Amlin (SA) Pty Limited v Van Kooij (A39/2007) [2007] ZAWCHC 60; 2008 (2) SA 558 (C); (30 October 2007)

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[2007] ZAWCHC 60
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Amlin (SA) Pty Limited v Van Kooij (A39/2007) [2007] ZAWCHC 60; 2008 (2) SA 558 (C); (30 October 2007)

IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO. A39/2007
REPORTABLE
In
the application between:
AMLIN (SA) PTY
LIMITED
APPELLANT
and
RIJK
VAN KOOIJ
RESPONDENT
JUDGMENT DELIVERED ON 30
OCTOBER 2007
DLODLO,
J
INTRODUCTION
[1] The matter served before us
as an Appeal against the Judgment of Tulbagh Magistrate. The
Appellant issued summons against the
Respondent on 6 May 2005 for the
payment of the sum of seventy thousand rands (R70 000) allegedly
being money lent and advanced
by the Appellant to the Respondent at
the latter’s special instance and request. The document, purporting
to be a loan agreement,
appears on page 135 of the record. It is
written on top “FAX MESSAGE” and is marked for the attention of
Helmuth Luttig. It
is dated 8 December 2003 and is signed by C.R.
Kooij (Respondent). It reads as follows:
“
Dear Mr Luttig,
I herewith confirm reception
of R70 000.00 received from Amlin SA (Pty) Ltd as a loan (R120 000.00
in Week 41, R50 000.00 in Week
49).”
[2] The Respondent resisted the
action by filing and serving Notice of intention to defend. An
unsuccessful application for summary
judgment in terms of the
Magistrates’ Court Rules was lodged. In an Affidavit in opposition
to the summary judgment application
the Respondent stated
inter
alia
the following:
“
2.1 I did not borrow any
money from the Applicant.
The Applicant asked me during 2003 to give his representative in
South Africa a letter confirming receipt of an amount of
R70 000.
This amount was no loan but part payment of a total sum of €100
000 the Applicant and his company Amlin Holdings owed me…”
[3] In his Plea the Respondent
denied the existence of a loan agreement and pleaded specifically as
follows:
“
3.2.1 Amlin Holdings, a
company registered in the Netherlands, owed Defendant the sum of €100
000 which sum is due and payable
to Defendant.
Part payment of the
aforesaid amount to Defendant was facilitated through Plaintiff
and hence the sum of R70 000 was paid
to Defendant.
In the premises the sum
of R70 000 was not a loan but part repayment of a debt.”
Upon conclusion of the trial
that ensued, the magistrate found in favour of the Respondent. The
Appellant appealed to this Court.
Mr. Engela and Mr. Swanepoel
appeared before us for the Appellant and the Respondent respectively.
THE EVIDENCE
[4] Mr. Von Waesberghe
testified that he is a director of the Appellant company. According
to his evidence the Respondent was never
an employee of the
Appellant. However, the Respondent was in the employ of Amlin
Holdings BV, which rendered professional services
to the Appellant.
Amlin Holdings BV at some stage owed the Respondent an amount of €100
000. According to Mr. Von Waesberghe
at that time the finance of
Amlin Holdings BV was in a rather weak state. At a meeting on 16
August 2003, according to Mr. Von
Waesberghe, it was agreed that the
Respondent would continue to be employed by Amlin Holdings BV until 1
January 2004, where-after
he would be employed by the Appellant. Mr.
Von Waesberghe testified further that on 8 October 2003 the
Respondent received an
amount of twenty thousand rands (R20 000) from
the Appellant, as a loan, and on 1, 3 and 4 December 2003 he received
the further
amounts totalling Fifty Thousand Rands (R50 000), from
the Appellant company as a loan. The Respondent signed a written
document
confirming the loan.
[5] Mr. Von Waesberghe
testified that the aforementioned amounts totalling seventy thousand
rands (R70 000) had never been repaid
to the Appellant company. Under
cross-examination, Mr. Von Waesberghe clarified to the Court
a quo
the relationship between Amlin Holdings BV, the Appellant and the
Respondent. He told the Court that the Respondent’s salary
was paid
by Amlin Holdings BV but the day-to-day expenses incurred by the
Respondent were paid by the Appellant. In his testimony
Amlin
Holdings BV “assigned” Respondent’s services to the Appellant.
In his own words on the salary and/or the commission
of the
Respondent, Mr. Von Waesberghe testified thus:
“You cannot pay a person’s bonus or commission from out a South
African account, that is impossible. From out a complete other
entity
which is called Amlin SA, yes you cannot do that.”
Inasmuch as the Respondent
requested that the Appellant make part payment to him of the debts
owed to the latter by Amlin Holdings
BV, Mr. Von Waesberghe testified
that:
“…
No, he tries out as if
I am willing to put out of Amlin SA which is complete other company
to pay R250 000 I would never agree.
I could never agree because it
cannot happen like that.”
[6] In cross-examination it was
constantly put to Mr. Von Waesberghe that the amounts paid over to
the Respondent was not a loan,
but was a “part payment of a debt’
and/or was paid “in reduction of the debt” owed by Amlin Holdings
BV to the Respondent.
Mr. Von Waesberghe denied and maintained that
Amlin Holdings BV and the Appellant were two independent and separate
entities, distinct
from each other. The following portion of
cross-examination of Mr. Von Waesberghe deserves to be quoted:
“Were you the sole director of Amlin Holdings?.... Yes.
Who own (sic) the shares in
Amlin Holdings?....Amlin Belgium, O! Amlin Vere Verena.
Yes,
but did you hold the shares?....Yes
You
hold the shares?....Yes
So
is it correct to say that you were in total control of Amlin
Holdings. You were the sole director and you would control all the

