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[1987] ZASCA 19
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Shabala v Iliev and Another (147/85) [1987] ZASCA 19 (26 March 1987)
ANOTHONY JOHN SHALALA
Appellant
and
JOSEPHINE ILIEV
1st
Respondent
and
SHALALA BROTHERS (PTY)
2nd Respondent LTD.
Case No: 147/85 mp
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
ANTHONY JOHN SHALALA
Appellant
(Second Respondent in the Court
a quo)
and
JOSEPHINE ILIEV
First Respondent
(Applicant in the Court
a quo)
and
SHALALA BROTHERS (PTY) LIMITED
Second Respondent
(First
Respondent
in the Court
a quo
)
CORAM:
JOUBERT, HOEXTER, GROSSKOPF, VIVIER, JJA et STEYN,
AJA
HEARD:
5 March 1987
DELIVERED
: 26
March 1987
JUDGMENT
HOEXTER, JA
2.
HOEXTER
, JA,
In this appeal the second respondent ("the company") is a private company
known as Shalala Brothers (Pty) Ltd which was incorporated
in December 1954 with
a registered share capital of ninety El shares. The real parties in the appeal
are Mr Anthony John Shalala,
who is the appellant, and his sister Mrs Josephine
Iliev (born Shalala). Mrs Iliev is the first respondent in the appeal. In the
Court below Mrs Iliey was the applicant, and in this judgment reference to her
will be made as "the applicant". The appeal concerns
the propriety or otherwise
of an order for rectification of the company's share register granted in favour
of the applicant in the
Court below.
The salient facts may be stated quite shortly. The appellant and the
applicant live in Klerksdorp where each carries on his or her
own business. At
the time of the company's formation in 1954 the appellant was a bachelor
and
3.
and the applicant was married to one Michael Shalala. Their
marriage was dissolved in March 1955. The applicant was then known as
"Josephine
Shalala" and for business purposes she signed her name thus. In 1970 the
applicant married her present husband, one Iliev.
In the same year the appellant
married one Hind Shalala. During 1975 Hind Shalala instituted an action for
divorce against the appellant,
and their marriage was dissolved in 1977.
Thereafter the appellant married a Miss Nel.
When the company was formed thirty shares in it were issued to each of three
initial shareholders, being respectively the appellant,
the applicant, and their
brother Mr Daniel John Shalala ("Daniel"). Each shareholder was issued with an
original share certificate
dated 14 March 1955. Certificate Number 1 (in respect
of shares nos 1 - 30) was issued to Daniel; certificate Number 2 (in respect
of
shares nos 31 - 60) was issued to the appellant; and certificate Number 3 (in
respect of shares nos 61 - 90) was issued to
the
4. the applicant. In October 1959 Daniel transferred his thirty
shares (nos 1 - 30) to the appellant, and pursuant thereto a.certificate
Number
4 was issued to the appellant. Until the end of January 1974 the sole
shareholders in the company were the appellant (sixty
shares) and the applicant
(thirty shares); and the share register of the company reflected their
respective shareholdings accordingly.
At all material times one Grobler, who practises as an accountant at
Klerksdorp, acted as the auditor respectively to the appellantr
the applicant
and the company. In addition Grobler's firm performed secretarial duties for the
company. At all material times the
appellant was the controller of the company.
According to the minute book of the company a meeting was held on 5 Pebruary
1974 which
was attended by the appellant and the applicant. In what follows I
shall refer to the meeting thus reflected in the minute book as
"the 5 Feb
meeting". The minutes of the
5 Peb
5. 5 Feb meeting are signed by the appellant as "chairman" and
they record that the following business was transacted thereat -
"SHARE : It was decided that J Shalala
CAPITAL would receive R2 000,00
for
her 30 shares and that they would be transferred as follows:-
A J Shalala to receive 29
shares
Hind Shalala to receive 1
share
DIRECTORS
: J Shalala resigned as Direc=
tor of the Company. She is to be replaced by Hind Shalala. Sylvia Shalala was
also appointed as a Director of the Company."
