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2012
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[2012] ZAFSHC 115
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Dula O Lebelletse Funeral Parlour CC and Others v Medpark Financial Services (A1/12, A2/12, A3/12, A4/12) [2012] ZAFSHC 115 (14 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A1/12
Appeal No.: A2/12
Appeal No.: A3/12
Appeal No.: A4/12
In the appeals between:-
DULA O LEBELLETSE
FUNERAL PARLOUR CC
….........
1
st
Appellant
KEGONAME DORAH
LEHARE
…......................................
2
nd
Appellant
LESIAMO JAFTA
LEHARE
….............................................
3
rd
Appellant
JAFTA & DORA’S
CC
….....................................................
4
th
Appellant
LEHARE CAFÉ
& RESTURANT CC
…...............................
5
th
Appellant
and
MEDPRAK FINANCIAL
SERVICES
….................................
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
MOCUMIE, J
_____________________________________________________
HEARD ON:
4
JUNE 2012
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
14 JUNE 2012
_____________________________________________________
[1]
There are four appeals from the magistrates’ court before us.
The same parties feature in each appeal, though not in the
same
capacities. For convenience the heading only refers to the parties as
they are in appeal no. A1/12. The issues in the appeals
are virtually
identical and they were argued simultaneously before us. Hence this
judgment deals with all four appeals.
[2]
On 13 October 2006 the respondent instituted the four actions that
are the subjects of the appeals. For convenience I will refer
to each
of these actions simply by its appeal number, namely A1, A2, A3 and
A4. In A1 the first defendant was Dula O Lebelletse
Funeral Parlour
CC. In A2 the first defendant was Jafta & Dora’s CC. In A3
the first defendant was Lehare Café
& Resturant CC and in
A4 the first defendant was Mr. Lesiamo Jafta Lehare. The first
defendant in each action is the first
appellant in each appeal. For
ease of reference the first appellant in each appeal will be referred
to as the customer. In each
action the second to fifth defendants
were Mrs. Kegoname Dorah Lehare and those of the customers that were
not cited as the first
defendant. Mr. and Mrs. Lehare are married to
each other and are the members of each close corporation.
[3]
In each case the respondent claimed from the defendants a specific
amount for professional services rendered at special instance
and
request plus interest
a
tempore morae
at
the prescribed rate. The parties agreed that evidence would be led in
A2 only and that that evidence would be applicable to all
four
actions.
[4]
The respondent presented the evidence of two witnesses namely Mr.
W.W. van Schalkwyk and Mr. J.M. Lessing. None of the appellants
presented any evidence at the trial.
[5]
Mr. Lessing testified that he is the sole shareholder and director of
the respondent, which is a company that provides accounting
services.
He testified as to the genesis and terms of the contractual
relationships between respondent and each of the customers.
He
explained, with reference to invoices and other documents, which
services were rendered by the respondent to each customer in
terms of
general and specific mandates, which fees were charged for those
services and how the amount claimed in each action is
calculated. He
said that the respondent is in business for profit and that invoices
are issued soon after the work in respect of
the particular service
is completed. The invoices are reflected on a statement of account
for each customer in the books of the
respondent. It appeared from
the evidence that after the customers failed to make further payment
to the respondent, these accounts
were handed over to the
respondent’s attorneys for collection. In respect of each
customer and account the attorneys drafted
an acknowledgement of debt
by the particular customer in the amount subsequently claimed in the
relevant summons, as well as deeds
of suretyship in terms of which
each of Mrs. Lehare and the other customers bound themselves to the
respondent as sureties and
co-principal debtors for the liability of
the particular customer. Mr. Van Schalkwyk, who then worked as a debt
collector, was
requested by the respondent to visit Mr. and Mrs.
Lehare to
inter
alia
have
these documents signed.
[6]
Mr. Van Schalkwyk testified that on 27 June 2006 he visited Mr. and
Mrs. Lehare at their home and took time to explain the aforesaid
documents to them. He testified that Mr. and Mrs. Lehare signed all
these documents after reading them. In the case of each close
corporation the acknowledgement of debt and deeds of suretyship were
signed on its behalf by both Mr. and Mrs. Lehare. They also
gave an
undertaking to Mr. Van Schalkwyk to make monthly down-payments in
respect of the accounts.
[7]
In each case the magistrate gave judgment against all five defendants
in the case, that is all five appellants in each appeal,
for the
amount and interest claimed, with costs.
[8]
Three points were argued on behalf of the appellants. These are,
first, that the magistrate should have found that all or at
least
some of the respondent’s claims had become prescribed before
summons was served, second, that the respondent failed
to prove that
the fees charged were reasonable and third, that the magistrate in
any event erred in granting judgment against the
parties to an action
other than the particular customer, that is the first defendant.
[9]
The argument in respect of prescription cannot be accepted. The onus
in respect of prescription was on the appellants. That
onus includes
proof of when the running of prescription commenced. The running of
prescription commences when the debt is due.