share holding in Amlin Holdings?....Yes and Vere Verena.
…………………..Is it fair to say Mr. Von Waesberghe that you
were in control of Amlin Holdings and you were the managing
director
of Amlin SA, and you were also in total control of Amlin SA?....I
was, yes.
Mr. Von Waesberghe it is not
our case that Amlin Holding and Amlin SA is the same identity, we
know they are two different companies.
But my proposal to you that
you controlled Amlin Holdings?....Yes.
And the shares in Amlin
South Africa, the Plaintiff in this matter that all hold by the Pro
Trust?....Yes.
And that is your
trust?....No, besides me it was a family trust.
But
you said that you were one of the beneficiaries?....Yes.
It is common cause that
Amlin Holdings owed a lot of money to Mr. Van Kooij?....Yes, Amlin
Holdings does.
So I think can this Court
today accept Mr. Von Waesberghe that Amlin Holdings owed Mr. Van
Kooij the sum of 103 156 euros and 80
cent?....Yes.”
[7] The Respondent, Mr. Van
Kooij, testified that he spoke to Mr. Von Waesberghe telephonically
and told the latter he needed money.
According to the Respondent Mr.
Von Waesberghe’s response was, “I cannot do much but I can pay
you a R100 000.00 from Amlin
SA.” The Respondent asked Mr. Von
Waesberghe for more money whereupon the latter said “the best thing
I can do at the moment
is R20 000.00 and I have to pay that through
Amlin SA.” The Respondent’s testimony regarding the further
payment of R50 000
was similar to the above. The Respondent’s
version throughout his evidence remained that “in his mind the
payments would have
been deducted from the debt owed to him by Amlin
Holdings BV. It was the Respondent’s evidence that he appended his
signature
on B15 because Mr. Von Waesberghe repeatedly asked him to
do so, so that the books of Amlin SA could balance. Asked
specifically
if he heard the evidence by Mr. Von Waesberghe that it
was in fact a loan, loaned to him by the Appellant, the Respondent
reiterated
that money was never a loan but part repayment of what was
owed to him. Asked if he saw Mr. Von Waesberghe after the payment to