On 5 February 1974 the appellant signed a Securities Transfer Form ("the
share transfer form") as the transferee of 30 shares in the
company from
"Josephine Shalala" as the transferor. The number of the relative share
certificate is therein stated as "2", and the
distinctive numbers of the shares
as "31 - 60". In the portion of the share
transfer
6. transfer form in which the
transferor's signature has to be affixed there occurs a signature "J Shalala"
above the date "5.2.74".
In what follows reference will be made to this
signature as "the disputed signature". The share transfer form states that the
sum
paid for the shares to be transferred is R2 000 and indicates the names of
the trans= ferees as "Anthony John Shalala - 29 shares,
and Hind Shalala 1
share."
Cpncerning the share certificates issued by the company and also its share
register, the appellant on 7 February 1974 deposed to an
affidavit ("the false
affidavit" which was thereafter pasted onto the inside of a hard-cover leaf of a
reconstructed share register
of the company. The relevant portion of the false
affidavit is in the following terms -
"I hereby declare under oath that the Share Register, Transfer No 1, and the
following Share Certificates, in the above company, were
lost by me:-
CERT. No.
...........
7.
CERT NO
.
HOLDER THEREOF DATE OF ISSUE DISTINCTIVE NUMBERS
1
D J
SHALALA 21.12.54 1 - 30
2 J
SHALALA 21.12.54 31 - 60
3
A J
SHALALA 21.12.54 61 - 90
4
A J
SHALALA 6.10.59 1 - 30 "
On the strength of the
false affidavit a new share register was compiled and fresh share certificates
in the company were issued;
and pursuant to the minutes of the 5 Feb meeting
thirty shares in the company held by the applicant were transferred to the
transferees
in the propor= tion (29 shares to the appellant and 1 share to Hind
Shalala) therein indicated. On 26 February 1975 the appellant
signed a
Securities Transfer Form as the trans= feree of one share in the company from
Hind Shalala as the transferor; and in the
space provided for the signature of
the transferor the name "Hind Shalala" appears in signature form. To this
signature I shall refer
as "the forged signature". When the matter came before
the Court below, and according to the reconstructed share register, the
registered
8. registered shareholders in the company were the appellant
(sixty shares) and his present wife, the former Miss Nel (thirty shares).
It will be noticed that the false affidavit erroneously states both the
numbers of the original share certificates issued to the appellant
and the
applicant respectively, and the distinctive numbers of the shares respectively
allotted to each of them. However that may
be, the statements made in the false
affidavit are incorrect in a more fundamental respect. In truth the share
certificates in question
had not been lost by the appellant or by anybody else;
and on 7 February 197 4 all three certificates were in fact in possession
of the
applicant.
In March 1982 the applicant initiated motion proceedings in the Transvaal
Provincial Division against the company (which was cited
nominally as the first
respondent) and the appellant as the second respondent. In terms of
sec 115
9.
sec 115 of the Companies Act, No 61 of 1973, the applicant alleged that her
name had been removed from the company's register without
sufficient cause; and
she applied for rectification thereof. The áppellant resisted the
application.
The applicant's case, in a nutshell, was the following. During 1954 she and
her two brothers (Daniel and the appellant) agreed that
each would contribute E2
000 (R4 000) towards the purchase of a rural property ("the farm") in the
Klerksdorp district. To this end
the applicant paid R4 000 to Daniel from whom,
in due course, she received her original share certificate for 30 shares in the
company.
On 3 November 1963 the applicant lent the appellant R800, which loan
has since remained unpaid. At the time of the transaction and
"as proof of the
loan" the appellant gave the applicant a cheque for R800 and as security for
repayment
the
10.
the appellant handed over to the applicant the appellant's two share
certificates in respect of the remaining sixty shares in the
company.
Thereafter, so said the applicant, the appellant knew full well that his share
certificates were in the applicant's possession.
The applicant denied that she
had ever been a party to the transfer of her thirty shares to the appellant; and
she denied that the
appellant had paid her R2 000, or any other amount, in
respect thereof. In regard to the identity of the disputed signature on the
share transfer form the applicant adopted an ambivalent attitude. She contended,
in the main, that the disputed signature was not
hers. In the alternative she
adopted the stance that if the disputed signature were in truth her signature it
had been procured by
some fraudulent means. She was adamant that she had never
had the slightest intention of disposing of her thirty shares in the company.
