Denissova N.O. v Heyns Helicopters (PTY) Ltd (5875/02) [2003] ZAWCHC 44; [2003] 4 All SA 74 (C) (4 September 2003)

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[2003] ZAWCHC 44
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Denissova N.O. v Heyns Helicopters (PTY) Ltd (5875/02) [2003] ZAWCHC 44; [2003] 4 All SA 74 (C) (4 September 2003)

IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO:
5875/02
In
the matter between
OLGA
ALEXSEEVNA DENISSOVA N.O.
Plaintiff
and
HEYNS HELICOPTERS (PTY) LTD
Defendant
JUDGMENT
DELIVERED ON 4 SEPTEMBER 2003
YEKISO,
J
[1] The
issue which calls for determination at this stage of the proceedings
is whether the oral agreement, inclusive of the material
terms
thereof, is enforceable in the light of the non-variation and
non-waiver clause contained in a written acknowledgement of debt.

The oral agreement itself is in dispute. It is thus necessary, in
the first instance, to determine if the oral agreement itself
was
concluded, and if so, whether the alleged oral agreement is
enforceable in the light of the non-variation and non-waiver clauses.
[2] The
material terms of the alleged oral agreement are that Plaintiff, with
full knowledge of her rights, waived all claims in favour
of her late
husband’s estate against the Defendant whilst the Defendant, on the
other hand, with full knowledge of its rights,
waived all claims it
had against the estate of Plaintiff’s deceased husband.
[3] The acknowledgement of debt
referred to in paragraph [1] is the basis of an action for recovery
of an amount of R 553,318.56,
being the balance of an amount due and
payable by the Defendant to Plaintiff in her capacity as the
executrix in her deceased husband’s
estate, one Andrei
Vladimirovitch Denissov (who I shall hereafter refer to as
“Denissov”) who died as a result of a motor vehicle
accident on 7
October 1999.
[4] Plaintiff is the surviving spouse
of the late Denissov and act in these proceedings in her capacity as
the executrix in the estate
of her deceased husband referred to in
paragraph [3] above. The Defendant, on the other hand, is a company
with limited liability
incorporated in terms of the Companies Act, 61
of 1973 having its registered office and principal place of business
at 4 Cedar Avenue,
Heatherlands, George, Western Cape. The
Defendant is represented in these proceedings by Martin Michael
Steynberg who is the director
and the chief executive officer in the
Defendant company, and who I shall hereafter simply refer to as
Steynberg. The Defendant
has business interests and also carries on
business at Nelspruit in the province of Mpumalanga.
[5] The acknowledgement of debt
already referred was concluded at George on 12 August 1999. In terms
thereof, the Defendant, duly
represented by Steynberg acknowledged
its indebtedness to Plaintiff’s deceased husband in an amount of
R 646,737.00 being in respect of
monies lent and advanced, salaries and rentals due and payable. The
whole amount due ought to have
been payable in seven equal
instalments, the last of which such instalment would have been on the
last day of February 2000. Only
three payments were made in terms of
the acknowledgement of debt. No further payments were made as, in
the view of Steynberg, the
Defendant had a claim against the estate
of Denissov in an amount far in excess of the balance outstanding in
terms of the acknowledge
of debt. The first such payments was on 6
August 1999, followed by two further payments during August and
September 1999 leaving
a balance outstanding allegedly due and
payable in an amount of R 553,318.56.
[6] On
2 August 2002 Plaintiff issued a summons out of this Court for
recovery of the aforesaid amount of R 553,318.56. After service
of
the summons on it, the Defendant duly entered an appearance to
defend. Thereafter there was filed on behalf of Plaintiff an
Application for summary judgment which the Defendant successfully
opposed. Defendant subsequently filed its Plea and Counterclaim.

In its Plea, the Defendant, amongst other things, pleaded an oral
agreement I have already referred to in paragraph [1] above,
and
which oral agreement is disputed by Plaintiff in her Plea to the
Defendant’s Counterclaim.
