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[2009] ZAGPPHC 371
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Tayob and Another v ZIBC Construction (A87/2007) [2009] ZAGPPHC 371 (20 November 2009)
/SG
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: A87/2007
DATE:
20 NOVEMBER 2007
in
the matter between
AHMED
TA
YOB 1
st
APPELLANT
FREDDY
MANTIKWE 2
nd
APPELLANT
And
ZIBC
CONSTRUCTIONS
RESPONDENT
JUDGMENT
QMAR.
AJ
[1]
This is an appeal against the judgment
delivered by Magistrate DUBE at Polokwane on 25 August 2006 in terms
of which the respondent
succeeded in its claim against the appellants
for payment of the amount of R71 000.00, the one paying to release
the other together
with interest on the said amount at the rate of
15.5% per annum from 1
September
2004 to date of payment.
[2]
All the parties were legally represented
at the trial Mr Patrick Maroka, the only member of the respondent
testified on behalf of
the respondent. The first appellant and one
witness testified on behalf of the first appellant and the second
appellant testified
on his own behalf.
[3]
The magistrate called an addition witness to testify on behalf of the
respondent.
[4]
No heads of argument were filed on behalf of the respondent nor was
there any legal representation on behalf of the respondent
during the
hearing of the appeal.
[5]
The appellants grounds of appeal are set out in their notices of
appeal dated 15 September 2006 and 26 September 2006 respectively
which forms part of the record.
[6]
It is common cause that the respondent and the second appellant
attended at the business premises of the first appellant on
12 August
2004 in order to negotiate and cash a cheque in the amount of R111
720.00.
In
terms of an agreement between the parties the first appellant gave a
cash amount of R40 720.00 to Mr Patrick Maroka and the balance
was to
be collected at a later stage.
[7]
What is in issue are the terms of the agreement as to who should
receive the balance of the monies.
[8]
An invoice (slip) marked as exhibit “A” was handed into
court with the consent of the parties.
[9]
The respondent issued summons against the appellants approximately
one year after the incident.
[10]
Mr Patrick Moroka briefly testified that he gave the first appellants
employee copies of the certificate of the company his
identity
document and telephone number. He received cash in the amount of R40
720.00 and then went to Frazier. He was in the company
of Mantikwe,
the second appellant and Freddy Ramaphakela and Ike Mapoto. He was
given an invoice by first appellant’s employee
and he left the
invoice at the office of the second appellant.
The
balance of the monies were given to the second appellant. He did not
authorise the second appellant to receive the monies on
his behalf.
[11]
The first appellant briefly testified that on 12 August 2004 Mr
Patrick Moroka and the second appellant, Freddy Mantikwe, came
to his
store with a cheque to the value of R111 720.00 which they wanted to
cash.
In
terms of an agreement between the parties an amount of R40 720.00 was
given to Mr Patrick Moroka in cash and the balance of R60
000.00 was
to be given to Mr Freddy Mantikwe the following day and he had to
purchase goods for the amount of R11 000.00. An invoice
(slip) was
issued and the monies were to be paid to whoever produced the
invoice. Mr Freddy Mantikwe produced the invoice the following
day
and the monies were paid to him.
[12]
Ms Paulinah Tsantsa briefly testified that she was present when the
agreement was entered into between the parties and that
the balance
of the monies were paid to Mr Freddy Mantikwe after he had produced
the invoice.
[13]
The second appellant briefly testified that in terms of an agreement
between the parties, the balance of the monies were paid
to him by
the first appellant which he subsequently gave to Mr Patrick Moroka.
The invoice was given to him by Mr Patrick Moroka
at the first
appellant’s business premises.
[14]
At the end of the case there were two versions before the court,
namely, the version of Mr Patrick Moroka on the one hand and
the
version of the first appellant on the other hand,.
[15]
It is clear from the record that the testimonies of the first
appellant’s witness and the second appellant supported
the
version of the first appellant.
[16]
The magistrate in the court a quo did not reject the testimony of the
first appellant’s witness nor the testimony of
the first
appellant or the testimony of the second appellant.