him of the money under discussion, the Respondent replied as follows:
“
It was discussed that of
course already knew by telephone that Amlin Holdings was liquidated
and he wanted to meet me. And we met
each other in Paarl and he
wanted to go on with Amlin SA and he wanted me to do it together with
him and if it would be a great
success then he could repay my debts
in the future.”
[8] The Seventy Thousand Rands
(R70 000) was never reclaimed by either the Appellant or Mr. Von
Waesberghe for the whole of 2004
nor subsequently. The Respondent
conceded under cross-examination that the document he signed was
important but added that he was
forced to do so by Mr. Von
Waesberghe. It was put to him that Mr. Von Waesberghe repeatedly
called the Respondent requesting the
document but that did not amount
to force. In response the Respondent stated,
“well he is my boss
so I had to do what he wanted me to do.” The Respondent under
cross-examination repeatedly explained that
“it was never a loan.
It was always agreed that it will be deducted from the debts of Amlin
Holdings. It was never agreed to
be a loan.”
Asked if he found it strange
that Amlin SA, for whom he rendered service on behalf of Amlin
Holdings, paid his expenses, the Respondent
said that Amlin Holdings
could not pay his expenses and that was why Amlin SA had paid him
those expenses.
SUBMISSIONS AND THE LAW
[9] Mr. Engela advanced three
(3) reasons on the basis of which the Respondent’s version that “in
his mind” the amount of
seventy thousand rands (R70 000) would have
been deducted from the debt owed to him by Amlin Holdings BV, should
be rejected. The
three (3) reasons advanced were:
The Respondent admitted under
cross-examination that at August 2003 (before receipt of the loan of
R70 000), the balance of €88
000.00 was owed to him by Amlin
Holdings BV.
In his letter to Mr. Von
Waesberghe dated 11 February 2004, he claimed this exact amount from
Amlin Holdings BV, without having
deducted the loan of R70 000.
His explanation as to why he
still claimed the amount of €88 000.00 from Amlin Holdings BV
during February 2004, notwithstanding
the “part payment of the
debt” is highly improbable. He either “unfortunately forgot to
deduct the R50 000.00 as well”,
or he was again, on his own
version, dishonest.
[10] In a letter dated 10 April
2005 the Respondent himself admitted to the R70 000.00 having been
“borrowed” from the Appellant.
Mr. Engela referred us to a
formulation contained in
National Employers Mutual General
Insurance Ass. v Gany
1931 AD 187
at 199 dealing with
mutually exclusive versions in evidence. The formulation reads as
follows:
“Where there are two stories mutually destructive, before the onus
is discharged, the Court must be satisfied upon adequate grounds
that
the story of the litigant upon whom the onus rests is true and the
other false. …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, and that in this case
absolute
reliance can be placed upon the story as told by A Gany. ……….”
We were also referred to
Maitland and Kensington Bus Co (Pty) Ltd v Jennings
1940 CPD 489
at 492, a judgment wherein the aforementioned
formulation was criticised and elaborated upon. In the
Maitland
and Kensington Bus Co (Pty) Ltd v Jennings
case
supra
the Court stated as follows:
“With
the very greatest deference I venture to think that the use by the
learned Judge of the word ‘absolute’ cannot be correct.
Even in
a criminal case, the jury would not be told that they must be
satisfied that ‘absolute’ reliance could be placed on
the version
of the complainant: they would, I suggest, be instructed that they
must be satisfied that
sufficient
reliance could be put on it, so that they were certain beyond
reasonable doubt that it was true. And in a civil case, of course,

the onus is less heavy.
For
judgment to be given for the plaintiff the Court must be satisfied
that sufficient reliance can be placed on his story for there
to
exist a strong probability that his version is the true one.
And if I have one further remark to make. When I speak of “his
version” and “his story” being true, I mean not necessarily