[7] Paragraph
5.3.8 and 5.3.9 of the Defendant’s Plea to Plaintiff’s
Particulars of Claim, which is incorporated in the Defendant’s
Counterclaim, reads as follows:
“
5.3.8 Op of omtrent 21 Maart 2001 en by die
Johannesburgse Internasionale Lughawe, Gauteng, het Eiseres,
handelende in haar hoedanigheid
as eksekutrise van die bestorwe
boedel van die oorledene, en Martin Michael Steynberg, handelende
namens die Verweerder, ‘n mondelinge
ooreenkoms aangegaan, die
wesenlike terme waarvan as volg is:
Eiseres
het, met volle kennis van haar regte,
afstand
gedoen
van alle eise wat die bestorwe
boedel van die oorledene teen die Verweerder het
vooruitspruitende uit die voormelde skuldbewys.
Steynberg
het, met volle kennis van Verweerder se regte,
afstand
gedoen
van alle eise, en in besonder die
eise vir betaling van die voormelde bedrae van US$400,000-00,
US$2,749,598-00 en R 3,580,000-00,
wat die Verweerder teen die
oorledene se bestorwe boedel het.
Uit
die hoofde van die voorafgaande is daar gevolglik geen bedrag deur
die Verweerder aan Eiseres in haar verteenwoordigende
hoedanigheid
verskulding kragtens die gemelde skuldbewys nie.”
(The
underlinings are mine)
[8] Plaintiff in turn, filed a Plea to Defendant’s Counterclaim
wherein she, apart from pleading prescription to the Defendant’s
various other categories of claims set out in Defendant’s
Counterclaim, places the conclusion of the oral agreement allegedly
entered
into between her and the Defendant in dispute.
[9] At the commencement of the hearing of this matter it was agreed
between the parties that a matter of the alleged oral agreement,
inclusive of the material terms thereof alleged and set out in
paragraphs 5.3.8 and 5.3.9 of the Defendant’s Plea first be
adjudicated
upon and that other issues raised in the pleadings be
adjudicated and determined at a later stage, if need be. In terms
of Rule
33(4) I ordered the separation of the issues as agreed
between the parties.
[10] The chronological sequence of events preceding the institution
of these proceedings is set out in the evidence by Steynberg
who
testified for the Defendant. The salient features of Steynberg’s
evidence in chief are that he became associated with the
Defendant
during February 1999, initially as an adviser; he became a director
in the Defendant company on 9 April 1999; he currently
is the
Chairman and a Chief Executive Officer of Heyns Helicopters, a
holding company of the Defendant and that the main core of
the
Defendant’s business activity is the provision of aviation
services.
[11] There was at the time a lease agreement between the Defendant
and a Russian based company known as Joint Stock Company
Tuymenaviatrans
Air (which I shall hereafter refer to as “Tuymen”).
In terms of the lease agreement the Defendant leased from Tuymen
several
M18 helicopters. Plaintiff’s deceased husband, Denissov,
was a co-director of the Defendant company at the time; he resigned
from
this position towards the end of April 1999; Denissov was the
South African agent of Tuymen and also a representative of the
Federal
Aviation Authority of Russia at the Civil Aviation Authority
of South Africa.
[12] As a co-director and the employee of the Defendant, it was the
duty of Denissov to liaise with Tuymen; he was responsible for
the
purchase of spare parts for the fleet of helicopters, maintenance
inspections thereof, the insurance of the fleet and the acceptance
of
insurance premiums for onward transmission to the insurance company,
also based in Russia.