The applicant went on to say that on
12 October
11.
12 October 1981 she made an inquiry concerning the farm of the accountant
Grobler whereupon the latter informed her that her shares
had been acquired by
the appellant. It is common cause that on 26 November 1981 attorneys acting on
behalf of the applicant addressed
separate letters to (1) the company (2)
Grobler's firm and (3) the appellant, each letter demanding rectification of the
company's
share register by the restoratión therein of the name of the
applicant as the registered shareholder of thirty shares.
The answering affidavits filed by the appellant in opposition to the
applicant's notice of motion raised certain disputes of fact.
On 20 October 1982
VAN DIJKHORST, J ordered that oral evidence be heard. The issues which were
referred to the trial Court for its
determination were formulated thus -
"2.1 die kwessie van
onus
;
2.2
die reg om te
begin;
2.3
die egtheid van die applikante se
handtekening op Aanhangsel "H" (the disputed signature of the
person
named
12.
named as transferor in the share transfer form),
alternatiewelik of dit op "n bedrieglike wyse verkry is;
2.4 of die uitreiking van die duplikaat Aandelesertifikaat op 'n bedrieglike
wyse verkry is al dan nie;
en gevolglik of die applikante geregtig is op die regshulp soos
aangevra."
In due course the matter came before
KIRK-COHEN, J. The hearing lasted ten days and involved
the testimony of
several witnesses. Having heard argument
the trial Court ruled that the
applicant had the right to
begin and that she bore the
onus
of proving
her case on a
balance of probability. In regard to the authenticity
or
otherwise of the disputed signature the trial Court
concluded that on a
balance of probability it was the
signature of the applicant; but that it had been "obtained"
by the
appellant "in a fraudulent manner". The trial Court
likewise concluded that the duplicate share register had been
procured in
a fraudulent fashion. In the result the trial
Court ruled that the applicant
was entitled to claim
rectification
13.
rectification of the company's share register. In regard to
costs KIRK-COHEN, J decided that these should be borne by the appellant
for two
reasons. First, the application had been resisted not by the company but by the
appellant. The second reason was considered
by the learned Judge to be the more
cogent one, and he stated it in the following words:
"The proceedings before me were lengthened inordinately by the numerous
falsehoods told by the second respondent. It took considerable
time for them to
be fully exposed and I take a very serious view of this aspect of the case as
will more fully appear from paragraph
3 of my order hereunder. As a mark of
censure I am of the view that, on this ground alone, the second respondent ought
to be ordered
to pay the costs which will include those reserved by my brother
VAN DIJKHORST and all of the costs involved in the ten day hearing
before me
including those incurred in the argument on the right to begin."
In the result KIRK-COHEN, J made the following orders in the Court below:
"1. That
14.
"1. That the share register of the first
respondent be rectified to record that:
1.1
the original allotment of
the applicant's 30 shares was made on the 14th day of March 1955 in terms of
certificate No. 3 with distinctive
numbers 61 to 90;
1.2
that the applicant has never trans= ferred the said shares to anyone
else;
2. That the secóhd respondent be
ordered to
pay the costs of these proceedings which will include those reserved on 20
October 1982 and those consequent upon the hearing of verbal
evidence before
me.
3. I request the Registrar to forward a copy
of this judgment to the
Attorney-General of
the Transvaal for his consideration of the
conduct of
the second respondent as set out
therein."
With leave of the Court
a quo
the appellant appeals against
the first and second orders abovementioned.
The essential parts of the applicant's case have already been noticed. In
brief the appellant's version came to the following. The
appellant denied that
he had borrowed R800 from the applicant but he admitted that she had gained
possession
15.
possession of his share certificates. His explanation was that such share
certificates and the company's original share register had
been handed over by
him to the appellant for safekeeping by her. On 5 February 1974 he bought the
applicant's thirty shares for R2
000, whereafter the applicant told him that she
had lost the documents earlier entrusted to her. The appellant telephoned
Grobler
to inform him of the loss of the share certificates and later the
appellant and the applicant proceeded to Grobler's office where
in the presence
of the appellant (but not Grobler) the applicant signed the transfer form.
