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[2012] ZAGPPHC 307
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Bokhoni Management Services (Pty) Ltd v Small Enterprise Development Agency and Another (32818/2007) [2012] ZAGPPHC 307 (29 November 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: 32818/2007
DATE:
29 November 2012
IN
THE MATTER BETWEEN:
BOKHONI
MANAGEMENT SERVICES (Pty)
Ltd
...........................................
Plaintiff
and
SMALL
ENTERPRISE DEVELOPMENT AGENCY
…..................................
1
st
Defendant
DAVID
HALE
..........................................................................................................
2nd
Defendant
JUDGMENT
LEDWABA
J:
[1]
The plaintiff [Bokhoni] issued summons against the first defendant
[SEDA] for goods sold and delivered and for professional
IT services
rendered to the SEDA claiming the total amount of R461 005.78 (four
hundred and sixty one thousand and six rand and
seventy eight sent).
Bokhoni further attached some invoices annexures F1 — F11 to
the particulars of claim to support its
claim.
[2]
SEDA is defending the claim and it filed a plea and a counterclaim
against Bokhoni and the second defendant [Mr Hale] jointly
and
severally in the amount of R450 916 (four hundred and fifty thousand
nine hundred and sixteen rand).
[3]
Mr Hale did not attend court and the trial of Bokhoni and SEDA
proceeded in his absence.
[4]
Mr David Johannes Pretorius [Mr Pretorius] testified for the
plaintiff that Bokhoni's relationship with Ntsika started in the
year
2004. Ntsika later operated its business as SEDA. The contact person
or the SEDA s representative was Mr Hale for the deals
between SEDA
and Bokhoni.
[5]
Mr Pretorius described the modus operandi for providing goods to SEDA
as follows:
5.1
Mr Hale would invite Bokhoni to submit a quotation to SEDA by fax or
e-mail or by telephone for the goods sought by SEDA.
5.2
Bokhoni would source prises from its suppliers, add a profit of about
3 - 7 % on the costs and send the quotation to SEDA.
5.3
If the quotation is acceptable. SEDA would place an order and the
goods would be delivered to SEDA or be collected from the
plaintiff
by SEDA's representative. For orders less that R1000 a written order
was not necessary (for example, in respect of goods
reflected in
annexures F9 and F10).
1.1
There would be a reconciliation process aone oy the respective
administration offices in respect of the goods purchased to verify
if
the correct goods were delivered to SEDA. The reconciliation process
was further important to record and manage the warranty
on the goods.
[2]
It is common cause between the parties that since 2005 SEDA paid for
goods ordered and delivered except for items on the invoice
F2, F3.
F4. F5. F7. F8. F9 and F10.
[3]
Mr Pretorius said since he commenced business with SEDA he never
received a complaint concerning goods ordered and delivered
and he
couid not understand why SEDA stopped paying.
[4]
Bokhoni In 2005 had some meeting with Hale regarding for the
provision of the IT services to SEDA. Mr Hale suggested to him
that
the Bokhoni should employ one Gien who would render IT services to
SEDA since the company that Glen worked for would not be
rendering
services to SEDA anymore and SEDA needed Glen's services. Glen would
be stationed at SEDA's premises.
[5]
To sustain the good relationship between SEDA and Bokhoni. he agreed
to accommodate the issue of Glen on the basis that it would
be on
temporary basis that, the plaintiff would not directly employ Glen,
Bokhoni would invoice SEDA for services rendered based
on the job
cards that Glen would provide to Bokhoni for the services that he
would have rendered to SEDA. Bokhoni would charge
R100 on every R300
received from SEDA for services rendered and Hale's company,
Compucompass, would invoice Bokhoni for the balance.
Compucompass
would then pay and manage the monies paid by Bokhoni for Gien.
[6]
Mr Pretorius said Compucompass previously rendered services to the
plaintiff and according to him there was nothing untoward
on the deal
or the arrangement. He also insisted that the transactions should be
above board and be properly documented.
[11]
Despite the arrangement that the plaintiff would only pay or transfer
money to Compucompass after SEDA shall have settled Bokhoni
s
invoices for the services rendered. Glen sometimes insisted that
Bokhoni should pay him before money was received from SEDA,
for
example, on 25 January 2006 Bokhoni invoiced SEDA (inv 828) an amount
of R32 4000 and Bokhoni paid compucompass R23 3000 on
26 January
2006. see the Trial bundle pages 83 and 87 respectively, before SEDA
settled the account.