[13] On 9 February 1999 one of the helicopters was involved in an
accident in Cape Town; in this accident a Russian national who
was
piloting the aircraft at the time died; few days before this accident
occurred there was addressed a letter to the Russian based
insurance
company cancelling the insurance contract, so that when the accident
occurred the aircraft in question had no insurance
cover; the letter
in question, dated 6 February 1999 purported to have been written by
one Louis Venter who was a general manager
in the Defendant company
at the time; Venter, on the other hand, denied having been the author
of the letter of cancellation of insurance;
whoever wrote the letter
cancelling the insurance had no authority to do so and did so without
the knowledge of management of the
Defendant firm. There was
suspicion at the time that Denissov had forged the signature on the
letter of cancellation, that the premiums
arising from the
cancellation of insurance were refunded to Denissov and that he was
responsible for the cancellation of the insurance
cover in respect of
the aircrafts. Tuymen, as the owner of the damaged aircraft, was
holding the Defendant liable for the damaged
aircraft and a claim in
an amount of US$ 400,000.00 was contemplated against the Defendant.
[14] The fleet of helicopters leased from Tuymen was delivered in
1992. Steynberg testified that in terms of the Russian production
system an aircraft has a calendar life extending over a period of six
years or 3000 flying hours reckoned from the date of production,
which ever period first expires, whereafter the Certificate of
Airworthiness issued in respect of each such aircraft expires; The
Certificate of Airworthiness could only be extended or re-issued
after due performance of an inspection on that particular aircraft.

Such inspection could only be carried out by the manufacturers who
happened to be the same company as the lessors, Tuymen. It appears
that the calendar life of the remaining aircrafts had expired.
Denissov informed the South African Civil Aviation Authority of this
fact resulting in the Certificates of Airworthiness in respect of all
the remaining aircrafts being withdrawn, rendering the Defendant
unable to fly the aircrafts. The required inspection would have to
be carried out by Russian personnel which, in turn, would have
to be
flown into the country at the Defendant’s expense. Denissov, as a
liaison person between the Defendant and Tuymen, was
responsible for
the travel arrangements of the inspectors into the country.
Denissov was not prepared to arrange for the inspectors
to be flown
in not until the Defendant would have settled various amounts owed to
him which he, at that stage, estimated to have
been in an amount of R
3 million, being in respect of remuneration owing to him and certain
travelling expenses. In the meantime
the remaining aircrafts were
grounded causing the Defendant to lose millions of rands in
contracts.
[15] Negotiations between the Defendant and Denissov ensued.
Denissov was prepared to arrange for the inspection of the aircrafts
on condition that the Defendant signs an acknowledgement of debt in
his favour as security for payment of amounts owing to him.
Only on
this condition was he prepared to have the inspection personnel flown
in; have the aircrafts inspected in order to have the
calendar life
of the remaining aircrafts extended. Once the inspection would have
been carried out, only then would the Civil Aviation
Authority
re-issue the Certificates of Airworthiness. The aircrafts were
subsequently inspected and the required Certificates of
Airworthiness
were re-issued. The required acknowledgement of debt was signed on
12 August 1999. Denissov subsequently died as
a result of a motor
vehicle accident on 9 October 1999. Shortly before the death of
Denissov the Defendant, through Steynberg, had
taken certain issues
with him. These issues related to the liability of the Defendant
arising from the damaged aircraft, loss of
revenue as a result of
withdrawal of Certificates of Airworthiness and certain travelling
expenses which Denissov claimed were due
to him. Steynberg had
undertaken certain investigations and discovered that certain claims
which Denissov claimed from the Defendant
were not justified.
[16] As
at death of Denissov, the issues referred to in the preceding
paragraph still remained unresolved. Steynberg raised these
issues
with the Plaintiff, who in the meantime had been appointed the
executrix in her deceased husband’s estate. Steynberg held
two
meetings with Plaintiff, the first such meeting having been in
Johannesburg on 3 November 2000. The second and the last meeting
was
held at the Holiday Inn, Johannesburg International Airport on 21
March 2001. At this last meeting, according to Steynberg’s
evidence, the issues under discussion, which comprised the
Defendant’s contemplated claim against the deceased estate and the
claim
the estate had against the Defendant, based as it is on the
acknowledgement of debt, were settled on the basis that the parties
would
waive their respective claims, thereby releasing one another
from their respective obligations. I am using the term “waive”
in a generic sense as Mr Kirk-Cohen, who appeared for the Defendant,
had in his opening address contended that the alleged oral agreement
not be construed as a waiver agreement but rather as an agreement
between the parties having the effect of terminating the parties’
respective obligations. I am thus by no means making a finding at
this stage as to whether or not the alleged oral agreement entered
into between the parties is a waiver agreement.