Thereafter the applicant was paid R2 000
in cash and the appellant made the
false affidavit. The appellant maintained, however, that before he signed it he
showed the false
affidavit to the applicant and she agreed with its contents.
The appellant further testified that he had signed the minutes of the
5 Feb
meeting in Grobler's office after they had been considered by the applicant; and
that the applicant had likewise approved the
minutes, of the
meeting
16.
meeting held on 7 February 1974.
The crisp issue in the case was therefore whether the applicant had, with
deliberate intention, sold her thirty shares in the company
to the appellant, or
whether she was the unsuspecting dupe of a fraudulent scheme engineered by the
appellant. As the evidence in
the Court below unfolded, however, the scope of
the inquiry was considerably enlarged and several secondary factual disputes
were
explored. In the result there was, at the end of the evidence, much
material by reference to which the respective. credibilities
of the applicant
and the appellant could be tested. A few examples will suffice. One of the
secondary issues was . whether in 1954
the applicant had had the financial means
to make a contribution towards the purchase of the farm. The appellant contended
that the
applicant had not then had any money of her own and that in fact she
had contributed nothing towards the purchase of the farm. Another
subsidiary
issue
was
17.
was whether or not a partnership had ever subsisted between
the applicant and the appellant and, in connection therewith, whether
or not the
appellant had been guilty of fraudulent conduct in making income-tax returns to
the Receiver of Revenue; regarding which
the appellant in the course of his
evidence blew hot and cold in a most bewildering fashion, A further collateral
matter investigated
involved the appellant's assertion (firmly repudiated by the
applicant) that the appellant had sold to the applicant for R14 000
the business
known as the Skyline Tearoom. The appellant's claims was easily demonstrated to
be false because his witness Grobler
told the Court below that there was no
entry whatsoever in the financial statements either of the appellant or of the
applicant reflecting
such a Liability. Indeed, the evidence of Grobler
established that at the relevant time it was the appellant who owed the
applicant
a large sum of money. It is convenient, however, to pause here in
order to consider
briefly
18. briefly the tenor of the appellant's evidence affecting the
manner in which, according to him, it was sought to reduce the applicant's
debt
of Rl4 000. Such evidence not only affords some insight into the appellant's
business unorthodoxy but further provides an illustration
of the blatant
inconsistency which characterised much of his testimony in the Court below.
The applicant and the appellant were both clients of Volkskas Beperk at the
same branch of the bank in Klerksdorp While relations
between brother and sister
were still cordial it regularly happened that the appellant on his visits to.the
bank took with him the
takings from the applicant's business for depositing to
her account. It is common cause that in so doing the appellant from time
to time
deposited part of the applicant's takings to the credit not of her account but
to the credit of his own; and that during
the period 1967-1974 the appellant in
this fashion diverted a very substantial amount of the applicant's money to his
own account.
The
applicant's .
19.
applicant's evidence was that this was a systematic defalcation of which she
became aware for the first time in 1974. On the other
hand the appellant's
explanation was that such siphoning-off was the method adopted by him, at the
instance of the applicant herself,
in order to reduce the debt of R14 000 owed
to him by the applicant in respect of the purchase price of the Skyline Tearoom.
Dealing
with this part of the case the learned Judge thus summarised the effect
of the appellant's evidence:
"This system was that, on the original deposit slip, kept by the bank he (the
appellant) placed his own name and on the copy remaining
in the deposit book, he
inserted the name 'Skyline Store' in capital letters, writing the latter through
carbon paper in order to
induce the belief that it was a true copy of the
original. Where 'Skyline Store' was written in capital letters he took the money
but, where it was in ordinary handwriting script, this would be a genuine
deposit. This system he and the applicant operated until
1974. This subterfuge
was adopted to impress the applicant's present husband that she was a rich woman
(despite the fact that the
system commenced in 1967 and she
married
20.
married Iliev in 1970). According to the second
respondent (the appellant.) this system continued until Iliev came to know of
the
matter; this caused trouble and the second respondent went to Volkskas
Beperk who accepted his explanation. He admitted that the
amounts
of Rl 986,91 and R2 586,62 were
transferred from his account to the applicant's account as a result of her
complaint to the bank in regard to the alleged falsification
of the bank deposit
slips. He also admitted that he had paid her the sums of R2 000 and R3 000 in
addition as a repayment of the
alleged falsifica= tions but added that he did so
as the applicant's husband had forced her to demand repayment 'but she has
already
given me back some of the money'. Later in evidence he denied having
paid these latter two sums. In answer to a question in cross-examination
he
said:
'If I said I paid R2 000 and R3 000 I was mistaken.'"
