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
>>
2009
>>
[2009] ZAGPPHC 34
|
|
Sampsons Building (Pty) Ltd v Stanlib Wealth Management Ltd and Another (33002/2004) [2009] ZAGPPHC 34 (28 April 2009)
/SG
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE:
28/04/2009
CASE
NO: 33002/2004
UNREPORTABLE
In
the matter between:
SAMPSONS
BUILDING (PTY) LTD
PLAINTIFF
And
STANLIB
WEALTH MANAGEMENT LTD
1
ST
DEFENDANT
WESVAAL
MAKELAARS INC
ALTERNATIVELY
WESVAAL MAKELAARS
2
ND
DEFENDANT
JUDGMENT
SERITI,
J
Introduction
This
matter came to court by way of an action.
1.
In the particulars of claim, the plaintiff
inter alia
, alleges
that on or about 13 December 2001 the plaintiff and the
first defendant entered into an agreement in terms of
which the first
defendant undertook to invest, on behalf of the plaintiff an amount
of R5 000 000.00. Plaintiff further
alleges that :
“
Die relevante wesenlike
uitdruklike alternatiewelik, geimpliseerde, alternatiewelik,
stilswyende terme van die beleggingsooreenkom
was:
5.1 dat die eiser
sou toesien dat ‘n bedrag van R5 000 000.00 aan die
eerste verweerder betaal
word om deur die eerste verweerder belê
te word in die sogenaamde Multivest Corporate Investment Trust van
Liberty Groep
se geldmarkfond; …
Op of ongeveer 13 Desember 2001
het die eiser sy verpligtinge in terme van die beleggingsooreenkoms
nagekom deurdat ‘n
bedrag van R5 000 000.00 deur
Dezzo Trading 85 (Edms) Beperk ten behoewe van die eiser gedeponeer
in die bankrekening
van Multivest Corporate Investment Trust.”
2.
Plaintiff further alleges that on or about 17 December 2001 the first
defendant,
with its own funds, in favour of the plaintiff, invested
an amount of R5 000 000.00 in a policy, and on the said
date,
plaintiff became lawful owner of the said policy or investment.
On 18 December 2001 first defendant issued to the plaintiff
an investment certificate.
3.
Plaintiff further alleges that on or about 18 December 2001,
without
plaintiff’s knowledge Dezzo Trading 85 (Edms) Beperk
instructed its bankers not to honour the cheque of R5 000 000.00
mentioned above.
During
February/March 2002, plaintiff demanded that the first defendant
should pay it the R5 000 000.00 invested
on behalf of the
plaintiff, and the first defendant refused to refund the said
invested amount.
4.
In its plea, the first defendant denied that it concluded investment
agreement
with the plaintiff on or about 13 December 2001.
It alleged that the first defendant processed the online application
of the plaintiff on or about 17 December 2001, whereafter
an agreement between plaintiff and first defendant came into
existence.
5.
The first defendant further alleges that:
“
On a proper construction of the
agreement aforesaid the plaintiff would only acquire rights as an
investor
vis-à-vis
the First Defendant on receipt by
the First Defendant of funds to be invested in terms of the
agreement, alternatively
4.9.2 the agreement tacitly provided
that the plaintiff would only acquire rights as an investor
vis-à-vis
the First Defendant in terms of the agreement on receipt by the First
Defendant of funds to be invested in accordance with the
agreement.”
The
first defendant further alleges that the R5 million cheque drawn
by Dezzo Trading (Proprietary) Limited was dishonoured,
and that
means that no payment was received by the first defendant on behalf
of the plaintiff and no investment was made on behalf
of the
plaintiff.
6.
During the pre trial meeting, the following was noted:
“
A.
The parties agree that the following issues are in dispute:
1.
The meaning and interpretation of the client application authority
and mandate referred to
by the parties in paragraph 4 of the
Particulars of Claim, read with Annexures ‘A’ and ‘B’,
and paragraph
4 of the plea read with Annexures ‘X’ and
‘Y’ respectively;
2.
Whether the plaintiff is entitled to payment from First Defendant in
the amount of R4 989 000.00
in the light of the following:
2.1
A cheque drawn by Dezzo Trading 85 (Pty) Ltd for R5 000 000.00
(FIVE MILLION RAND) was deposited into the account of the Trustees of
the Liberty Specialised Investments on 13 December 2001;
2.2
The plaintiff’s on-line application was processed by
First
Defendant on 18 December 2001;
2.3
Payment of the cheque was stopped by Dezzo Trading (Pty) Ltd
on
17 December 2001;
2.4
First Defendant reversed investment MV 1006761 on 12 February 2002
after it had learned that payment of the cheque had been stopped.
2.5
Plaintiff maintains that an investment was made in its name
and that
it is entitled to the proceeds thereof …”
Findings
7.
One of the documents which forms part of the agreement is “Blue
Print Pro
Forma Data Capture Form”. Clause 10 thereof reads
partly as follows:
“
B.
General Risk Warning
The duties of Liberty Specialised
Investments as a Linked Investment Service Provider (‘LISP’)
are to duly process a
client’s investment instruction, which
shall mean:
- To receive the
client’s investment amount into its trust accounts;
- To invest such
amounts timeously in accordance with the client/retirement
fund/preservation fund mandate: …”
According
to the particulars of claim the agreement between the parties,
entailed,
inter alia
, that there would be a payment to the
first defendant, of the sum of R5 million. Plaintiff alleges
that on 13 December 2001,
in order to comply with its
obligations in terms of the investment agreement, caused a payment of
R5 million to be made by
Dezzo Trading 85 (Pty) Ltd.
It
is common cause that the cheque drawn by Dezzo Trading 85 (Pty) Ltd
was not honoured.
In
Eriksen Motors Ltd v Protea Motors and Another
1973 3 SA 685
at 693G H HOLMES JA said:
“
1. In
general, payment by cheque is
prima facie
regarded as
immediate payment subject to a condition. The condition is that the
cheque be honoured on presentation. When the cheque
is so honoured,
the date of payment of the debt is the date of the giving of the
cheque. Conversely, if the cheque is dishonoured
there has been no
payment.”
8.
On the papers, plaintiff alleged that it complied with its
obligations and made
a payment of R5 million by cheque. Payment
by cheque is regarded as immediate payment subject to the condition
that the cheque
is honoured. It is common cause that the cheque was
not honoured and consequently the plaintiff’s allegation that
it complied
with its obligation to make payment is false.
9.
In this case each party had an obligation to perform. The obligation
of the plaintiff
was to make funds available and the obligation of
the first defendant was to invest, on behalf of the plaintiff the
said funds.
The
first defendant’s counsel submitted, correctly so in my view
that the obligation of the first defendant was consecutive
to the
obligation of the plaintiff to make payment to the first defendant.
Since
the plaintiff has failed to perform its part of the obligation, it is
not entitled to sue on the basis of the contract.
10.
My view is that the plaintiff has failed to prove its case and its
action should fail.
I
therefore, make the following order:
10.1 The plaintiff’s claim
is dismissed.
10.2 The plaintiff is to pay the
costs of the first defendant and the said costs will include costs
consequent upon the employment
of two counsel.
W
L SERITI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
33002/2004
Heard
on
:
21 April 2009
For
the Plaintiff
:
Adv M H Wessels SC and J P Daffue
Instructed
by
:
Van Heerdens Inc, Pretoria
For
the Defendants
:
Adv
J G Wasserman SC and P T Rood
Instructed
by
:
Messrs Cliffe Dekker Hofmeyr Inc, Pretoria
Date
of Judgment
:
28 April 2009