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[2009] ZAGPPHC 159
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Stabilpave (Pty) Ltd v South African Revenue Services (946/2008) [2009] ZAGPPHC 159 (11 December 2009)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER:
946/2008
D
ATE
:11-12-2009
In
the matter between:
STABILPAVE
(PTY) LTD
Plaintiff
and
THE
SOUTH AFRICAN REVENUE
SERVICES
Defendant
JUDGMENT
Ismail
AJ:
[1]
The
plaintiff and defendant in this matter agreed upon a stated case in
order to assist the court in determining the issue in dispute
between
them.
Stated
Case:
The
parties record that the facts set out hereinafter are common cause
between them apart from admissions already made by either
one of the
parties in the pleadings and the responses to the pre-trail
questionnaires and as embodied in the Rule 37 Minute.
Reference
to page numbers is to the numbers of documents contained in the trial
bundle.
1.1
On 16 October 2006 the defendant issued an income tax assessment (IB
34) to the plaintiff. This document was received by the
plaintiff's
secretary being MDP Secretarial Service (Pty) Ltd on the 25 October
2009.
1.2
The post box number on the assessment is the post box number of the
secretary of the company the aforesaid MDP Secretarial Services
(Pty)
Ltd as well as of the plaintiff's accountants being Malan Du Preez
Inc at P.O Box 2006, Menlyn, 0063.
2.
The defendant drew a "not transferable" cheque in favour of
plaintiff, which cheque was dated 12
th
November 2006, for payment of an amount of
R728
474.74
which
was intended to pay to plaintiff the amount due in terms of the
aforesaid assessment and interest which have accrued on the
said
amount.
3.
The defendant, on or about 14
th
November 2006 handed the cheque in a sealed envelope to Securemail, a
division of the South African Post Office. The envelope containing
the cheque herein issued was addressed to Stabilpave (Pty) Ltd, PO
Box 2006, Menlyn, 0063
4.
Securemail caused a "delivery notification" to be issued, a
copy of which is at page 37 of the trial bundle.
5.1
The envelope containing the cheque was retrieved from the Menlyn
Retail Post Office by a person Mbukuman Wellington Mtima on
23
November 2006 when he presented the delivery notice (p. 37) together
with a letter of authorisation (p. 38) purportedly issued
by Prinsloo
& Du Plessis Inc. Mtima had no authority from the plaintiff to
collect the cheque from the post office and is totally
unknown to
both parties to this action.
5.2
The letter purportedly written by Prinsloo & Du Plessis (p. 38)
is a fake as no such firm, to the best of the knowledge
of the
parties exists and even if it does exist, it is in no way connected
to or associated with the plaintiff.
5.3
The said Mtima and/or other persons unknown to the parties,
therefore, on or about 23 November 2006 stole the cheque.
6.1.
At all material times to this action the sole directors of the
plaintiff company were J M Geyser, JE Raubenheimer and F Kenney.
6.2
Without the authority of either of the directors or the plaintiff the
record in the office of the Registrar of Companies were
fraudulently
changed so as to reflect one Pretros Mandla Radebe as the sole
director of the plaintiff company purportedly appointed
as such on 14
December 2006.
6.3
The said Radebe is unknown to plaintiff or any of its directors and
had no authority to have the records in the office in the
Registrar
of Companies changed.
The
address "Postal 401 Soekmekaar Street, Faerie Glen, Extension 2,
0042", appearing on p. 45 and 63 is an address unknown
to and
not ever having been used by the plaintiff.
7.1
On 2 January 2007 the said Radebe again acting fraudulently and
without the authority of the plaintiff, opened, in the name
of
Stabilpave (Pty) Ltd, registration number 1986/002268/007 a banking
account with the Hatfield Branch of First National Bank.
With account
number 62124808801.
P.
46
to 56
7.2
The plaintiff was unaware of and did not authorise the opening of
this account.
8.
At all material times and in particular in the period 20 December
2006 to 27 January 2007 plaintiff operated on one bank account
being
at the Bloemfontein Branch of Nedbank under the number. 1102439770
P.
41 -44
9.1
On 3 January 2007 a person unknown to the parties and unauthorised by
the plaintiff deposited the cheque at the Menlyn Branch
of First
National Bank to the credit of the account opened fraudulently by
Radebe at the Hatfield Branch of that bank.
CHEQUE,
p. 36; DEPOSIT SLIP, P. 60 AND 61
9.2
The cheque was presented by First National Bank for payment by the
defendant's bankers Absa Capital; on 3 January 2007. Absa
paid the
amount to First National Bank and debited the defendant's account
with the amount of R728 474.74 on that date.
BANK
STATEMENT,
p.
