About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 338
|
|
Rantho v Mankoe and Another (4402/07) [2012] ZAGPPHC 338 (14 December 2012)
NOT
REPORTABLE
IN THE HIGH OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
No: 4402/07
DATE:14/12/2012
In
the matter between:
MOTSAMI
PETRUS
RANTHO
.................................................................
PLAINTIFF
AND
MODITI
LUCAS
MANKOE
........................................................................
1ST
DEFENDANT
JOLINA
NANANA
MASHILE
....................................................................
2ND
DEFENDANT
JUDGMENT
RANCHOD
J:
[1]
The plaintiff in this matter instituted a claim against the first and
second defendants for the payment of an amount of R650,000.00
in
terms of a loan agreement.
[2]
The first defendant does not dispute his liability in terms of the
loan agreement, but relies on a counterclaim. Judgment has
already
been entered against the first defendant in separate proceedings
prior to this trial having commenced but the execution
of the
judgment has been suspended pending the decision on the counterclaim
raised by the first defendant.
[3]
Even though judgment has already been entered against the first
defendant, the plaintiff insisted on proceeding with the claim
against the second defendant, having alleged in the pleadings that
there was a written agreement that was entered into with both
the
first and the second defendants.
[4]
The counter claim is based on an alleged agreement in terms of which
certain services were rendered to the plaintiff. It is
alleged that
the first defendant was to calculate the annual increases to which a
close corporation, of which the plaintiff is
a member, would be
entitled to in terms of a tender awarded to the close corporation.
(The first defendant said he had a formula
to do the calculations
which, it was alleged, rendered higher amounts than the calculations
based on the Consumer Price Index (CPI).)
The first defendant alleges
that this agreement was entered into telephonically between himself
and the plaintiff. The plaintiff
denies that a telephonic agreement
was concluded.
[5]
Two pertinent issues have to be decided in this matter. First,
whether a written agreement in terms of which plaintiff loaned
the
first defendant R650,000.00 was also signed by the second defendant
and thus assumed joint liability for repayment of the loan.
A
determination of this issue will determine whether the second
defendant is liable jointly with the first defendant for the amount
as admitted by the first defendant himself. Second, whether the
counterclaim is to be upheld.
[6]
At the commencement of the trial an application for the separation of
the merits and quantum in respect of the counterclaim
was granted. I
was also asked to make a ruling on whether the plaintiff may lead
evidence on both the claim and the counterclaim
in circumstances
where the first defendant had already admitted liability in respect
of the claim. I ruled that the plaintiff may
do so as the liability
of the second defendant remained in dispute. As will be apparent in
what follows, the second defendant’s
defence is intertwined
with that of the first defendant.
[7]
The plaintiff testified that the agreement, titled “Memorandum
of Loan Agreement” was drafted by the first defendant
(who is a
practising attorney) and faxed to him in Kimberley. The second
defendant was to be a party to the agreement in terms
of the draft.
Thereafter he had a meeting with the first defendant, which was also
attended by Mr Tebogo Rakgoale, who was a friend
of both the
plaintiff and first defendant. It is common cause that at this
meeting, the first defendant undertook to take the draft
agreement
back to the second defendant, his wife, in order to obtain her
signature.
[8]
Both the plaintiff and Rakgoale testified that the next day the first
defendant returned with the agreement duly signed by him
and that he
said that the other signature appearing on the document was the
second defendant’s signature. They testified
that the signed
copy was thereafter lost.
[9]
The first defendant, however, testified that the second defendant had
in fact refused to sign the agreement and that he then
went back to
plaintiff and persuaded the him to conclude and oral agreement
between him (the plaintiff) and the first defendant.
The second
defendant was therefore not a party to the agreement. This is then
the crucial factual dispute on the plaintiff’s
claim in
convention: whether the first defendant did return with the agreement
bearing two signatures, and whether he said the
signatures were those
of himself and his wife.
[10]
The second defendant pleaded that she did not receive the loan
amount. This is, in my view in relevant, if she signed the agreement
she is liable to repay. If it is found that she did not sign the
agreement then, absent any oral agreement, she cannot be held
liable.
There is, in any event, evidence that the first defendant and the
second defendant, being husband and wife, would both
have benefited
from the loan, whether directly or indirectly.