A debt is due when it is
owing and payable. The appellants presented no evidence in this
regard. The uncontradicted evidence of
the respondent is that in
terms of its agreement with each customer, the fee in respect of a
service becomes owing and payable
when the customer is invoiced for
that service, but that interest is payable only if payment is not
made within 30 days after invoice.
[10]
The invoices relied upon by the respondent in A1, A3 and A4 are all
dated well within a period of three years before service
of summons.
In A2 several invoices in respect of the outstanding balance on the
account are dated outside of a period of three
years preceding
service of summons. The dates of these invoices commence from 1
January 2001. According to the evidence of the
respondent, however,
the customer in A2 made part payment on the account and therefore in
respect of the outstanding invoices on
25 March 2002 and again within
a period of three years on 14 January 2005. On 27 June 2006 the
customer unequivocally acknowledged
liability for the debt claimed in
the summons. In the circumstances and in the absence of evidence to
the contrary, each payment
must be understood as tacit
acknowledgement of liability for the balance of the debt, each
therefore resulting in interruption
of the running of prescription in
terms of
section 14(1)
of the
Prescription Act 68 of 1969
. See
CAPE
TOWN MUNICIPALITY v ALLIE NO
1981 (2) SA 1
(C)
at 7 and 11H –
12A. Of course the acknowledgement of liability of 27 June 2006,
whilst not relied upon by the respondent as
cause of action, presents
clear evidence of interruption of prescription. In the result, in
terms of
section 14(2)
of the
Prescription Act, the
running of
prescription in respect of the debt in A2 commenced afresh from 27
June 2006. This of course is in any event also applicable
to the
debts in A1, A3 and A4.
[11]
The second argument is without merit. Mr. Lessing, who is clearly an
experienced accountant and in respect of whom a summary
of expert
evidence was filed, testified that all the relevant fees charged were
reasonable and market related. This evidence was
not challenged in
cross-examination and not gainsaid in evidence and was clearly
correctly accepted by the magistrate.
[12]
The magistrate based the judgment in each case against the appellants
other than the particular customer, on the relevant deeds
of
suretyship. In my judgment the respondent was in the particular
circumstances of these cases not entitled to rely on the deeds
of
suretyship. The third point therefor is well taken.
[13]
In the summonses no reference was made to suretyship. The further
particulars in each action conveyed no more than that all
defendants
are liable in terms of the contracts for the provision of accounting
services. At no stage was an amendment in this
regard applied for.
The judgment based on the deeds of suretyship can only be upheld if
we are satisfied that the matter was fully
canvassed at the trial. It
is only then that we can be satisfied that there is no prejudice to
the particular appellants. In the
present cases the matter cannot be
said to have been fully canvassed unless the appellants appreciated
at the time that the respondent
relies or would rely on the deeds of
suretyship as causes of action. Mr. Van Schalkwyk, who testified
first, simply introduced
the deeds of suretyship into evidence and
did not purport to speak on behalf of the respondent in this regard.
According to the
record it was at no stage made clear to the
appellants that reliance is placed on the deeds of suretyship as
causes of action.
On the contrary, Mr. Lessing not only made no
reference to the deeds of suretyship at all, but could reasonably
have been understood
as disavowing a claim against any person other
than the particular customer, by saying that the services rendered to
that customer
and account of that customer had nothing to do with any
of the other appellants. This may explain why it was put to Mr. Van
Schalkwyk
on behalf of the appellants that Mr. and Mrs. Lehare signed
the documentation without reading them and after having been misled
in respect of the contents thereof, but not to Mr. Lessing and why
this was not repeated in evidence.
[14]
Despite the fact that the appellants did not object to the
introduction into evidence of the deeds of suretyship by Mr. Van
Schalkwyk, I believe that the appellants could reasonably have held
the view that the respondent could or would not rely on the
deeds of
suretyship as causes of action and conducted their cases accordingly.
I am therefore not convinced that the matter was
fully canvassed.
[15]
It follows that the appeal of the first appellant in each appeal must
be dismissed with costs. The appeals of the second to
fifth
appellants in each appeal must be upheld. There is no reason to
deprive these appellants of their costs of the trial as well
as the
appeal, if they in fact did incur costs separately or otherwise than
in the capacity of first defendant and first appellant.
This is
however to be determined by the taxing master.
[16]
The following orders are issued:
1.
The appeal of the first appellant in each appeal is dismissed with
costs.
2.
The appeals of the second to fifth appellants in each appeal succeed
with costs and the judgments granted against them are set
aside and
replaced with orders that the claims against them are dismissed with
costs.
________________________
C.H.G. VAN DER MERWE,
J
I concur.
_______________
B.C. MOCUMIE, J
On behalf of appellants:
Mr. N.W. Phalatsi
Instructed by:
N.W. Phalatsi &
Partners
BLOEMFONTEIN
On behalf of respondent:
Adv. P.J.J. Zietsman
Instructed by:
Azar & Havenga Inc
BLOEMFONTEIN
/sp