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[2012] ZAGPPHC 305
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Forensic Restitution (Pty) Ltd v Kwinana and Associates (Gauteng) Inc (10069/2010) [2012] ZAGPPHC 305 (29 November 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE NO: 10069/2010
DATE:29/11/2012
In
the matter between:
FORENSIC
RESTITUTION (PTY)
LTD
..................................................................
PLAINTIFF
(Registration
Number: 2002/025528/07)
and
KWINANA
AND ASSOCIATES (GAUTENG)
INC
...............................................
DEFENDANT
(Registration
Number: 2004/003961/21)
JUDGMENT
KUBUSHI, J
[1]
This is a claim by the plaintiff against the defendant for payment of
an amount of R1 628 285.37 being for professional services
rendered
by the plaintiff on behalf of the defendant to the office of the
Compensation Commissioner (the Commissioner) relating
to the forensic
investigations commissioned in that office.
[
2]
The plaintiff issued certain invoices to the defendant for work
already performed. The defendant paid some of the invoices but
is
refusing to pay the remaining ones. As a result of a dispute that
arose between the plaintiff and one of its employees who was
involved
in this project, the defendant paid part of certain of the amounts
claimed by the plaintiff into its attorneys trust account.
[3]
At the commencement of the hearing I was informed by the parties’
counsel that the plaintiff had initially instituted
action against
the defendant by way of motion proceedings on the same cause of
action for the same amount as claimed in this action.
And that on the
3 September 2010, Ranchod J, handed down judgment in that matter. In
that judgment, the court concluded that the
applicant (the plaintiff
in this matter) succeeded to establish that the respondent (the
defendant in this matter) was the party
it contracted with.
[4]
The court found, that the plaintiff has substantially succeeded in so
far as the claims relating to the amounts that the defendant
had paid
into its attorneys’ trust account. It ordered the defendant to
pay the said amounts together with interest thereon
to the plaintiff.
However, the claim in respect of the difference between the amounts
the plaintiff invoiced to the defendant and
the amounts the court
ordered the defendant to pay to the plaintiff remained in issue. And
the court referred it to trial for determination.
[5]
Finally the court issued the following order:
I)
it granted judgment in favour of the plaintiff against the
defendant, in respect of the claims wherein the defendant had paid
part of the invoiced amounts to its attorneys, for an aggregate
amount R819 218.25 together with interest thereon at the rate
of
15.5% to be calculated from different dates stipulated in the order
until date of final payment;
ii)
it referred the balance of the plaintiff’s claim against the
defendant to trial with specific direction that the plaintiff
file
its declaration within 30 days from the date of the order, the Rules
of Court to apply thereafter to the exchange of further
pleadings
and processes in respect of the matter; and
iii)
It ordered the defendant to pay the costs of the application.
[6]
The parties informed me further that pursuant to that judgment, on 27
September 2010, the defendant applied and was granted
leave on 28
November 2010, to appeal the judgment of 3 September 2010. The
defendant filed its notice of appeal on the 21 December
2010. On 17
March 2011, the parties, in disregard to Ranchod J’s judgment,
agreed between themselves, that the appeal proceedings
be
discontinued and the whole matter, including the claims decided by
Ranchod J, be referred to the trial court for determination.
It is on
this basis that the matter is before me on the same issues - cause of
action and amount claimed.
[7]
My view is that this was an improper procedure to follow. A judgment
of a court cannot be set aside by agreement between the
parties. It
can only be set aside by a court of competent jurisdiction on appeal
or review. See EX PARTE NAUDE
1964 (1) SA 763
(D & CLD) at 764F.
[8]
The general rule is that an order of a court of law stands until set
aside by a court of competent jurisdiction and until that
is done a
court order must be obeyed even if it is erroneous. It is an
important principle of our law that once judgment has been
delivered
it is regarded as final and cannot again be enquired into. It becomes
res judicata and creates rights between the litigants.
After
pronouncing an accurately drawn up judgment a court becomes functus
officio as well. Its jurisdiction in the case is fully
and finally
exercised and its authority over the subject-matter ceases. It can as
a result, not alter, supplement, amend or correct
that judgment. See
MEC FOR ECONOMIC AFFAIRS, ENVIRONMENT AND TOURISM v KRUISENGA
2008
(6) SA 264
at paras [25] - [28] and CLIPSAL AUSTRALIA PTY LTD v GAP
DISTRIBUTORS (PTY) LTD
2009 (3) SA 305
at 312G - H.
[9]
The following facts are common cause in this instance, namely, that
the parties cited in the application proceedings are substantially
the same parties as cited in the matter that is before me; that the
issues raised by the applicant and the defence raised by the
defendant in its opposing affidavit in that application proceedings
are substantially the same issues raised in the declaration
by the
plaintiff and the defence raised in the defendant’s plea that
are before me in this matter; and that Ranchod J deliberated
on those
issues and granted judgment in respect thereof.
[10]
The judgment of the court of 3 September 2010, is, in my view, clear,
unambiguous and final and I am, therefore, not competent
to make an
order that can nullify the effect thereof. The judgment can only be
set aside or altered by a court of competent jurisdiction
on appeal
or review and must as such stand.
[11]
The claims that were referred to trial are, as already stated, in
respect of the amount that is the difference between the
amounts the
plaintiff invoiced to the defendant and the amounts the court
ordered
the defendant to pay to the plaintiff. And it relates to the
following invoices: 1276, 1277, 1282 and 1287. The dispute
herein is
in regard to the rates to be charged and discounts to be applied. The
main issue is whether a discount of 25% is applicable
or not. There
are also two invoices: 1314 and 1315 which according to the plaintiff
have not been paid at all. These six invoices
are in respect of the
claims that I must deal with in this matter.