62
9.3
After 3 January 2007 and over a relatively short period of time the
full amount deposited to the cheque account at the Hatfield
Branch of
First National Bank was withdrawn by the said Radebe purporting to
act as a director of the plaintiff company and in
fact overdrawing
the said account.
P.
57 - 59
10.
When the plaintiff discovered the unauthorised change in its
directorship the Registrar of Companies was requested to rectify
its
registers which was done as appears from a letter, p. 68 of the trial
bundle.
11.1
A case of fraud was reported to the SAPS at Bayswater Bloemfontein
but no arrests have been made.
P
64
11.2
It is common cause that FNB repudiated the defendant's claim on the
grounds contained in
page
91 read with page 92
of
the bundle.
12.
It is common cause between the parties that neither the plaintiff nor
anyone representing the plaintiff and duly authorised
thereto,
received the delivery notice (p. 37) or the cheque.
13.
The plaintiff's case is that it has not received payment and thereof
claims the amount reflected on the assessment plus interest
and
costs.
PLEADING,
p. 5 and 6
The
defendant's main defence is that the defendant complied with its
obligation for payment of the full amount of the cheque.
PLEADINGS,
par. 6, p. 15 and 16
Defendant's
alternative defence is based in the wording of the assessment which
is quoted in paragraph 7.4 at p. 17as follows:
Henceforth
the plaintiff elected, alternatively accepted that payment be
effected by way of a cheque which would be collected at
the nearest
post office of the plaintiff."
No
replication having been filed. The allegations in paragraphs 7.2 and
7.3 (pleadings, p. 17) are deemed to be denied.
However,
plaintiff admits that as a taxpayer it was obliged to and did in fact
provide the postal and registered address of the
plaintiff to the
defendant. Further that as at the day of the assessment the plaintiff
had not provided any banking details to
the defendant.
14.
It is common cause that the plaintiff expected payment of the refund
in accordance with the
assessment notification.
See:
P
41 of the pleadings and P 35 of the exhibit bundle.
15.
It is agreed between the parties that the
onus
rests
on the defendant to prove the defences put forward in the plea.
16.
The stated case and the facts set out in 1.1 to 15 above was signed
by attorney Pieter Schuurman on behalf of the plaintiff
and by adv H
Kooverjie on behalf of the defendant on the 16 November 2009.
Issue
to be Determined:
[2]
The legal issue to be determined is whether as a matter of law
payment was made to the Plaintiff or not.
[3]
No evidence was tendered and the issue to be determined was argued
before me on behalf of counsel representing the respective
parties.
Submissions
in this Court:
[4]
Mr De Bruin SC representing the plaintiff submitted that it was
common cause that the plaintiffs banking details were not
known to
the defendant. The assessment form contained the following notice: "
die kredit bedrag wat nou op u belastingrekening
reflekteer word
eersdaags aan u betaal. Hierdie betaling sal; geskied deur middle van
l
n
tjek wat by u naaste poskantoor afgehaal kan word of indien geldige
besonderhede beskikbaar is, sal 'n elektronies oorbetaling
gemaak
word deur gebruik te maak van die besonderhede soos per u
belastingrekord."
[5]
According to Mr De Bruin it was the defendant who choose to make
payment of the amount due by means of a cheque and to send
the cheque
to Menlyn Post Office where the cheque ought to be collected.
[6]
If the submission made by Mr de Bruin is correct then it would be the
end of the matter and the plaintiff would be entitled
to succeed in
the action in the light of the authority of
Mannesmann
Demag (Pty) Ltd v Romatex Ltd and Another
1988
(4) SA 383
(D) at 389 where Nienaber J stated :
"
When a debtor tenders payment by cheque, and the creditor accepts it,
the payment remains conditional and is only finalised
once the cheque
is honoured. (Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton
& Another,
1973 (3) SA 685
(A) at 693, Christie, the Law of
Contract in South Africa at 413). Until that happens a real danger
exists that the cheque may
be misappropriated or misled and that
someone other than the payee may, by fraudulent means, convert it
into cash or credit, for
instance, by forging and endorsement or by
impoersonating the true payee. That risk is the debtor's since it is
the debtors duty
to seek out his creditor.''
According
to Mr De Bruin the present case fall squarely within the
aforementioned dictum.