This, in a nutshell, is the evidence tendered on behalf of the
Defendant. Plaintiff closed her case and elected not to testify
so
that the issues in dispute will be determined on basis of evidence by
Steynberg, both in chief and under cross-examination over
and above
the other evidential material admitted by the parties.
[17] The acknowledge of debt referred to in Plaintiff’s Particulars
of Claim contains a non-variation clause which reads as follows
in
the penultimate paragraph at p6 thereof:
“
This
Acknowledgement of Debt constitutes and comprises the whole of the
agreement between the COMPANY and the CREDITORS in respect
of the
indebtedness referred to herein and no variation of any sort thereof
will be binding on either the COMPANY or the CREDITORS
unless reduced
to writing and signed by both the COMPANY and the CREDITORS or their
representatives.”
[18] Further, the acknowledgement of debt, in a paragraph immediately
following the variation clause, contains a non-waiver clause
which
reads as follows:
“
No
waiver of any rights of the CREDITORS, whether under law or in terms
of this Acknowledgement of Debt shall be binding on the CREDITORS
or
any one of them unless such waiver is reduced to writing and signed
by all the CREDITORS.”
[19] In
paragraph 5.3.8 of its Plea, the Defendant, in effect, pleads an oral
agreement entered into at the Holiday Inn, Johannesburg
International
Airport on 21 March 2001 the material terms whereof are that
Plaintiff, in her representative capacity, and with full
knowledge of
her rights, waives all claims her deceased husband’s estate has
against the Defendant in terms of the acknowledgement
of debt whilst
the Defendant, on the other hand, represented by Steynberg, and with
full knowledge of its rights, waives all claims
the Defendant has
against the estate of Denissov in amounts referred to in paragraph
5.3.8.2 of the Defendant’s Plea.
[20] At
the cost of repeating myself, the issues that call for determination
and reserved for separate adjudication are:
1 Whether
an oral agreement was entered into between the parties incorporating
the terms contained in paragraphs 5.3.8.1 and 5.3.8.2
of the
Defendant’s Plea; and
2
If so, what the effect of such an oral agreement is in the light of
the non-variation and non-waiver clauses contained in the
acknowledgement of debt.
I have already made a point that the Plaintiff, in her Plea to the
Defendant’s Counterclaim disputes the oral agreement which the
Defendant alleges it concluded with Plaintiff as also the material
terms thereof. If I find that the oral agreement was concluded,
as
Defendant alleges in its Plea and Counterclaim, the next issue I am
asked to determine is whether the alleged oral agreement is
enforceable in the light of the non-variation and a non-waiver
clause.
I
shall now consider these issues in turn.
[21] In
terms of paragraphs 16.3 and 16.4 of the Pre-Trial Minute it was
agreed between the parties that the Defendant bears the
onus
of proof in respect of the allegations contained in paragraph 5.3.8
of the Defendant’s Plea and also the duty to begin to give
evidence, hence the Defendant having tendered evidence first.
[22] The
oral agreement relied upon by the Defendant is alleged to have been
concluded at the Holiday Inn, Johannesburg International
Airport on
21 March 2001. Steynberg in his evidence in chief, could not recall
at whose instance this meeting was except to say
he happened to have
been in Johannesburg when he had a telephonic conversation with
Plaintiff and, arising out of that conversation,
an arrangement was
made for them to meet at the Holiday Inn, Johannesburg International
Airport the following day which would have
been 21 March 2001. It
appears that the purpose of the meeting pertained to the forensic
report by a handwriting expert as regards
whether the letter of
cancellation of insurance of the fleet of aircrafts was signed by the
deceased, the late Denissov. According
to Steynberg, a matter of the
acknowledgement of debt was raised for the first time at this meeting
and was not raised at all at
the previous meeting held on 3 November
2000.