[11]
A striking feature of both the defendants’ pleadings and
affidavits resisting summary judgment is that they at no stage
deny
that the loan agreement was signed by them. In response to plaintiffs
allegation that a written agreement was signed by the
parties the
first defendant simply admits having received the loan amount, but
denies that it was also in favour of the second
defendant. There is
no explicit denial of the agreement having been signed.
[12]
The second defendant pleaded as follows:
“
The
second defendant admits to having seen an agreement similar to
annexure ‘POC1’ brought to her by first defendant,
but
denies having received an amount of R650,000 from plaintiff’.
It
is apparent in the case of the second defendant as well that there is
no explicit denial of having signed the agreement.
[13]
In a request for further particulars for trial in terms of Uniform
Rules of Court 21, the plaintiff asked whether the second
defendant
denied having signed the loan agreement. The second plaintiff
responded as follows:
“
The
second defendant did not have any duty to sign the loan agreement
marked annexure ‘POC1’ as she had never spoken
to
plaintiff.”
[14]
It is clearly apparent that the request was not answered and, once
again, there is no denial of having signed the agreement.
[15]
After first and second defendants entered appearance to defend the
plaintiff had applied for summary judgment. In the first
and second
defendants’ affidavits resisting summary judgment, there are
again no denials of having signed the loan agreement.
[16]
Rule 22 of the Uniform Rules of Court, inter-alia, reads:
“
(2)
The defendant shall in his plea either admit or deny or confess and
avoid all the material facts alleged in the combined summons
or
declaration or state which of the said facts are not admitted, and to
what extent, and shall clearly and concisely state all
the material
facts upon which he relies.
(3)
Every allegation of fact in the combined summons or declaration which
is not stated in the plea to be denied or to be admitted,
shall be
deemed to be admitted. If any explanation or qualification of any
denial is necessary, it shall be stated in the plea.”
[17]
Having regard to rule 22, the first and second defendants are deemed
to have admitted that the loan agreement had been signed
by them.
(See Jones and Buckle, The Civil Practice of the Magistrates’
Court in South Africa on rule 19 of the Magistrate’s
Court
Rules for examples of the application of this rule and similar rules
of other courts.)-
[18]
In the circumstances, the first defendant’s evidence that
neither he nor the second defendant signed the loan agreement
falls
to be rejected.
[19]
Apart from this a negative inference can be drawn from the
defendants’ pleadings because of the rather peculiar manner
in
which they pleaded (and in particular how the second defendant
responded to a question whether she denied having signed the
loan
agreement). This negatively affects their credibility. It is clear
from the summons and particulars of claim that the plaintiff
pays he
had lost the signed agreement. The unusual responses of the
defendants in the pleadings in my view justify the inference
that
they were worried that the signed agreement may surface before trial,
in which case a denial of the signatures would have
destroyed their
defence. The defendants were clearly being opportunistic when they
became aware that the plaintiff had lost the
signed copy of the
agreement.
[20]
The first defendant’s version that an oral agreement was
concluded regarding the loan at a second meeting is, in my view,
from
the evidence, improbable. It is not in dispute that the plaintiff was
initially reluctant to advance money to the first defendant.
It is
also clear from the evidence that the plaintiff insisted on some
security, which was to be furnished by the second defendant.
It is
only after the written agreement was faxed to him in Kimberley and in
which the issue of security for the loans was addressed
that the
plaintiff agreed in principle to advance the money. The plaintiff
says he had valuations done on the properties to be
furnished as
security by the second defendant at his own expense. He also engaged
the services of an attorney to check whether
there were any
encumbrances over the properties. He testified that he drove a
considerable distance, from Kimberley to Polokwane
to look at the
properties himself. Under these circumstances, it is in my view
highly improbable that the plaintiff would, after
having gone to all
that trouble, simply have agreed to an oral agreement without any
security. The first defendant’s version
becomes even more
improbable. Bearing in mind that according to his version the second
defendant did not point blank refused to
sign the agreement, but
simply refuse to sign it in the format in which it was presented to
her. It is clear from his evidence
under cross examination that he
could easily have gone back to his office (the first defendant being
as I said, an attorney who
himself had drafted the loan agreement in
the first place) in order to have the agreement amended to a format
which would have
satisfied both the second defendant and the
plaintiff. The first defendant had required the loan urgently. It is
therefore improbable
that he would have returned to the second
meeting without another agreement having been drafted knowing that
the plaintiff had
previously demanded security.