[12]
The plaintiff claimed the following invoices in the Notice of Motion:
DATE
I
NVOICE
NUMBER
Amount
30/09/09
1314
R
58 144.56
30/09/09
1315
R106
317.54
30/10/09
1276
R226
645.68
30/11/09
1277
R707
744.49
30/12/09
1282
R449
046.00
30/12/09
1287
R
80 387.10
R1
628 285.37
The
remaining balances after the judgment of 3 September 2010 are made up
as follows:
Date
invoice
Amount
30/09/09
1314
R
58 144.56
30/09/09
1315
R106
317.54
30/10/09
1276
R226
645.68
30/11/09
1277
R707
744.49
30/12/09
1282
R449
046.00
30/12/09
1287
R
80 387.10
Payments
Balance
R
58 144.56
R106
317.54
R
16 758.00
R209
887.68
R475
593.75
><
r a —7
4
R246
838.50
R202
207.50
R
80 028.00
R
359.10
R809
067.12
R1
628 285.37
[13] At the hearing of the case the
plaintiff led the evidence of a single witness, its sole director
David Michael Oswald. Its
evidence is that its director, Oswald, did
not discuss the rates directly with the defendant but through Frik
Kitching who was
its employee. Kitching then discussed the rates with
him. The rates agreed upon by the parties were as per the prevailing
rates
of the Auditor General less 10%. The further information he
received from Frik Kitching and confirmed by a director of the
defendant,
Ms Kwinana was that the Commissioner has negotiated a
further once off discount of 25 %. This discount came through the
second
payment the plaintiff received from the defendant. He
confirmed that it was normal that in a sub-contracting contract that
a discount
is used. Frik Kitching did not inform him about further
25% discounts for the other months as such he did not know about
those
discounts. And if Frik Kitching negotiated and agreed with the
defendant about these further discounts of 25%, he was not authorised
by the plaintiff to do so and he therefore acted to the prejudice
plaintiff.
[14
When the invoices were submitted to the plaintiff with the incorrect
calculation, a complaint was lodged with the defendant
through Tendai
Mapenda an employee of the defendant who has always communicated with
plaintiff on this account. The invoices with
the incorrect amounts
(lower rates) were sent to the defendant by Frik Kitching who used
the wrong rates that included the 25%
discount that was never agreed
upon.
[15]
In its particulars of claim the plaintiff alleged that the parties
were agreed as to the rate payable to it in respect of the
services
rendered to the defendant by its relevant employees and
sub-contractors. The plaintiff rendered certain invoices to the
defendant based on the rate agreed and the time sheets of the said
employees and the sub-contractors. The defendant paid some of
the
invoices but refuses and/or neglects to pay the remaining invoices.
[16]
The defendant’s plea is that it did not receive invoice number
1314 and 1315 and that the amounts in invoice 1277, 1276,
1282 and
1287 were incorrectly calculated by the plaintiff and as such do not
reflect the correct amounts. It pleaded also that
it was an express
term of the agreement that a discount of 25% will be given to the
defendant for the work done in October, November
and December 2009
months.
[17]
At the close of the plaintiff’s case I had to determine whether
the plaintiff had made out a prima facie case in respect
of these
claims.
[18]
It is trite that absolution should not be granted at the end of the
plaintiffs evidence except in very clear cases. A plaintiff
has to
make out a prima facie case in the sense that there is evidence
relating to all the elements of the claim - to survive absolution,
because without such evidence no court could find for the plaintiff.
It
must be assumed that in the absence of very special considerations,
such as the inherent unacceptability of the evidence adduced,
the
evidence is true. Questions of credibility should not normally be
investigated until the court has heard all the evidence which
both
sides have to offer. See GORDON LLOYD PAGE & ASSOCIATES v RIVIERA
2001 (1) SA 88
(SCA) at paras [2]; DE KLERK v ABSA BANK LTD
2003 (4)
SA 315
(SCA) at 323 par [10] and D T ZEFFERTT & A P PAIZES: THE
SA LAW OF EVIDENCE 2nd ed p179.
[19]
In his address, the defendant’s counsel contended that the onus
was on the plaintiff to prove that there was no 25% discounts
agreement between the plaintiff and the defendant and that the
plaintiff failed to discharge that onus. She based this contention
mainly on the prevarication by the plaintiff’s witness when
answering questions about the discount.
[20]
In this instance, my view is that the plaintiff has made out a prima
facie case to which the defendant has to answer. As stated
in THE SA
LAW OF EVIDENCE above, contradictions are not a basis for absolution.
I therefore did not go into questions of credibility,
leaving them
out until all the evidence from both sides has been heard.
[21]
There is evidence, in my view, in this instance, which remains
unchallenged at this stage, namely, that the parties had agreed
to a
particular rate, that is, the Auditor General’s rate less 10%;
and further evidence that the discount of 25 % was never
agreed upon
and that if Frik Kitching had negotiated such a discount he had no
authority as an employee of the plaintiff to do
so. These are
allegations, which, to me, deserve an answer from the defendant.
[22]
I therefore as a result make the following order:
i)The
judgment of the 3 September 2010 is final and cannot be nullified.
ii)
Absolution from the instance is refused in respect of the claims
referred to trial.
iii)
Costs are reserved for adjudication at the main trial.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
HEARD
ON THE : 17 AUGUST 2012
DATE
OF JUDGMENT : 29 NOVEMEBR 2012
PLAINTIFF’S
REPRESENTATIVE : MR W. VAN NIEKERK
PLAINTIFF’S
ATTORNEY : WAYNE VAN NIEKERK INC
C/O
BERNHARD VAN DER HOVEN
DEFENDANT’S
REPRESENTATIVE : MS L. MBANJWE
DEFENDANT’S
ATTORNEY : L MBANJWE INCORPORATED