[23] Steynberg
met the Plaintiff on the 21 March 2001 as arranged. He is not
certain precisely what time the meeting started except
that it was
after he had met a Mr Kebill who he had met for about an hour prior
to his meeting with Plaintiff. They had met in
the reception area
of the hotel and at an area specifically provided for the kind of
consultation he had with the Plaintiff. Matters
discussed ranged
from Plaintiff’s family, how the winding up of her deceased
husband’s estate was progressing and eventually
the forensic report
relating to the disputed signature on the letter of cancellation of
insurance, purportedly signed by one Venter
but which Steynberg
suspected to have been signed by Denissov. The Plaintiff had the
forensic report with her but, according to
Steynberg’s evidence in
chief, Plaintiff did not want to give it to him to have a look at.
Steynberg did not see the report
itself but could see the paper
containing the report. Plaintiff had it on her lap according to
Steynberg. She mentioned to Steynberg
that the report exonerated
her late husband from blame and, in particular, that the disputed
signature on the letter of cancellation
was not that of her late
husband.
[24] Ultimately the matter of the acknowledgement of debt came up for
discussion. Steynberg mentioned to the Plaintiff that the
Defendant
faced a substantial claim from Tuymen arising from the non-insurance
of the aircraft involved in an accident in Cape Town;
that this claim
amounted to US$ 400,000.00; that the Defendant, in turn, intended to
claim this amount from the estate; that this
claim, together with a
further claim, still to be quantified, in respect of loss of revenue
arising from the withdrawal of Certificates
of Airworthiness in
respect of the remaining aircrafts for the period May 1999 up to the
beginning of July 1999, far exceeded Plaintiff’s
claim against the
Defendant in terms of the acknowledgment of debt. Steynberg
estimated the claim in respect of loss of revenue
to be in the
approximate amount of R 3 million. Steynberg went on further to say
that the Defendant is in business, that it can
survive but it would
make sense if the matter of the parties’ respective claims were to
be resolved on the basis that
“We (the Defendant)
won’t claim against her(the Plaintiff in her representative
capacity) if she does not claim against us”
to put it in
the words used by Steynberg in his evidence. According to
Steynberg, Plaintiff’s reaction was she had to accept
the proposal
as she did not want to waste money on litigation. The discussion
then proceeded to the Russian crew who died in an
aircraft accident
in Cape Town and, after a brief discussion of the latter issue,
according to Steynberg’s evidence, the parties
departed on a good
footing and he was clearly under the impression that they had reached
consensus
in as far as the matter of the parties’ respective
claims are concerned.
[25] Subsequent
to this meeting there was no communication between Steynberg and
Plaintiff until a letter of demand from Plaintiff’s
Attorneys
addressed to the Defendant dated 28 January 2002, and a further
letter dated 11 February 2002 threatening proceedings by
way of
summons if no response to the demand was forthcoming.
[26] This,
in broad terms, is a summary of Steynberg’s evidence in chief.
Under cross-examination Steynberg confirmed that the
meeting held at
the Holiday Inn on 21 March 2001 was at the instance of Plaintiff.
It was a follow-up meeting to the initial meeting
held at a coffee
bar, also in Johannesburg, on 3 November 2000 at which meeting,
amongst other issues under discussion, was a matter
of a letter of
cancellation of the insurance cover in respect of the fleet. There
was then a strong suspicion that Denissov may
have engineered the
cancellation of the insurance contract and that, in doing so,
Denissov may have forged the signature of Venter
who, at the time of
the cancellation of the insurance contract, was the general manager
in the Defendant company. Venter had by
then already deposed an
Affidavit denying knowledge of the signature in the letter of
cancellation and, in particular, denying that
the signature appearing
in the letter of cancellation was his signature. Arising from this
discussion, Plaintiff had undertaken
to have the disputed signature
analysed by a handwriting expert. Plaintiff had further undertaken
to revert to Steynberg as soon
as she would have been furnished with
the forensic report relating to the disputed signature.
