Elgoni v El-Shahir (41/2003) [2005] ZAFSHC 124 (5 May 2005)

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[2005] ZAFSHC 124
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Elgoni v El-Shahir (41/2003) [2005] ZAFSHC 124 (5 May 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: 41/2003
In
the case between:
DR. A
ELGONI
Plaintiff
and
ALI
EL-SHAHIR
Defendant
_____________________________________________________
HEARD ON:
25 APRIL 2005
CORAM:
BECKLEY
et
CILLIé JJ
JUDGEMENT:
BECKLEY J
_____________________________________________________
DELIVERED ON:
5
MAY 2005
_____________________________________________________
[1] In this matter a
dispute exists between the parties as to whether the plaintiff
entrusted 30 000 US dollars, as alleged by the
plaintiff, or 20 000
US dollars, as alleged by the defendant, with the defendant for safe
keeping. The court
a
quo
found that 30 000 US dollars were entrusted to with the defendant and
gave judgment for the balance owing, namely 10 000 US dollars.
This
appeal is directed at this finding of the magistrate in the court
a
quo
.
The parties are referred to herein as plaintiff and defendant.
[2] The court
a
quo
fully dealt with the evidence that was tendered at the trial and I do
not propose repeating the evidence herein. The only question
to be
decided is whether the court
a
quo
was
correct in giving judgement for the balance of 10 000 US dollars of
whether is should have absolved the defendant from paying
the balance
of 10 000 US dollars.
[3] Mr. Reynders, on
behalf of the defendant, conceded that the version of the plaintiff
was not inherently improbable in any respect
and I respectfully agree
with that submission. The defendant’s version, however, contains a
number of inherent probabilities,
inter
alia
the following:
a. According to the
defendant, the plaintiff was in dire straits and that the financial
hardship of the plaintiff was the reason why
he decided to “give
charity” to the plaintiff and, in particular, to pay him an amount
of R2 000.00. It is common cause that
the plaintiff entrusted at
least 20 000 US dollars with the defendant. It follows to my mind
that, on these facts, it cannot be
said that the plaintiff was in
need of financial assistance.
b. The fact that the
defendant offered to provide the plaintiff with a cellphone, does not
indicate that the plaintiff was financially
handicapped, having
regard to the fact that it was common cause at the trial that the
plaintiff had, at the relevant time, not yet
obtained a residential
permit, could therefore not open a bank account, and could therefore
not meet the requirement of a bank account,
being one of the terms
required by Vodacom as a service provider for a cellphone.
c. The plaintiff’s
undisputed evidence was that, when the parties met with other members
of the family, the defendant agreed to
pay the 10 000 US dollars in
instalments of R2 000,00 and that he, the plaintiff, insisted that
the undertaking be reduced to writing.
The defendant testified that
the R2 000,00 cheque was given in favour of the plaintiff as charity,
and not as partial repayment
of the 10 000 US dollars. It is
inherently improbable to my mind that the plaintiff would insist on a
written agreement if the R2
000,00 payment in his favour was paid as
charity, and not as part payment of the 10 000 US dollars.
d. At the time when the
R2 000,00 was paid, the defendant suspected that the plaintiff was
trying to cheat him by falsely alleging
that there was still an
amount of 10 000 US dollars outstanding. It is inherently improbable
that the defendant would be prepared
to pay an amount of R2 000,00 as
charity to the very person who was trying to cheat him.
e. Mr. Reynders, on
behalf of the defendant, conceded in this Court, and correctly so,
that it is unlikely that the plaintiff made
a
bona
fide
error when he told the defendant that he had deposited 30 000 US
dollars and that it was more probable that the plaintiff claimed
the
additional 10 000 US dollars whilst he knew that the amount that he
had deposited with the defendant had been repaid in full.
Under
those circumstances, it is unlikely that the plaintiff would have
politely and courteously suggested
“
No, I think I remember I give you
30 000.”
It is more probable, to
my mind, that he would have been more aggressive and demanding.
[4] Having regard to the
improbable aspects that have been referred to above, I am satisfied
that the version of the defendant is
so improbable that it can safely
be rejected and that the court
a
quo
correctly found that the plaintiff must succeed. In the result the
appeal is dismissed with costs.
_______________
A.P. BECKLEY, J
I concur.
____________
C.B.
CILLIé, J
On behalf of
plaintiff: Adv. S. Reynders
Instructed by:
Kramer Weihmann &
Joubert
BLOEMFONTEIN
On behalf of
defendant: Adv. J.J. Teesen
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/em