[17]
In granting judgment against the appellant the court a quo -
1.
took into consideration the fact that
the respondent is a single witness and the cautionary rule applies;
2.
found that it was highly unlikely if not
improbable that the fist appellant’s witness requested the
particulars of the plaintiff
when she paid out the R40 000.00 but did
not take details of the second appellant when he came to fetch the
balance of the monies
nor did she make him sign to show that he
actually received the monies;
3.
accepted the testimony of the respondent
but failed to make a ruling on the credibility of the first and
second appellants witnesses
testimonies;
4.
believed that there was a duty of care
on the first appellant to ensure that he pays the right person;
5.
found that the first appellant acted
negligently when he paid the monies to the second appellant without
any identification;
6.
found that on a balance of probabilities
the respondent’s claim succeeds.
[18]
It was submitted by first appellant’s counsel that -
1.
the magistrate erred in not making a
finding as to the credibility of the first appellant and second
appellant’s witnesses
and that their testimonies corroborated
each other.
2.
the magistrate acted irregular and was
biased in favour of the respondent in calling on her own, a witness
to clarify a point on
behalf of the respondent and despite objections
from the first and second appellant’s legal representative.
3.
the magistrate erred in not finding that
the respondent’s version is improbable.
4.
the magistrate erred in finding that the
identification of the person that must collect the money from the
first appellant is of
importance.
5.
the magistrate erred in finding that the
first appellant acted negligently when he paid out to the second
appellant.
6.
the magistrate erred in finding that the
first appellant had a duty of care towards the respondent in view of
the method of payment.
[19]
There are a number of problems with the judgment of the magistrate in
the court a quo.
[20]
In my view the magistrate erred in not making a finding as to the
credibility of the first appellant and second appellant’s
witnesses. Where there are two mutually destructive versions before
the court, the magistrate must be satisfied that the plaintiff’s
version is true and the defendant’s version false.
In
Employers Mutual General Insurance
Association v Gany
1931 AD 187
at
199 it was held that it must be clear to the court of first instance
that the version of the litigant upon whom the onus rests
is the true
version. The court must be satisfied on adequate grounds that the
story of the litigant upon whom the onus rests is
true and the other
false.
[21]
In my view the magistrate acted irregularly in calling a witness on
her own despite objections from the first and second appellants’
legal representatives.
It
was held in:
Rowe v Asst. Magistrate
PTA and Another
1925 TPD 361
, that a
court cannot call a witness whom no party to the case has thought fit
to call without the express or tacit consent of the
parties.
[22]
It is also clear from the record that the witness called by the
magistrate, in any event, did not corroborate the evidence
of the
respondent. His evidence in fact contradicted the evidence of the
respondent which was given under oath.
[23]
In my view, the magistrate, in finding that the first appellant acted
negligently and had a duty of care towards the respondent,
misdirected herself as the cause of action is based on contract for
specific performance between the first appellant and the respondent.
[24]
I agree with first appellant’s counsel that the magistrate
erred in not finding that the respondent’s version is
improbable.
It
is highly improbable that a person in the position of the respondent
would wait approximately one year before instituting action
against a
person who owes him a substantial amount of money. It is further
improbable that a person in the position of the respondent
would not
lay a criminal charge of theft against the second appellant who
received his money.[25] In my view, the probabilities
favour the
first appellant and judgment should have been granted in his favour.
His evidence was not contradicted and his version
was corroborated by
his witness and by the second appellant.
[26]
I am satisfied that in terms of the
agreement between the parties the second appellant was entitled to
receive payment of the balance
of the monies and as such the appeal
must succeed.
[27]
In the result the following order Is
made
1.
The appeal by the appellant succeeds
2.
The order of the court a quo is set
aside.
3
.
The respondent is to pay the costs of
appeal
S
S OMAR
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
agree
M
H ISMAIL
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
Heard
on:
For
the Appellants:
Adv
Instructed
by:
Messrs
For
the Respondent:
Adv
Instructed
by:
Messrs
Date
of Judgment: