specific person can be accepted only
by
that person; and that consequently, a purported acceptance by some
other person is ineffective and does not bring about the
conclusion
of the contract."
[24]
Schreiner JA in Hersch v Nel
1948 (3) SA 686
(A) at 692 made the
following remarks:
In
the majority of cases an offer made by A to B is intended by A to be
open to acceptance by B and by no-one else, but there is
no notional
or juristic obstacle to an offer addressed to B being acceptable by
C, it is simply a matter of interpretation of the
offer." (Bird
v Summerville
1961 (3) SA 194
(A) 202-203, Baker v Crowie
1962 (2) SA
48
(N) 52- 53, Hill v Faiga
1964 (4) SA 594
(W) 596.
[25]
It is clear from the evidence that at the time the defendant did
business with the plaintiff he operated as the close corporation
and
the sole proprietor. All these two businesses were referred to as
Panorama. For an example the close corporation was referred
to as
Panorama Earth Movers and Civil Construction CC and the sole
proprietor was referred to as Panorama Construction. In his
evidence
the defendant testified that him and Panorama are one and the same
thing. The evidence also revealed that the two businesses,
namely,
the close corporation and the sole proprietor performed construction
work and rented machines at the same time. The defendant
conceded
that he did construction work and rented machines to the plaintiff.
[26]
This contract that the defendant alleges was entered into with the
plaintiff was not reduced to writing. The court a quo relied
upon the
documents, correspondence exchanged between the parties and the
defendant’s evidence to make its findings.
[27]
The defendant ran the two entities alone. He was the only member of
the close corporation. He was also the sole owner of Panorama
Construction. These businesses were operating at the same premises
and were using the same addresses and telephone numbers. When
orders
were placed, the defendant was the only person to be contacted.
[28]
The purchase order that was made by the plaintiff was addressed to
Panorama “Attention Mr Van der Merwe”. The defendant
conceded under cross-examination that the purchase order was not
addressed to J C van der
Merwe
trading as Panorama. After this purchase order was sent to Panorama,
invoices were issued. It is clear from the evidence that
all the five
invoices referred to were issued by the close corporation to the
plaintiff. They were not issued by the sole proprietor.
If indeed the
plaintiff or its representative knew that it was trading with the
defendant in his personal capacity, why would they
sent the purchase
order to Panorama “Attention Mr Van der Merwen and not to Mr
Van der Merwe trading as Panorama Construction.
[29]
The plaintiff received invoices from the close corporation and
according to it payments were due and payable to the close
corporation.
[30]
According to the defendant at the time he did work for the plaintiff,
the close corporation was no longer in existence. If
that was the
case why would the plaintiff receive invoices from the close
corporation? The defendant maintained that he did not
do the books of
the business himself. They were done by the auditors and that the
issue of the invoices to the plaintiff by the
close corporation was a
mistake.
[31]
It is common cause between the parties that at some stage in the
process because of the problems that the defendant had with
SARS a
new account was opened and the plaintiff was requested by the
defendant to deposit money for the work done into that account.
[32]
It is also common cause between the parties that there was a double
payment of an amount of R39 307,56 to the defendant made
by the
plaintiff.
[33]
According to the defendant the plaintiff is not entitled to a refund
of the amount erroneously paid to him because it owes
him an amount
in excess of that amount. The plaintiff contends that the defendant
is not entitled to keep that amount because the
work that the
defendant alleges that he has done to the plaintiff in respect of
which he claims that the plaintiff owes him more
money, was not done
by the defendant in his personal capacity. It contends that for that
work referred to above it concluded a
contract with the close
corporation and not with the defendant in his personal capacity.
[34]
When the purchase order was sent to Panorama “Attention Mr Van
der Men/ve”, it was addressed to Panorama as a business
and not
to the defendant in his personal capacity. It is confusing and
misleading for the defendant who knew that he was running
the two
entities interchangeably to say him and Panorama are one and the same
person. It is common cause that Panorama refers to
the two entities,
viz, the close corporation and the sole proprietor. When this
purchase order was sent to Panorama it was open
for acceptance by
either the close corporation or the sole proprietor (Levin v Dieprok
Properties (Pty) Ltd).The defendant as the
only member of both
business entities chose to accept the offer on behalf of the close
corporation because the invoices which were
issued as a result of the
purchase order were issued in the name of the close corporation. The
defendant knew how his business
operations were conducted. If indeed
the close corporation had ceased to exist at the time, he should have
told the plaintiff to
send the correct purchase order in his own
name. As he regards himself and Panorama as one and the same thing,
how would entities
like the plaintiff know that they are trading with
him as a sole proprietor, or him in a personal capacity and/or as a
close corporation
if he himself does not inform them. All the
invoices that were sent to the plaintiff came from the business, the
close corporation,
that was run by the defendant himself. The
auditors worked for him and took instructions from him. He cannot run
away from his
responsibility and say they made a mistake. Sight
should not be lost that he conceded under cross- examination that his
books and
transactions were mixed at the time he did business with
the plaintiff.
[35]
I agree with the court a quo’s finding that the fact that the
plaintiff deposited monies for the services rendered into
an account
number furnished by the defendant at his request, does not change the
fact that the plaintiff entered into a contract
with the close
corporation.
[36]
An issue was raised during argument that the plaintiff should have
testified to explain to the court with whom did it contract.
Further
that the evidence of the defendant was not challenged and that the
court a quo made a finding that the defendant was an
honest and
sincere witness.
[37]
From a reading of the record I find that the evidence of the
defendant was destroyed during cross-examination. After the plaintiff
had sued the defendant for repayment of the amount paid erroneously
to him, the defendant brought a counterclaim. The plaintiff
pleaded
to the defendant’s counterclaim that it contracted with the
close corporation. The onus was therefore on the defendant
to prove
the agreement on which he relies upon with regard to the
counterclaim. I have already dealt with the evidence and it is
my
view that the defendant’s evidence was not supported by the
documents filed and relied upon at the court a quo, viz, the
invoices
and the purchase order from the plaintiff. His contention that he
contracted with the plaintiff himself was not supported
at all by the
evidence led and that is why he ended up saying that it was a mistake
to send the invoices to the plaintiff in the
name of close
corporation. Even though the court a quo found that the defendant was
honest and that there was nothing wrong with
his evidence, the
defendant failed to discharge his onus on a balance of probabilities.
[38]
I therefore do not find any reasons to interfere with the decision of
the court a quo.
[39]
In the result I make the following orders:
39.1
The appeal is dismissed with costs.
MJ
TEFFO
JUDGE OF THE NORTH GAUTENG HIGH COURT,
PRETORIA
K E MATOJANE
JUDGE
OF THE NORTH GAUTENG HIGH COURT, PRETORIA
FOR
THE APPELLANT: J C VAN DER BERG
INSTRUCTED
BY:MARIUS COERTZE ATTORNEYS
FOR
THE RESPONDENT:J C SMIT
INSTRUCTED
BY: VAN DER MERWE DU TOIT INC
DATE
OF HEARING: 22 MAY 2012
DATE
OF JUDGMENT: 13 NOVEMBER 2012