To complete the picture it might be mentioned that no sooner
had the
appellant's explanation of a code based on the use of
capital letters been
effectively demolished in cross-
examination than the appellant proffered an
alternative (but
equally unacceptable) code involving alleged distortions
of
his signature on the deposit-slips involved. It is hardly
surprising
21.
surprising that in regard to the entire scheme for the
channelling of the applicant's money into his own bank account the Court below
came to the conclusion that the evidence of the appellant was a tissue of lies;
that he had in fact misappropriated these monies;
and that, when his theft was
discovered, the appellant repaid to the applicant the amounts deposed to by
her.
It is unnecessary to examine the testimony of the applicant and the appellant
in regard to the other collateral disputes of fact.
All the evidence in the case
was carefully dissected by the learned Judge in the course of a full and
thorough judgment. It suffices,
I consider, to notice the impressions gained by
the learned Judge of these two witnesses and recorded in the judgment of the
Court
a guo;
and to say that such impressions are fully borne out by a
reading of the record of the evidence.
The
22.
The learned Judge described the applicant as a garrulous and
impulsive witness with a tendency towards the theatrical who could be
devious
and, at times, evasive. The learned Judge nevertheless gained the distinct
impression that she was not a dishonest witness.
He remarked that although the
applicant was not a person of great intellect -
" the impression she made upon me was that
she was telling the truth. That she had no great love any longer for her
brother, was patent and, in making my assessment of her,
I never lost sight of
this fact."
The appellant struck the Court
a quo
as being a man of intelligence.
The learned Judge pointed out that on many and material points in the case the
version given in his
evidence by the appellant (who was represented by senior
counsel in the Court below) had not been put to the applicant in
cross-examination;
and that the appellant was often evasive to the point of
becoming incoherent. The learned Judge described the appellant as "a thoroughly
untrustworthy witness" and further observed of him:
"He
23.
"He lied on a number of occasions and, when his lies were
exposed, attempted to evade the issue by telling further lies and enmeshing
himself in a web of falsehoods
Despite his glib manner of answering I am of the view that the second
respondent was demon=
strated to be a dishonest person
His explanations of the reason why he made the false affidavit on 7 February
1974 are contradictory and unconvincing. His evidence
in regard to the events of
5 February 1974 is unimpressive and unconvincing and simply does not bear the
ring of truth. I make the
same observation in regard to the alleged concurrence
of the applicant in the minutes of the two meetings of the first
respondent."
Putting the evidence of the appellant in the scales against that of the
applicant the learned Judge was impelled to the following
conclusion:
"I do not believe him on any major issue except where his testimony is
supported by other acceptable evidence. When weighing up his
evidence against
that of the applicant there is no comparison."
At this juncture it is convenient to refer briefly to (1) the authenticity or
otherwise of the disputed
signature
24.
signature on the share transfer form; and (2) the authorship of the forged
signature on the Securities Transfer form dated 26 February
1975 purporting to
authorise the transfer of one share in the company from Hind Shalala to the
appellant. In the Court below a typewritten
report ("the Horley report")
prepared by a handwriting expert was handed in by consent "as evidence of the
contents thereof". The
. Horley report expressed the opinion that the disputed
signatur, was "probably" the signature of the applicant; but that the forged
signature was not the signature of Hind Shalala.
To round off this outline of the main evidence adduced in the Court below
mention should be made of two respects in which the evidence
of the applicant
conflicted with that of Grobler. The applicant testified that Grobler's
communication to her on 12 October 1981
was the first intimation to her by
anyone that her shares in the company had been transferred to the appellant.