[27] Steynberg,
so it further emerged in his evidence under cross-examination, had
furnished Plaintiff with the documentation containing
the disputed
signature as also the specimen signature of Venter, and, in all
probability, although not specifically mentioned in
evidence, the
specimen signature of the late Denissov for analysis by the
handwriting expert.
[28] During early March 2001, Plaintiff had been furnished, and was
in possession of the report by the handwriting experts. The
opinion based on this report is that
“a real
possibility exists that the writer of the Denissov collected specimen
writing signatures is not the writer of the dispelled
signature on
the (cancellation) document.”
The opinion further goes on
to indicate that
“a real possibility does exist that
the writer of the L J Venter collected specimen signatures, initials,
is also writer of the
disputed signature on the (cancellation)
document.”
It was put to Steynberg that, based on this
report, Plaintiff’s state of mind at the time the second meeting
was held was that
her husband, the late Denissov, did not sign the
letter of cancellation to which statement Steynberg readily conceded.
[29] In
his evidence in chief, Steynberg testified that Plaintiff had a piece
of paper with her. This he saw as Plaintiff had this
piece of paper
on her lap. It later transpired that the piece of paper he is
referring to contained the forensic report referred
to in the
preceding paragraph. He did not see the report. She did not want
to give it to him and instead suggested to Steynberg
he obtains his
own report. Steynberg goes further to say all that Plaintiff said to
him was that the report exonerated her husband
from blame. But under
cross-examination it emerged that Plaintiff did show the report to
Steynberg particularly the portion of the
report containing an
opinion exonerating Plaintiff’s deceased husband from blame. The
portion of the report which Plaintiff concealed
from Steynberg is the
one which seeks to incriminate Venter.
[30]
Mr
Du Plessis
, who appeared for Plaintiff, put it to Steynberg that
shortly after Plaintiff had shown him the report, she demanded
payment of the
amount due in terms of the acknowledgment of debt to
which statement Steynberg conceded except to say Plaintiff made no
reference
to the acknowledgement of debt when demanding payment.
Mr Du Plessis
further put it to Steynberg that after
Plaintiff demanded payment he (Steynberg) offered half the amount
due in full and final
settlement, that Plaintiff seriously considered
this offer, but would have required collateral security, and in this
regard Plaintiff
had suggested the hangar in Nelspruit as a form of
security. Steynberg denied having made the offer as suggested but
admitted the
discussion about the hangar in Nelspruit. It was
further put to Steynberg that when a discussion about collateral
security came
up, Steynberg mentioned the hangar in Nelspruit, to
which statement Steynberg conceded except to say that no reference
was made to
the word “security”. Further, it was put to
Steynberg that whilst the discussion revolved around the hangar in
Nelspruit as
a form of security, Steynberg intimated to Plaintiff
that he was not the only director in the Defendant company, that he
would have
to consult with his co-directors as regards the hangar in
Nelspruit and would revert to Plaintiff after he would have consulted
his
co-directors. As regards the latter statement, Steynberg’s
response was that whilst he cannot recall the details of this aspect
of the discussion, he nonetheless conceded that he could have said
something to that effect.
Mr Du Plessis
finally put it to
Steynberg that Plaintiff denies having concluded the oral agreement
as contended by Steynberg and that, as far
as Plaintiff is concerned,
the main purpose of the meeting held at the Holiday Inn, Johannesburg
International Airport on 21 March
2001 was to prove her husband’s
innocence, which statement Steynberg denied.
[31] What
emerges from Steynberg’s evidence under cross-examination as
regards the meeting of 21 March 2001 is a totally different
picture
to the one portrayed in his evidence in chief. Whereas in his
evidence in chief it would seem Steynberg had not had sight
of the
forensic report Plaintiff had in her possession, under
cross-examination it appears that he was shown this report except the
portion of the report which implicates Venter. In his evidence in
chief one gets the impression that Plaintiff had this report
on her
lap all the time and did not give it to Steynberg, yet under
cross-examination this does not appear to be so. No mention
was made
in evidence in chief of the discussion regarding the hangar in
Nelspruit and a need to consult with co-directors. I shall
further
deal with this aspect of Steynberg’s evidence later in this
judgment.