[21]
If one accepts that the unsigned copy of the loan agreement which was
faxed to the plaintiff is a true copy of the original
signed
agreement which is missing, and I accept that it is, then it is
apparent that there is a clause in the agreement that the
money would
be repaid after the sale of one of the second defendant’s
properties before 30 November 2006. However, when giving
evidence,
both first and second defendants testified that there was no sale
being contemplated. From this it would appear clearly
that the first
defendant misrepresented the facts to the plaintiff. When plaintiff’s
Counsel put it to the first defendant
in cross-examination that he
had made a misrepresentation to the plaintiff, he did not deny it.
This too reflects adversely on
the credibility of the first
defendant.
[22]
The plaintiff and Rakgoale testified that the first defendant said he
needed the money because a property of his was at risk
of being
attached. When giving evidence, the first defendant denied it and
said that he had in fact required the money for a project
he was
involved in in Venda. However, his evidence can be safely rejected in
light of his credibility. It is apparent that the
first defendant
impressed upon plaintiff that the money was urgently needed to save
the common home of the first and second defendants
in order to
persuade the plaintiff to make the loan and that the loan was in fact
procured for that purpose. This would have given
the second defendant
ample reason to have become a party to the agreement.
[23]
Whilst giving testimony the first defendant initially said under
cross examination that he had discussed the agreement with
the second
defendant before he faxed it to the plaintiff in Kimberley. He said
the second defendant had agreed in principle with
the agreement
However, when he continued with his testimony on the next court day,
the first defendant contradicted what he had
said earlier and denied
that he had ever spoken to the second defendant about the agreement
until after he had met the plaintiff
in Polokwane. He said it was
only after the meeting with the plaintiff in Polokwane that he had
shown the agreement to the second
defendant. It is highly improbable
that the first defendant would have negotiated an agreement with the
plaintiff in terms of which
the second defendant was to furnish the
properties as security and then tax the agreement to the plaintiff,
without having first
discussed it with the second defendant.
[24]
I turn then to the evidence of the second defendant.
[25]
I said earlier that the second defendant also did not deny in her
pleadings and in the affidavit opposing summary judgment
that she had
signed the agreement. It is in my view incomprehensible why the
defence would be raised that she did not receive the
money, when the
obvious defence would simply have been that she did not sign the
agreement and was not a party to it. It seems
that like the first
defendant, the second defendant also weighed up her options in order
to see whether the signed agreement would
materialise before for the
first time in her evidence at the trial, denying having signed the
agreement. The second defendant also
contradicted her further
particulars in the pleadings, in which she stated that she had
previously agreed that her properties can
be used as security,
whereas she testified in court that she only heard on the evening of
the first meeting that the loan agreement
had been drafted.
[26]
It was put to plaintiff during cross examination that after having
refused to sign the agreement, the second defendant never
heard from
the first defendant about the subsequent discussions with the
plaintiff. It was also put to the plaintiff that the second
defendant
was surprised that the amount of R650,000.00 had been paid to the
first defendant without her knowledge. However, her
oral testimony
contradicts what was put to the plaintiff in cross examination. She
testified that on the evening of what must have
been the second
meeting between plaintiff and first defendant, the first defendant
told her that he had met with his “friends”
and that the
loan was advanced to him. The second defendant’s version that
when she refused to sign, the first defendant
did not even try to
persuade her, is in the light of the history of the matter, the
plaintiff’s insistence on security, and
the first defendant’s
urgent need of the loan, in my view improbable.
[27]The
plaintiff and his witness Rakgoale gave somewhat different versions
of the circumstances in which the signed agreement was
lost. However,
that was not material. I find them to have been truthful witnesses on
the key aspects of the matter and, apart from
the contradiction
around circumstances of the lost document no criticism can be
levelled against their evidence. In my view they
were good witnesses
and their demeanour also could not be faulted in the witness box.
[28]
The first defendant suggests that the plaintiff and Rakgoale
fabricated a version, but he could give no satisfactory explanation
why Rakgoale, formerly the Chief Law Adviser to the Premier’s
Office in the Northern Cape, would be part of such an unlawful
conspiracy and would perjure himself. First defendant merely offered
the explanation that Rakgoale is "closer” to the
plaintiff
than to himself. There is clearly no bad blood between them, and
Rakgoale had in fact assisted the first defendant in
arranging the
loan from the plaintiff in the first instance.