entirely true, but true in the main and in its essential features.”
Mr.
Engela placed reliance on the aforementioned cases and made a
submission that if applied and the factors counting in favour
of the
Appellant considered, this court should place reliance on the version
of the Appellant and proceed to reject that of the
Respondent. I
undertake to deal with these submissions further on in this Judgment.
For the moment, I merely mention that Mr. Engela
simplified a rather
complex matter. There is, in my view, much more involved in this
matter.
[11] Mr. Swanepoel on the other
hand submitted that the Appellant failed to prove on a balance of
probabilities that the amount
of seventy thousand rands (R70 000) was
lent and advanced by it to the Respondent. Expanding on this
submission Mr. Swanepoel brought
to the attention of this Court that
whilst much reliance was placed on the document on page 135 of the
record, being a fax sent
to Mr. Helmuth Luttig of Amlin SA confirming
the R70 000 to be a loan, Mr. Luttig who was in control of the
Appellant’s administration,
was not called as a witness nor was any
explanation for this witnesses’ “conspicuous” absence given.
Further elucidating
his point Mr. Swanepoel submitted that given the
Respondent’s plea and statements to Mr. Von Waesberghe that the
document at
page 135 of the record was needed to balance the books,
it was incumbent on the Appellant to call Mr. Luttig as a witness.
Mr.
Swanepoel made a submission with which I fully agree, namely,
that it is clear that Mr. Von Waesberghe was in total control of both

Amlin Holdings and Amlin SA. He proceeded to be rather critical of
Mr. Von Waesberghe’s evidence labelling it, as incoherent,

illogical and inconsistent. He further submitted that Mr. Von
Waesberghe repeatedly and almost “in a computerized fashion”

stated that Amlin SA was a separate entity whereas it is clear from
the evidence that the affairs of Amlin Holdings BV, Amlin SA
and even
his own affairs were very much intermingled.
[12] In my view, the questions
raised in this matter suggest that it might be necessary to “pierce
the veil” and treat the two
companies involved as a single entity.
This necessitates that a Court of law (as it does in comparatively
rare instances) “opens
the curtains” of the corporate entity in
order to see for itself what obtained inside. This only becomes
necessary and obligatory
in circumstances where justice will not
otherwise be done to the litigants.
CASES DEALING WITH PIERCING
THE VEIL OF INCORPORATION
[13] The leading cases
concerning piercing the corporate veil on the basis of agency are the
Supreme Court of Canada’s decisions
in
Toronto (City) v
Famous Players Canadian Corp
(1936) 2 D.L.R. 129
and
Aluminium Co of Canada v Toronto (City)
(1944) 3 D.L.R.
609.
In these cases the Court justified piercing the veil on the
basis that the parent effectively controlled the policies and the
operations
of its subsidiaries. In
Aluminium Co
supra
the Judge stated that veil may be pierced where
“it can be said
that the (subsidiary) company is in fact the puppet of the (parent);
when the directing mind and will of the (parent)
reaches into and
through the corporate façade of the (subsidiary) and becomes,
itself, the manifesting agency”
(ibid. 15).
[14] In
the case of
Lockharts Ltd. v. Excalibur Holdings Ltd. et al.
(1987) 47 R.P.R. 8
,
a decision of the Nova Scotia Supreme Court
(Trial Division), Davison J. sets out an exhaustive summary of the
law relating to piercing
the corporate veil in order to find the
individual shareholder liable. The court in this case held that;
“…
the fundamental principle, enunciated in Salomon v. Salomon &
Co., namely that a company is a legal entity distinct from
its
shareholders is good law in Canada save for certain exceptional
cases. The Courts have the duty to look behind the corporate