According to Grobler,
however,
25.
however, the appellant had already on 28 September 1978
inquired of him who the shareholders in the company were. To this inquiry,
so
testified Grobler, he responded by telling the applicant that it was none of her
business. Grobler's testimony further lent some
support to the appellant's story
(firmly repudiated by the applicant) that on 5 February 1974 she had accompanied
the appellant to
the offices of Grobler. When testifying otherwise than in
relation to the financial statements of the applicant, the appellant and
the
company, Grobler's memory was shown to be defective in significant respects. In
regard to the events of 1974 the learned Judge
described Grobler's powers of
recollection as "appalling". In addition the learned Judge found that, affecting
the two issues just
mentioned, the evidence of Grobler was unimpressive and that
it betrayed a bias in favour of the appellant.
The way has now been cleared for a consideration of the main findings
recorded by the Court below in regard
to
26.
to the central issue of the alleged sale and transfer of the
shares by the applicant to the appellant. The learned Judge properly
approached
the case by looking at the evidence before him in its totality; and he
furthermore appreciated that should he reject the
evidence of the appellant and
Grobler on certain issues such rejection would not necessarily point to the
truth of the applicant's
version.
On the cardinal issue whether the appellant paid the applicant R2 000 for her
thirty shares the Court below found as a fact that the
appellant had paid the
applicant nothing either on 5 February 1974 or shortly thereafter. Dealing with
the appellant's contention
that before he signed the false affidavit he had
shown it to the applicant, and that the latter agreed with its contents, the
learned
Judge remarked in his judgment:
"This would be incredible if she was in possession of the shares at that
stage. If, of course, she had lost them it is possible that
she would have read
the affidavit without demur, but why should he have bothered to show it to her,
and why should she have agreed
to
his
27. his making a false statement 'lost by me'?"
Appraising the probabilities the learned Judge pointed out that at the time
of the false affidavit the appellant was success= fully
"manipulating his sister
and her bank deposits", and then observed:
"If he knew that his sister would not surrender the shares or if he wished to
circumvent her by having new shares registered then,
on the probabilities, a
dishonest man would set about acquiring the shares (which he regarded as his) by
alleging they were lost.
There exists no other acceptable inference why the
second respondent should have deposed to a false affidavit. I find this to be
the case
in casu
."
The Court below concluded that the false affidavit:
" was part of a scheme by him (the
appellant) to obtain shares from the applicant to which he considered she was
not entitled as she was in his eyes a mere nominee."
Concerning the disputed signature on the share transfer form the learned
Judge held, on the probabilities, that this was in fact the
signature of the
applicant; and that she affixed her signature to the document:
" not
28.
" not before but, on the probabilities,
on 5 February 1974."
The Court below found as a fact that the appellant
procured
the signature of the applicant to the share transfer form
"by some false pretence" and "in a fraudulent manner". No
finding was made
as to the particular strategem employed by
the appellant in so obtaining the
applicant's signature, and
the learned Judge could do no more than to
speculate on the
probability that if the appellant wished to act dishonestly
-
" he would place a document before her
requesting her to sign it in her business name and that she would have done
so without reading it. She trusted her brother at that
stage; he knew of this
fact and, because of this trust, he was then busy misappropriating money from
her bank deposits by falsifying
the original deposit slips."
Dealing with the company's minute book the Court
a guo
found
in relation to the 5 Feb meeting -
" that the minutes are an unilateral
declaration by the second respondent; that no such meeting was held and that
the applicant did not agree to sell or transfer her shares
as set out
therein."
Similarly
29.
Similarly in regard to the minutes of the alleged meeting on 7
February 1974 the learned Judge accepted the applicant's version that
these
minutes had never been shown to her, and
he described them as "an unilateral
document merely
prepared as a matter of form" to give effect to the
appellant's plan to obtain the applicant's shares.
Elaborate heads of argument were filed on behalf of the appellant by the
senior counsel who had appeared for him in the Court below.
In this Court the
appellant was represented by Mr
Ettlinger
who confined his argument to
two main submissions set forth in his own (and commendably brief) addendum to
the heads of argument.