[29]
As far as the contradiction between the plaintiff’s and
Rakgoale’s evidence regarding the circumstances under which
the
signed loan agreement was lost, it is the first defendant’s
version that the two of them fabricated their evidence that
the
agreement was signed and lost. If that was the case, one would have
expected them to have connived beforehand on testifying
as to how and
where the document was lost. In my view, this is an instance where
the contradiction actually supports the conclusion
that they did not
fabricate their evidence.
[30]
In all the circumstances, I accept the plaintiff’s version that
the first defendant presented him with the loan agreement
signed by
himself and that he said that the second defendant had also signed it
and that there was a signature in the space left
for the second
defendant’s signature.
[31]
I turn, then, to the first defendant’s counterclaim.
[32]
The first defendant alleges that a telephonic agreement was concluded
between him and the plaintiff in terms of which he would
do
calculations for annual increases on a tender which had been awarded
by the government to the plaintiff for a 10% commission.
As I said,
the first defendant has pleaded that the commission due to him in
terms of this agreement would be set off against the
amount owed by
him to plaintiff in terms of the loan agreement.
[33]
From plaintiffs evidence it is apparent that he and the first
defendant had, prior to the present dispute between them, a close
relationship which emanated from both of them having been awarded a
tender in 2001 by the Northern Cape government when plaintiff
secured
40% and the first defendant 60% of the tender. He testified further
that that tender was for the period 2001 to 2004. That
tender also
provided for the escalations on a yearly basis, based on the consumer
price index. He said that the first defendant
would do the
calculations for both of them. It was during this time that they
developed a close relationship with each other. He
further testified
that the first defendant could not secure a later new tender of which
he, that is the plaintiff, managed to get
95%. It was at this stage
that the first defendant had handed him a page reflecting how he did
the calculations for the yearly
escalations. He discovered that the
first defendant was not using the CPI but a certain formula which
resulted in the higher amounts
than those based on the CPI.
[34]
Plaintiff testified that the loan agreement was signed in July 2006
by all the parties concerned. The first defendant was to
have paid
the loan amount by November 2006. By December, the first defendant
had not as yet paid the loan and in the meantime the
2005/2006
increment calculations had to be done. Since the first defendant’s
calculations yielded a higher amount than the
CPI calculations and
the plaintiff could not find the first defendant’s formula
which he had given him earlier, he asked
the first defendant to do
the calculations. Plaintiff further testified that the first
defendant did the calculations after he
had sent him all the invoice
copies for 2005/2006 which he had provided to the relevant
departments to whom he provided the security
services in accordance
with the tender. The first defendant informed him several days later
that he will charge 10% of the amount
calculated as his commission
and that he may reduce it to 6%. He told first defendant that since
he had loaned him money free of
interest he was surprised that he
would charge him a commission for doing the calculations. The first
defendant responded by saying
“nothing for nothing”. He
says the first defendant thereafter sent him a one-page agreement in
which it was stated
that the plaintiff owes him 10% for the
calculations and said that he will not provide the plaintiff with the
results of the calculations
unless he signed the agreement. First
defendant thereafter sent him a second copy of the agreement but he
refused to sign it as
well. Plaintiff says he then downloaded the CPI
figures from the Internet and did his own calculations. The various
departments
then paid him according to his own calculations which
amounted to some R4 0000.00. The first defendant had informed him
that his
calculations gave a figure of R5 500 000.00. Plaintiff
further testified that the first defendant never sent him the
calculations
that he had done and he had never seen them. That was
his evidence in chief.
[35]
Under rather lengthy cross-examination the plaintiff stood by his
version that no agreement had been reached between him and
the first
defendant regarding the alleged commission that first defendant was
to charge for performing the calculations. He said
that the first
defendant had raised the 10% commission issue only around January
2007, that is, sometime after the loan became
due. He further
testified that he even told the first defendant that he cannot set
off what a close corporation may owe him against
what he owed him
(the plaintiff) personally.
[36]
In my view, the fact that the government departments paid the
plaintiff the increment based on his own calculations and not
on that
provided by the first defendant confirms the plaintiff’s
evidence that they did not come to any agreement as regards
the
commission.
[37]
The evidence of Rakgoale is important. Rakgoale testified that after
the first defendant defaulted in his obligations to the
pay the loan,
he contacted the first defendant on three separate occasions. The
first time was towards the end of 2006. The first
defendant undertook
to make payment. Rakgoale then contacted the first defendant again
during February 2007. The first defendant
then told him that he was
waiting for a fee with regard to a Road Accident Fund (RAF) matter
and that he would make payment before
the end of February 2007.
Thereafter, he approached the first defendant again at the end of
February 2007. It was at this time
only that the first defendant
stated that as a result of the setoff agreement, he was no longer
indebted to the plaintiff. It was
only during this third conversation
that the first defendant for the first time raised the setoff
agreement. This evidence, that
the first defendant had never before
mentioned the setoff agreement during the first or second telephonic
conversations was not
challenged during cross examination. First
defendant testified that he was the attorney of record for both
defendants, that is,
himself and the second defendant, that he has
experience in trial matters, knows that evidence must be challenged
and he also sat
next to his counsel in Court whilst Rakgoale and the
plaintiff were being cross-examined. Yet he did not challenge the
evidence.
[38]
There is corroboration for Rakgoale’s evidence that the first
defendant had told him that he was waiting for the RAF
fee and that
it was eventually paid to him during March 2007. If Rakgoale
fabricated the evidence in this regard, it would be a
remarkable
coincidence that a RAF fee was in fact on the verge of being paid to
the first defendant. Rakgoale’s evidence
therefore has the ring
of truth about it.
[39]
Given that it was first defendant’s evidence that the setoff
agreement was concluded during or about November 2006, and
the fact
that the first defendant failed to mention the setoff agreement
during the first two conversations with Rakgoale is damning.
The
inevitable inference is that he did not mention it because no such
agreement had been concluded and came as an afterthought.
[40]
The first defendant’s version that the plaintiff repudiated the
setoff agreement is in my view also improbable. The first
defendant
testified that he had informed the plaintiff during January 2007 that
according to his calculations the plaintiff would
be entitled to
payment by the government in the amount of some R8 500 000.00 for
escalations on the tender. The first defendant’s
testimony was
to the effect that his calculations will be higher and that the
plaintiff knew it would be accepted by the government.
The
plaintiff’s calculations that were submitted to the government
at a later stage only yielded some R4 500 000.00. It is
therefore
inconceivable, in my view, that the plaintiff under those
circumstances would repudiate the alleged telephonic agreement.
On
the first defendant’s version, the plaintiff breached the
telephonic agreement in a brazen manner, something which caused
the
plaintiff a loss of some R4 000 000.00. That appears to be highly
improbable.
[41]
Surprisingly, the first defendant testified that he would not have
pursued his claim if the plaintiff did not issue summons
and only
intended to do that as a counterclaim. This is astounding to say the
least as on the first defendant’s evidence
the plaintiff was in
flagrant breach of the telephonic agreement. The first defendant was,
according to himself, entitled to his
commission and he had spent
long hours late into the night doing the calculations. Given that the
first defendant’s alleged
claim or counterclaim was much larger
than the plaintiff’s claim in convention, it is surprising that
the first defendant
says he had always only intended to raise it as a
counterclaim. One would have thought that given the amount of the
counterclaim.
He would have vigorously pursued his claim if he was so
confident that an
agreement
had been concluded with the plaintiff in this regard. In my view, the
first defendant’s version is improbable and
in fact justifies
the inference that no agreement was concluded with the plaintiff. I
say this also in the context that the first
defendant has the onus to
prove his counterclaim. In my view, he has not discharged that onus.
[42]
If, as submitted by the first defendant, that plaintiff had
repudiated the telephonic agreement then he had several options,
none
of which he elected to exercise. He could have ignored the
repudiation and claim specific performance or cancel the agreement
and claim damages. The first defendant did neither. The counterclaim
falls to be dismissed.
[43]
I make the following order:
1.
Judgment is granted against the second defendant, jointly with the
first defendant, for:
1.1
payment of the amount of R650,000.00;
1.2
interest on the amount of R650,000.00 at the rate of 15.5% per annum
as from 30 November 2006 to date of payment;
1.3
costs of suit.
2.
The first defendant’s counterclaim is dismissed with costs.
N
RANCHOD
JUDGE
OF THE HIGH COURT
Parties:
Counsel
for the Applicant: Adv P Van Der Berg
Attorney
for the Applicant: Joubert Attorneys, c/o Sanet De Lange Inc,
Pretoria.
Counsel
for the Defendant: Mankoe Inc , c/o Matabane Inc, Pretoria.
Attorney
for the Defendant: Adv S M Malatji