[7]
Ms Kooverjie acting for the defendant on the other hand submitted
that the assessment form gave the plaintiff an election
to choose the
mode of payment. He could elect for payment to be made
by
means of post to his postal address or alternatively by him providing
his banking details, in which case the money would be deposited
into
the plaintiffs account. According to the defendant these
were
the only two methods of payments which the defendant would comply
with. Counsel for the defendant submitted that it was an
express term
which stipulated that payment would be made by post if
no
banking details were provided. Ms Kooverjie relied upon the matter of
H
K Outfitters (Pty) Ltd v General Assurance Society
Ltd
1975 (1) SA 55
at 61 where Botha , J. referred to
Dadoo
& Sons Ltd v
Administrator,
Transvaal,
1954
(2) SA. 442
(T) at p.455 F-G, whereRumpff J., said:
"
The legal position appears to be that if a creditor request a debtor
to settle his debt by sending a cheque through the post
he agrees to
run the risk of loss in the transit. By making this request he does
not appoint the post office his agent but he authorises
the manner of
payment. It would depend upon the facts of each case
whether
or not the request was actually made by the creditor."
See
also:
Barclays
National Bank Ltd v Wall
1983
(1) SA 149
at 157.
[8]
What needs to be determined is which of the parties stipulated or
requested that payment should be effected through the post.
Is the
situation as described by Mr De Bruin, namely that the defendant
chose the method of payment through the post or is the
position as
described by Ms Kooverjie. In my view the answer to this question
would determine the outcome of the case, in view
of the parties
agreeing that the cheque was posted and that it was honoured.
[9]
I am of the view that the assesment form was a notification to the
taxpayer that it either owed monies to the fiscus or alternatively
that monies were due to the taxpayer. In this case that monies were
due to the plaintiff. The notice clearly had the taxpayer's
postal
address which he obviously furnished to the defendant. The assessment
form furthermore gave him an election whereby he could
receive
payment through the post to the address provided alternatively the
taxpayer could provide its banking details so that the
monies owed
could be directly transferred into the bank account nominated by the
taxpayer.
[10]
The taxpayer choose not to give his banking details on the tax forms
(IB14) which it submitted for the years 2005 and 2006
and also failed
to provide the banking details when it received the assessment form.
By not furnishing its banking details the
taxpayer choose that any
monies due to it should be posted to its address rather than be paid
into its account. I am therefore
of the view that I find myself in a
situation where I respectfully disagree with the submission made by
Mr De Bruin referrred to
in paragraph [4] above, that the defendant
choose the method of payment. The contrary view as suggested by Ms
Kooverjie during
arguments before me has credence and substance,
namely that the plaintiff expressly choose that payment should be
made to it by
post.
[11]
Mr De Bruin also submitted that the defendant did not make payment as
it was not shown that the notification from the post
office was
received by the plaintiff. The plaintiff followed the route chosen by
the defendant by sending the cheque through the
post to the
defendant's postal address by securemail. We do not know whether this
notification was intercepted after it had been
placed in the
plaintiff's postal box or before it was inserted in the box. This
issue in my view is irrelevant by virtue of the
parties agreeing that
the cheque was posted by the defendant and that the cheque was met.-
see
Goldfields
Confectionery
and Bakery (Pty) Ltd v Norman Adams (Pty) Ltd
1950
(2) SA 763
(T) at 769 and
Mannesmnn
Demag
supra
at p.388 B-F.
[12]
Ms Kooverjie in her heads of argument also referred to the provisions
of section 81 of the Bills of Exchange Act 34 of 1964
[the Act],
relating to the issue of the true owner of the cheque. Section 81
states:
"
The true owner of stolen/lost crossed cheque marked 'not negotiable'
entitled
to compensation from certain subsequent possessors"
I
was provided with two articles. The first of which was written by
Matthew Moodley entitled
"Stolen
Cheques-li The rights of the true owner"
and
the second article written by by P Q R Boberg entitled
"When
the Postman Doesn't Ring - the perils of paying by post."
Dealing
with the question of section 81 of the Act. These articles were
useful and informative, however, in my view I need not consider
them
in view of the issues in this matter being defined by virtue of the
stated case. The liability that the plaintiff claims is
that it did
not receive payment whereas the defendant aliedging that it made
payment to the plaintiff. Section 81 deals with the
question of
liability of the true owner from possessors of the cheque after it
was intercepted or stolen. This issue is in the
circumstances of this
case is academic and irrelevant, in view of my finding that the
plaintiff choose the post as a means of receiving
payment.
Order:
[13]
In the circumstances I make the following order:
1
.
That the defendant has discharged the onus that it made payment
2.
The plaintiffs claim is dismissed with costs. Such costs consequent
upon the employment of two counsels.
For
the Plaintiff: Adv De Bruin SC instructed by Hill McHardy and Herbst-
Bloemfontein. ref: Mr Schuurmann
For
the defendant: Adv Kooverjie and Adv M Dewrance instructed by Rudman
Attorneys, Pretoria. Ref: Mr P Rudman
Judgment:
Delivered on 11 December 2009