[32] As
has already been pointed out Plaintiff did not testify and elected to
close her case so that, in the first instance, I shall
have to
determine whether the Defendant has made a strong
prima facie
case which entitles me to drawn an adverse inference against
Plaintiff arising from failure by Plaintiff to testify.
[33] What
I have before me, for purposes of making the required determination,
is the uncontested evidence of Steynberg which would
normally, in the
absence of any contradictory evidence, be accepted as being
prima
facie
true. It does not, however, follow that because evidence
is uncontested, therefore, it is true. The evidence may be so
improbable
in the light of all the other evidence that it cannot be
accepted [See in this regard
Meyer v Kirner 1974(4) SA 90
(N)
at
93 G-H
]. The fact that evidence stands uncontradicted
does not relieve the party from the obligation to discharge the
onus
resting on him. [See
Minister of Justice v Seametso 1963(3) SA
530
(AD)
at
534 G-H
]. In civil matters the
onus
is discharged upon a balance of probabilities but, no doubt, this
simplistic statement must be used with caution since, even if the
onus
-bearing party puts into his ‘pan of the scale of
probability’ slender evidence, as against no counter-balance on the
part of
the opponent, and although the scale should therefore
automatically go down on the side of the
onus-
bearing party,
the Court may still hold that the evidence tendered is not
sufficiently cogent and convincing (See
Ramakulukusha v Commander,
Venda National Force 1989(2) SA 813
(VSC) at
838 H-I
and
other authorities cited therein).
[34] In
the instance of this matter, the
onus
is on the Defendant to
prove, on the balance of probabilities, the conclusion of an oral
agreement inclusive of its material terms,
in terms of which
Plaintiff and the Defendant agreed to release one another from their
respective obligations or, at the very least,
an agreement in terms
of which the Plaintiff agreed to release the Defendant from its
obligations in terms of the acknowledgement
of debt entered into on
12 August 1999.
[35] I
have already referred to the first meeting which Steynberg had with
Plaintiff on 3 November 2000 and at which such meeting
a matter under
discussion, amongst other things, was an issue of cancellation of
insurance in respect of the fleet of aircrafts leased
by the
Defendant from Tuymen. At that meeting Steynberg was of the view,
and in fact believed, that the late Denissov had engineered
the
cancellation of the insurance contract. The letter of cancellation
had purportedly been signed by Venter. Steynberg, at
that stage,
had in his possession an Affidavit deposed to by Venter in which he
denied that the signature appearing on the letter
of cancellation was
his. There was then a strong suspicion that the letter of
cancellation was forged by Denissov and it was for
this reason that a
claim against the deceased estate of Denissov was contemplated.
[36] Although
it is not explicit on the basis of the record, it would appear that,
and in fact this was put to Steynberg, to which
statement he later in
his evidence conceded, that Steynberg had undertaken to furnish
Plaintiff with documents which would have constituted
a basis of a
claim against the deceased estate including the letter of
cancellation purportedly signed by Venter. Steynberg had
forwarded
these documents to Plaintiff by way of a telefax on 8 November 2000.
[37] Once
Plaintiff was in possession of these documents, particularly the
letter of cancellation, she had arranged with her attorney
to have it
analysed by a handwriting expert whose report she later obtained
during early March 2001. As has already been pointed
out, according
to the opinion of the handwriting expert, the late Denissov was
exonerated from any wrongdoing and, as matter of fact,
the report
implicated Venter.
[38] It
was on the strength of this report that Plaintiff arranged a further
meeting with Steynberg which took place at the Holiday
Inn,
Johannesburg International Airport on 21 March 2001. It was put to
Steynberg and he readily conceded to this statement, that
at the time
this meeting took place, what was in Plaintiff’s frame of mind was
that her husband did not sign the letter of cancellation
of insurance
dated 1 February 1999 and, in view thereof, her husband was not
guilty of any wrongdoing.