structure if it is being used for a fraudulent or improper purpose or
as a "puppet" to the detriment of a third party…”
The court
in this case held that the evidence clearly established that the
corporate entities owned by Mr. Harrison were used as
“puppets”
to the detriment of the plaintiff and in that respect was used for
fraudulent and improper purposes.
A
reference was made to the case of
Salomon v Salomon & Co
(1897) A. C. 22
, (1895-9) All E.R. Rep. 33 (H.L.) where the following
formulation appears:
“…
it
has been a clear principle of law that a company is an independent
legal entity distinct from its shareholders. In this case,
the
plaintiff asks me to "lift the corporate veil" on the
grounds of fraud. The plaintiff says Mr. Harrison used Excalibur
to
strip the assets of Baron to avoid payment to the plaintiff of the
amount of the judgment…”
[15] Herron
CJ in
Commissioner of Land Tax v Theosophical Foundation (Pty)
Ltd
(1966) 67 SR (NSW) 70 described “lifting of the
corporate veil” as an “esoteric” label stating further that:
“Authorities in which the veil of
incorporation has been lifted have not been of such consistency that
any principle can be adduced.
The cases merely provide instances in
which courts have on the facts refused to be bound by the form or
fact of incorporation when
justice requires the substance or reality
to be investigated…”
(Ibid,
75)
Similarly
Rogers AJA in
Briggs v James Hardie & Co (Pty) Ltd
(1998) 15 NSWLR 549
(NSWCA, Hope and Meagher JJA concurring), stated
the following:
“[T]here is no common, unifying principle,
which underlies the occasional decision of the courts to pierce the
corporate veil.
Although an ad hoc explanation may be offered by a
court which so decides, there is no principled approach to be derived
from the
authorities.”
(Ibid,
567)
[16] In
O’Donnell v Weintraub
, 67 Cal. Rptr. 274 (C.A. 1968
at 277-78) it was held among other things that the corporate veil may
be lifted under the alter ego
doctrine when the corporation is
organised and operated as a mere tool or conduit of another
corporation or individual. Courts
will look to the total dealings of
the corporation and individual in each case to determine whether the
corporate veil should be
lifted. These specific factors include:
Absence
of corporate formalities; inadequate capitalization; degree to which
corporate and individual property have been separated;
amount of
financial interest of the individual in the corporation; degree of
control individual has over the corporation; and whether
the
individual has used the corporation for personal purposes.
[17] In
the United States one must have regard to the
case of the Supreme
Court, Nassau County in the matter of
NASSAU COUNTY,
Plaintiff, v. RICHARD DATTNER ARCHITECT, P.C
.
2007
WL 1529599 (N.Y.Sup.), 2007 N.Y. Slip Op. 51065(U)
, where it was
said that a corporate veil will be pierced:
“… to achieve
equity, even absent fraud, where the officers and employees of a
parent corporation exercise control over the
daily operations of a
subsidiary corporation and act as the true prime movers behind the
subsidiary's actions and secondly where
a parent corporation conducts
business through a subsidiary which exists solely to serve the
parent.”
The court referred to New York law where piercing the
corporate veil can take place where there has been a failure to
adhere to
corporate formalities, inadequate capitalization, use of
corporate funds for personal purpose, overlap in ownership and
directorship,
or common use of office space and equipment.
In the
United States District Court, D. Arizona In re
ELEGANT
CUSTOM HOMES, INC., Debtor. Elegant Custom Homes, Inc., et al.,
Appellants, v. Elaine M. Dusharm
, Appellee as decided on
May 14 2007,
the court sought to address the issue as to whether