[12]
Mr Pretorius further said he was of the view that the invoices
submitted for service rendered could be verified by SEDA.
[13]
In March 2006 Bokhoni through Billy Ditshego sent a letter to SEDA
claiming the outstanding payments, it. inter aha. wrote
the
following:
We
ask you to react on the following:
1.
We are entitled to information and we need you to explain to us why
withhold payments till now and more specifically why you
withhold
money for equipment already in use by you1
2.
How are you going to assist or compensate us. for this deliberate
failure to pay your account for items and services you ordered
from
us
3.
Please forward to us your vision and mission statement with reference
to your approach to develop business and support SMME's.
4.
Could you ensure that the full outstanding amount of R461 006 78
(Four hundred and sixty one thousand and six rand and seventy
eight
sent) is paid over to us without delay as nothing of this is in
dispute as far as we are concerned and in the unlikely event
that you
are in disagreement, that we doubt, we ask you to pay the undisputed
amounts or return the equipment in the same state
and packages that
it was delivered in This has to be done within 48 hours as your
failure to pay or communication to us put us
in a difficult financial
position
We
trust that you shall at least now react on our request failing which
we shall be forced to take the matter further (that is so
unnecessary) " See page 146 of the trial bundle.
[7]
SEDA's responded and requested outstanding invoices signed orders
relating to the said invoices and signed delivery notes to
prove
delivery. Bokhom's response was that all documentations are in order
and sent to finance'
[8]
During cross-examination Mr Pretorius conceded that Glen was not an
employee of Bokhoni and that Bokhoni did not render any
services to
SEDA. The plaintiff's counsel, correctly in my view, informed the
court that the plaintiff is no more pursuing claims
for services
rendered in annexure F6 and F11. The plaintiff's claim would be
reduced with an amount of R73 359.00.
[9]
SEDA called one witness Mr GJJ Martins as its witness. He testified
that he was instructed by SEDA's management to investigate
the
relationship between Bokhoni and Mr Hale. He interviewed Mr Hale. He
further said Glen made certain revelations about the conduct
of Mr
Hale and he (Glen) was indemnified for any charges that could be
preferred against him. A forensic investigation was made
by Gobodo
Risk Management.
[10]
He also stated that in January 2006 he was instructed not to make any
payments to Bokhoni.
[11]
He said in his investigation he could not find any notebooks that
Bokhoni alleged were delivered nor could he find any quotations
from
Bokhoni that were accepted by SEDA. I interpose to state that Mr
Pretorius produced the quotations that were sent to SEDA
and they
formed part of the Trial bundle. He further said the purchase orders
were to be issued and be signed by SEDA but he could
not trace any
signed purchase order.
[19]
The payment were done by the finance unit on recommendations of the
procurement unit which means that before Bokhoni was paid
for other
invoices the finance unit and procurement unit checked if the
documents were in order.
[20]
Importantly, he said prior to November 2005 there was no policy or
procurement. The internal policy on procurement which came
into
effect in November 2005 was not communicated to the service
providers.
[21]
Mr Martins further said he was the only person who gave instructions
to SEDA's attorneys of records, in the letter dated 28
July 2002 on
pages 160 -161 of the bundle SEDA’s attorneys stated that SEDA
does not deny liability for the amount claimed
and a set off is
proposed.
[22]
For convenience sake I am going to first deal with Bokhoni s claim of
services rendered, thereafter the claim of goods sold
and delivered
separately and conclude with the counterclaim.
[23] RE: CLAIM FOR SERVICES RENDERED:
As
indicated above the invoices relating to the services rendered are
the following:
Invoice
No 828 (annexure F1) for the amount of R36 936
Invoice
No 836 (annexure F6) for the amount of R35 558
Invoice
No 866 (annexure F11) for the amount of R37 971
Total
R110475
[24]
Bokhoms counsel stated that Bokhoni was no more pursuing claims on
invoices 836 and 866. The only claim I would deal with is
in respect
of invoice 828 for the amount of R36 936. Mr Pretorius said the
reason why Bokhoni is pursuing the claim in respect
of invoice 828 is
because he had paid Compucompass the amount of R23 3000 before it
received the payment from SEDA.
[25]
When Mr Pretorius explained the arrangements between Bokhoni and Mr
Hale on the services to be rendered by Glen to SEDA, he
further said,
in terms of the arrangements. Bokhoni would not deposit any monies
into Compucompass account before SEDA settled
the account(s) for
services rendered.