[39] What
transpired at the meeting of 21 March 2001 appears to be the
following: Plaintiff had the forensic report by the handwriting
experts with her, she had shown Steynberg the portion of the report
which exonerated her husband from blame except the portion
implicating
Venter, contrary to what Steynberg had said in his
evidence in chief that he only saw a piece of paper which Plaintiff
had on her
lap; that Plaintiff refused to give the report to him on
the basis that Steynberg would have to obtain his own report;
Plaintiff
had demanded payment, which Steynberg concedes, except to
say that no specific reference was made to the acknowledgement of
debt
when payment was demanded; an offer to pay half the amount
outstanding in terms of the acknowledgement of debt which Steynberg
denies but agrees to a discussion of a demand for shares in a hangar
in Nelspruit Airport; a discussion on a matter of collateral
security which Steynberg denies but concedes to a demand in shares in
a hangar in Nelspruit Airport; his undertaking to consult with
his
co-directors and undertaking to revert to Plaintiff in this regard
and a reference by Steynberg that Plaintiff would have made
an
insinuation that Steynberg is a clever person, a clever guy as
Steynberg puts it.
[40] What I am thus required to
determine is whether the oral agreement which Steynberg contends was
concluded could have been concluded
in the light of the circumstances
as outlined in the preceding paragraph. I am being asked to find
that Plaintiff, despite being
satisfied that her husband had nothing
to do with the cancellation of the insurance contract, nonetheless
agreed to the conclusion
of the oral agreement as pleaded and
referred to in evidence; to find that such an agreement was concluded
despite a demand for shares
in a hangar in Nelspruit, all of which
are but some of the factors pointing against a probability that such
an oral agreement, inclusive
of its terms as pleaded, could have been
concluded.
[41] In
the light of the circumstances I have just outlined, I am unable to
find that the oral agreement alleged by the Defendant
was concluded
as alleged in Defendant’s Plea and in Defendant’s Counterclaim.
Even if such an oral agreement was concluded,
which is highly
improbable in my view, I am unable to find that Plaintiff could have
concluded such an oral agreement with a deliberate
intention to be
bound. This, in my view, is the most plausible conclusion, amongst
several conceivable ones, from proved facts.
I am thus of the view
that the Defendant has failed to discharge the
onus
resting on
it or has tendered sufficiently cogent and convincing evidence that
the alleged oral agreement was concluded.
[42] I
carefully observed Steynberg when he tendered evidence at the hearing
of this matter. By all accounts he is a prudent business
person.
What I am finding strange though is his omission to confirm, in
writing, either to Plaintiff herself or to the attorneys
attending to
the winding up of the deceased’s estate, an agreement in terms of
which Plaintiff waives the claim based on the acknowledgement
of
debt, as proof that the Defendant has been relieved of this claim if
not also to ensure that this item of a claim be removed from
the
Liquidation and Distribution Account in the deceased estate.
[43] Because of the conclusion I have reached that the Defendant has
failed to discharge the
onus
resting on it to prove the
conclusion of the contract, there is no basis to draw for an adverse
inference arising from failure by
Plaintiff to testify or an
inference on inaction on the part of Plaintiff, from the date of the
alleged conclusion of the oral agreement
until 28 January 2002 when
Plaintiff took active steps to recover the amount due in terms of the
acknowledgement of debt.
[44] Further in the light of the conclusion I have reached, it is not
necessary for me to venture into what hitherto used to be the
troubled waters of a controversy, but for
Brisley v Drotsky
2002(4)
SA1 (SCA), as to what the effect the alleged oral
agreement would have been in the light of the non-variation and
non-waiver clause
referred to in paragraphs [18] and [19] of this
judgment.
[45] It
follows therefore that the issues reserved for separate adjudication
in terms of Rule 33 should be and are decided in favour
of Plaintiff.
………………………………
..
N J YEKISO, J
20
Judgment:
Denissova / Heyns Helicopters Yekiso J