fraud was a necessary element in the determination to pierce the
corporate veil.
The court noted that
“… It was shown that it
has long been the law in Arizona that the corporate form will be
disregarded when the corporation is
the alter ego of one or more
individuals and "the observance of the corporate form would
sanction a fraud or promote injustice."
[18] In
Clarkson
Co. v. Zhelka
,
[1967] 2 O.R. 565, 64 D.L.R. (2d) 57
the court expressed approval of the following statement:
“If
a company is formed for the express purpose of doing a wrongful or
unlawful act, or, if when formed, those in control expressly
direct a
wrongful thing to be done, the individuals as well as the company are
responsible to those to whom liability is legally
owed. In such
cases, or where the company is the mere agent of a controlling
corporate, it may be said that the company is a sham,
cloak or alter
ego, but otherwise it should not be so termed.”
[19] In England in the case of
City of Glasgow
District Council v Hamlet Textiles Ltd
;
Atlas Marine Co SA
v Avalon Maritime Ltd
Error!
Hyperlink reference not valid.
(CA), it was argued that the court taking into account all relevant
circumstances would pierce the veil only where the interests
of
justice or fairness or right dealing so demand. Until the facts have
been established, it is not possible to say whether the
circumstances
are sufficiently special to justify piercing the veil. The general
rule is that a court will pierce the corporate
veil
“only
where special circumstances exist indicating that it is a mere facade
concealing the true facts”
,
so that the separate existence of the company is in some sense being
abused or, at least, is not being maintained in the full
sense, with
the result that separation between the company and its members does
not in fact exist. The question to ask is whether
there are any
exceptional or special circumstances in this case, which would
warrant the piercing of the veil?
The
Courts in England, United States and domestically had no single,
coherent principle upon which to base decisions to disregard
the
separate juristic personality of a company. This, however, has
changed.
[20] Le
Roux J in
Lategan & Another NNO v Boyes & Another
1980 (4) SA 191
(T) put it rather bluntly as follows:
“
I
have no doubt that our Courts would brush aside the veil of corporate
identity time and again where fraudulent use is made of
the fiction
of legal personality.”
The
court, however, did not proceed to “brush aside the veil of
corporate identity” in
Lategan’s
case
supra
because there was no question of fraud that arose. The Judge’s
blunt utterance was merely obiter which exemplifies the tendency
of
Judges to think in terms of categories for purposes of piercing the
veil. One would have thought the Court would proceed to
ignore the
corporate identity in
Banco de Mozambique v Inter-Science
Research and Development Services (Pty) Ltd
1982 (3) SA 330
(T). But, Goldstone J concluded differently, stating at page 345 B-C
of the Report:
“In the present case no single reason has
been advanced for creating a new category of case where corporate
personality should
be ignored. In Dadoo Ltd and Others v Krugersdorp
Municipal Council
1920 AD 530
the Appellate Division enshrined the
inviolability of corporate personality.
”
[21] Another
case in which the test was also expressed obiter is
Botha v Van
Niekerk en ‘n Ander
1982 (3) SA 330
(T). In
Botha’s
case
supra
the Applicant asked the court to pierce the veil of
incorporation so as to enforce the contract of sale against the First
Respondent
regardless of the existence of the company. The Court,
however, declared that the First Respondent could be held personally
liable
on the contract only if there were at least a conviction that
the Applicant had suffered unconscionable injustice as a result of