[26]
It is clear from the evidence of Mr Pretorius that Bokhoni did not
render any services to SEDA. I see no reason why should
SEDA pay
Bokhoni for acting contrary to the arrangement it made with Mr Hale.
Bokhoni should have, in my view, re-claimed the money
from
Compucompass. The claim against SEDA in respect of invoice 828 for
the amount of R36 936 should therefore fail.
[27] RE: CLAIM IN RESPECT OF GOODS
SOLD AND DELIVERED:
The
modus operandi how quotations were sent to SEDA and how orders were
made by SEDA is to some great extend supported by some of
the
documents in the trial bundle.
[28]
SEDA's defence is mainly that it did not authorize Mr Hale to act on
its behalf and that according to its policy the purchase
order had to
be signed
[29]
The alleged policy of signed purchase orders, Mr Martins conceded,
was not made known service providers.
[30]
Mr Pretorius explained in detail how he dealt with Mr Hale. The issue
of signatures on the purchase orders was not a condition
to be
complied with before delivering of the goods ordered could be
delivered. In my view, the fact that purchase orders were not
signed
cannot nullify the plaintiffs claim.
[31]
What exacerbates the defences raised by SEDA is that SEDA could not
show that it only paid Bokhoni in respect of claims where
there were
signed purchase orders and proof of delivery. The fact that other
claims in resoect of goods delivered were paid supports
Bokhoni
allegations that there was an order for goods to be delivered
[32]
The fact that the alleged goods delivered coufd not be found does not
per se means they were not delivered. They could have
been stolen
after delivery.
[33]
SEDA failed to rebut the evidence of Mr Pretorius that the goods were
delivered.
[34]
Mr Pretorius was, in my view, a credible witness and I have no reason
to reject his evidence in respect of the claims based
on invoices
829, 831. 833. 834. 846. 848, 849 and 850. The total amount thereof
being R350 711.78 (three hundred and fifty thousand
seven hundred and
eleven rand and seventy eight sent).
[35]
In my view SEDA failed to show any fraudulent misrepresentation on
the part of Bokhoni.
[36] SEDA’S COUNTERCLAIM
SEDA
filed a counterclaim of R450 916 against Bokhoni and Mr Hale jointly
and severally.
[37]
It was submitted on SEDA's behalf that since SEDA paid Bokhoni the
total amount of R620 916 for services rendered by Glen the
difference
between the amount claimed by Bokhoni and the amount paid by SEDA to
Bokhoni for services rendered justifies SEDA's
counterclaim. That is.
the amount paid to Bokhoni extinguishes Bokhoni’s claim.
[38]
In exhibit 'B' Bokhoni admitted that it received the amount of R413
657.00 in respect of services rendered by Glen, which amount
includes
call-out fees of R20 850 plus VAT which amounts to R50 799.98
[39]
SEDA must prove its counterclaim on the balance of probabilities It
did not call Glen to support its allegations of fraudulent
misrepresentations against Bokhoni or to prove that services were not
rendered.
[40]
Mr Pretorius explained that there was an arrangement that he would be
entitled to about 33% of the amount that would be claimed
for
services rendered by Glen to SEDA for the administration work that
Bokhoni would render. There is no evidence to contradict
his version.
[41]
I am persuaded to accept that Glen did render service otherwise SEDA
would not have paid large sums of monies if there was
nothing to
support that service were not rendered. The least that SEDA could do
was to call Glen to prove that services were not
rendered. I am not
satisfied that SEDA proved its counterclaim on the balance of
probabilities.
[42]
I therefore make the following order:
1.
The first defendant (SEDA) is ordered to pay the plaintiff an amount
of R350 531,78, for goods sold and delivered;
2.
The first defendant is ordered to pay interest on the said amount at
the rate of 15,5% per annum from the date of issue of the
summons to
date of payment.
3.
The first defendant’s counterclaim against the plaintiff is
dismissed with costs.
4.
The defendant to pay the plaintiff’s costs of the action.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 10 October 2012
FOR
THE PLAINTIFF: Adv H M Barnardt
INSTRUCTED
BY: ten Dekker & Associates. Pretoria
FOR
THE FIRST DEFENDANT: Adv K Tsatsawane
INSTRUCTED
BY: The small enterprise development agency. Pretoria