It should be pointed out at once that the appellant's
original heads of argument disavowed any challenge of the validity of the
distinctly
unfavourable credibility findings against the appellant recorded in
the judgment of the Court below. In the course of his argument
Mr
Ettlinger
, wisely I think, did not try to persuade us that the learned
Judge's assessment of the
appellant's ......
30.
appellant's demerits as a witness were open to criticism.
The first contention advanced on the appellant's behalf was that both (a) the
nature of the lay-out of the share transfer form and
(b) the short period of
time available to the appellant in which "to concoct a pretence" militated
against the conclusion of the
Court below that the appellant had procured the
signature of the applicant to the document in question by some or other false
pretence.
As to (b) it is enough to say that the sufficiency of the time
available to the appellant on 5 February 1974 to obtain the applicant's
signature was not a matter investigated at all in the evidence. Nor in my
opinion, is the argument based on factor (a) a particularly
cogent one. The
portrait' of the appellant which emerges from the evidence in this case is one
of a plausible and resourceful rogue
who in February 1974 was exploiting the
misplaced trust which his sister had reposed in him. I am not persuaded that it
would have
unduly taxed his ingenuity to
gull
31.
gull the applicant into signing the share transfer form
by
cloaking and misrepresenting the true nature of the document
in
question.
Mt
Ettlinger
's second contention comes to the following. Recognising
the transparent falsity of the appellant's story that he in fact paid the
applicant R2 000 as the consideration for her shares, counsel seeks to persuade
us that upon a proper analysis of the evidence we
should conclude that
originally the applicant paid nothing for the shares. That conclusion, so the
argument proceeds, permits as
a natural and plausible inference that the
applicant might have been quite content to transfer her shares to the appellant
for no
consideration. There are, I consider, a number of insuperable
difficulties in the way of this argument. It is necessary here to mention
only
three. The.first is that no good reason exists for disbelieving the evidence of
the applicant that the shares were issued to
her in 1955 in return for a capital
contribution of R4 000 made by her towards the
purchase
32.
purchase of the farm. The second difficulty is that it was never suggested to
the applicant in cross-examination that she had donated
the shares to the
appellant. There was, of course, hardly room for such a suggestion. The
cornerstone of the appellant's case in
the Court below was that the applicant
had offered the shares for sale to the appellant because she was short of money,
and that
the appellant had bought the shares from her. The third difficulty is
that the argument overlooks the reason which prompted the appellant
to pretend
that he had bought the shares. He so falsely pretended because he knew only too
well that the applicant would never consider
parting with her shares for
nothing.
This is an appeal purely on fact. No misdirec= tion on fact in the judgment
of the Court
a quo
has been shown. So far from being convinced that the
conclusion at which the learned Judge arrived at the end of a very careful
judgment
was wrong it seems to me that it was entirely correct.
follows
33. follows that the appeal must fail.
Two further matters require brief attention. Despite the fact that no leave
to cross-appeal was sought by or granted to the applicant
there was nevertheless
filed on her behalf a cross-appeal against "portion of the judgment of the Court
below." It relates to a subordinate
finding of fact. It is common cause that the
cross-appeal is irregular and that it should be struck off with costs. The
appeal record
lodged with the registrar of this Court runs to 33 volumes. Of the
record so lodged 16 volumes were wholly unnecessary for the hearing
of the
appeal and a further 3 volumes to some extent contained unnecessary matter. The
superfluous portions of the appeal record
are set forth in a schedule appended
to a letter dated 24 July 1986 from the appellant's Johannesburg attorney to his
Bloemfontein
correspondent, a copy of which letter was served upon the
registrar. The fact that the appeal record was thus unnecessarily burdened
requires a special order in regard to
the
34.
the matter of the costs of the appeal.
The following orders are made:-
(1)
The appeal is dismissed
with costs including the costs of two counsel. Such costs will, however, not
include, either as between party
and party or as between attorney and client,
any perusal fee in respect of the superfluous portions of the
record.
(2)
As between attorney and client the
appellant's attorneys will not be entitled to charge any perusal fee in respect
of the superfluous
portions of the record.
(3)
The cross-appeal is struck off with
costs.
G G HOEXTER, JA
JOUBERT, JA )
GROSSKOPF, JA )
Concur VIVIER, JA )
STEYN, AJA )