what right-minded persons would perceive to be clearly improper
conduct on the part of such first Respondent. The Court held that
it
could not arrive at a finding of personal liability of the First
Respondent for the amount owed to the seller by the company.
The
tests propounded in both
Lategan
and
Botha’s
cases
supra
having been obiter, South African Courts are free
to consider alternative approaches to piercing the corporate veil.
[22]
In
this country the Courts will disregard the corporate entity where,
for example, the separate legal personality of a company is
used as a
means or device to conceal wrongdoing or to avoid obligations. (See:
Adams v Cape
Industries plc
1990 ch 433 544;
1991 (1) All ER 929).
A company may always act as an
agent for those persons who happen to be its shareholder in matters
connected with their shareholding.
See:
LAWSA Vol 4 part 1
para 45 2006 Cumulative Supplement).
In
Cape Pacific Ltd v
Lubner Controlling Investments (Pty) Ltd
1993 (2) SA 784
(C),
the Court defined lifting the corporate veil as
“…
a means of disregarding the dichotomy between a company and the
natural person behind it (or in control of its activities)
and
attributing liability to that person where he has misused or abused
the principle of corporate personality…”.
It is probably fair to say that a court has no general discretion
simply to disregard a company's separate legal personality whenever

it regards it as just to do so. It has, however, come to be accepted
that fraud, dishonesty or improper conduct could provide grounds
for
piercing the corporate veil.
[23] I
accept that “opening the curtains” or piercing the veil is rather
a drastic remedy. For that reason alone it must be
resorted to rather
sparingly and indeed as the very last resort in circumstances where
justice will not otherwise be done between
two litigants. It cannot,
for example, be resorted to as an alternative remedy if another
remedy on the same facts can successfully
be employed in order to
administer justice between the parties. The general criteria relied
upon in determining whether the corporate
veil should be pierced
include instances of fraud, agency, evasion and abuse of the
corporate form. The veil could also be lifted
where there is a façade
i.e. where the company is a mere façade concealing the true
state of affairs. The guiding
principle is that veil is lifted only
in exceptional circumstances.
[24] I
accept that the Appellant in the instant matter (Amlin SA) is not
even a subsidiary of Amlin Holdings BV. The latter company
is not
mother company to the Appellant company. The latter was incorporated
and registered in terms of the company laws of the
Republic of South
Africa. But Mr. Von Waesberghe was a 100% shareholder of Amlin
Holdings BV. He was also director of the Appellant
company. The
evidence established that Mr. Von Waesberghe was in total control of
both companies.
[25] Many
activities that obtained in the Appellant company indicated that the
so-called separate legal entities were separate only
in name and for
the convenience of Mr. Von Waesberghe. Evidence revealed that the
Appellant company paid the Respondent’s expenses
in South Africa
whilst the latter remained employed by Amlin Holdings BV. Monies that
were due to Amlin Holdings BV by an entity
known as DGB were also
deposited in the Appellant company’s bank account. Since Mr. Von
Waesberghe was the controlling figure
in both companies and the
activities of the companies being inter-linked, it was, in my view,
more probable than not that when
the Respondent was paid part of what
was owed to him, such payment was indeed meant to be part payment of
the larger amount owed
to him.
[26] It
is common cause that the Respondent was called upon to sign the
document currently relied on by the Appellant long after
payment of
R70 000 had been made to him. He was told the necessity for the
document was merely to balance the books. Common sense
tells me that
Mr. Von Waesberghe must have reconstructed a loan once he came to
this country and discovered the said document.
His own evidence is
telling, “if it is written here then I want it back.” The “catch”
actually started when the Respondent
was asked to sign the document
needed only to balance the books of the Appellant company. Mr. Von
Waesberghe wanted to claim this
back in future hiding behind the
corporate identity of the Appellant company.
[27] It
may also have been by design that Mr. Luttig (the man in SA) was not
called as a witness. Mr. Luttig, as I understood, was
a legally
qualified person who knew how an acknowledgement of debt is prepared.
The document relied upon by the Appellant hardly
resembles an
acknowledgment of debt. Understandably, Mr. Von Waesberghe had grave
difficulties in this regard under cross-examination.
He could not
tell the Court when the “loan” was to be repaid. Later on he
testified that had he applied his mind, he would
have put “down
payment” in.
[28] If
the Seventy Thousand Rands (R70 000) was a loan as testified to by
Mr. Von Waesberghe, what prevented the Appellant company
from
claiming same back much earlier? Despite the regular contact Mr. Von
Waesberghe had with the Respondent, a period of fifteen
(15) months
went by before a lawyer’s letter was sent to the Respondent. It
appears that the claim only became a reality as a
matter of
afterthought when Mr. Von Waesberghe came across the “loan”
document.
[29] The
Respondent’s version is indeed the more probable one compared to
that of the Appellant. The true position is that Amlin
Holdings BV
owed the Respondent a substantial amount of money which despite his
consistent demands was never paid in full to
him. Part payment was
facilitated through Mr. Von Waesberghe and Amlin SA, an entity
directed and controlled by Mr. Von Waesberghe.
The Respondent’s
evidence that the document was submitted because the latter needed it
to balance the books of Amlin SA, remained
uncontested. I should
mention that Mr. Von Waesberghe made an attempt to dispute the
Respondent’s assertion, but that was in
vain, his chief difficulty
being that he was not present at the critical time and place.
[30] I accept that in the
instant case there are indeed two versions that can fairly be
described as mutually destructive. But the
fact of the matter is that
I am not satisfied that the version presented by the Appellant (on
whom the onus rested) is true or
that any reliance can at all be
placed thereon. No judgment can be given in favour of a party bearing
the onus unless the Court
is placed in possession of evidence of such
a quality that it places the Court in a position of being satisfied
that sufficient
reliance can be placed thereon. Even if I am found to
have been wrong in “piercing the veil” of the corporate entities,
in
my view, the Appellant can still not succeed. Apart from relying
on a questionable document, the Appellant did not counter the defence

put up by the Respondent. I am of the view that this appeal cannot
succeed.
In the result I would propose
that the appeal be dismissed with costs.
_______________________
DLODLO, J
I
agree and it is so ordered. ______________________
BOZALEK,
J