Snack Factory (Pty) Ltd v Monanda Landboudienste (Edms) Bpk (765/99) [2001] ZANCHC 15 (29 June 2001)

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[2001] ZANCHC 15
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Snack Factory (Pty) Ltd v Monanda Landboudienste (Edms) Bpk (765/99) [2001] ZANCHC 15 (29 June 2001)

Verslagwaardig:
Ja/Nee
Sirkuleer
aan Regters: Ja/Nee
Sirkuleer
aan Landdroste: Ja/Nee
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
CASE
NUMBER: 765/99
DATE
DELIVERED: 29-06-2001
In
the matter between:
THE SNACK
FACTORY (PTY) LTD Plaintiff
and
MONANDA
LANDBOUDIENSTE Defendant
(EDMS)
Bpk
Coram: Majiedt J
JUDGMENT
MAJIEDT
J: -
The purchase and sale of ground nuts form the
factual background to the issues between the parties. Two issues
require adjudication,
viz.: -
who
were the parties to the agreement; and
what
were the terms of the agreement.
Plaintiff
sues the Defendant for various amounts, alleging that such amounts
are due and owing in terms of an oral agreement for
the purchase and
delivery of ground nuts to it by the Defendant.
Plaintiff averred in its
Particulars of Claim, amplified by the Further Particulars for Trial,
that: -
the
Plaintiff was represented by Craig Lowenthal (one of its Directors)
as one of the principal parties to the agreement (i.e. as
purchaser)
and the Defendant by its director, Charles de Villiers, as seller.
Plaintiff further avers that Hannes Koen, sole member
of Triotrade
CC, was present at the conclusion of this agreement, as Plaintiff’s
agent.
The
material terms of the agreement were as follows: -
that
the Defendant would purchase ground nuts in raw, unshelled form from
farmers and would sell same to Plaintiff at the Defendant’s
cost
price which was agreed to be the price paid to the farmer;
the
Defendant would pack the nuts in 250 ton stacks and shell, weigh and
grade the ground nuts for the Plaintiff;
a
representative of Triotrade would do control grading (as Plaintiff’s
agent) on the Defendant’s site to ensure that grading
was done in
accordance with agreed grading and industry standards;
after
the processing of the nuts as contemplated in paragraph (ii) above,
the Defendant would furnish to Triotrade (as Plaintiff’s
agent)
documentation regarding a weigh bridge certificate for the nuts
purchased from each farmer, a grading certificate in respect
of each
load purchased, a payment advice indicating the sum paid to each
farmer and a composite summary of the aforegoing which
reflects the
total sums which the Plaintiff owed to the Defendant in respect of
each stack;
the
aforementioned documentation would be forwarded by Triotrade to the
Plaintiff, who would pay the amount reflected on each summary
to
Triotrade who, in turn, would effect the payment so received from
the Plaintiff, to the Defendant in respect of each stack;
ownership
of each stack of ground nuts would pass to the Plaintiff once it has
paid the Defendant for each such stack;
the
Plaintiff would pay to the Defendant the sum of R180.00 per ton for
the handling, shelling, grading and administration of the
ground
nuts (these were referred to as
“handling
charges”
during the trial and I shall continue using that description in this
Judgment).
The
following salient aspects requires emphasis at this early stage: -
Plaintiff
avers that Triotrade acted as its agent during the conclusion of
the oral agreement and throughout its dealings with
the Defendant
in terms of the said agreement.
There
was a peculiar, seemingly cumbersome, process agreed to and
employed in practice between the parties whereby documents and
payments were routed through Triotrade as a conduit (so Plaintiff
avers).
Ownership
of the stacks of ground nuts would, according to the Plaintiff,
pass to it once it has paid the cost price of the ground
nuts to
the Defendant, i.e. prior to the processing and handling having
been effected by the Defendant and prior to Plaintiff
having
compensated the Defendant therefor.
The
Defendant, in its plea, amplified by the Further Particulars for
Trial, denies the above averments.
It avers that:
The
agreements was concluded orally with Triotrade CC (represented by
the said Koen).
The
agreement was to the effect that the Defendant would sell ground
nuts to Triotrade (the Defendant having purchased same from
producers for an agreed price). The Defendant would charge
Triotrade the prevailing market price of the ground nuts.
It
was specifically agreed between the parties that the normal losses
(e.g. grading and fluid losses) which are normally borne
by the
seller, would be borne by the purchaser (Triotrade).
In
terms of the agreement, the Defendant would render an invoice in
respect of the sales to Triotrade who would then pay the Defendant
accordingly.
Until
such time as Triotrade had paid for the ground nuts, ownership
thereof would remain vested in the Defendant.
Triotrade
would indicate which of the ground nuts purchased were to be
delivered to the Plaintiff – such nuts had to be shelled,
administered and transported to the Plaintiff’s factory at
Bronkhorstspruit and the Defendant would be compensated therefor
by
Triotrade at R180.00 per ton. Defendant would render separate
invoices in respect of the purchase price and handling charges
to
Triotrade.
Triotrade
would, in similar fashion, indicate to the Defendant which of the
ground nuts purchased were to be delivered to Rhys
Evans (Pty) Ltd
(
“Evans”
)
at Viljoenskroon – these were to be in unprocessed and unshelled
form and would cost R140.00 per ton (primarily administration
and
delivery charges).
I
highlight the following important features of the Defendant’s
version:
Triotrade
was a principal party, as purchaser, and not a mere agent to the
agreement.
Ground
nuts were destined for the Plaintiff’s factory in
Bronkhorstspruit in shelled and processed form and for Evans in
Viljoenskroon
in unshelled and unprocessed form.
Although
some of the ground nuts which Triotrade had purchased from the
Defendant would end up being delivered to the Plaintiff
(in shelled
and processed form), the Defendant specifically denies that there
had been any agreement whatsoever concluded between
itself and the
Plaintiff.
The
terms of the above agreement had been amended twice, according to
the Defendant. I shall refer to the said amendments in due
course.
At
the commencement of the hearing, I was requested by Counsel to
determine the aforementioned two issues separately (see paragraph
1,
supra
).
It was further agreed
that, in the event that I find for the Plaintiff on the question of
who the parties to the contract were, then
judgment would follow for
Plaintiff in the sum of R147 910.88 (the Defendant has tendered
payment of the said sum to Triotrade),
on condition that Triotrade
releases the Defendant unconditionally in writing from the obligation
of payment to it. Counsel informed
me that Triotrade had fulfilled
the aforesaid condition. I had therefore ordered in terms of Rule
33(4) a separation of the issues
as aforestated. The balance of the
Plaintiff’s claims would stand over for later determination.
The
parties were
ad
idem
that the Plaintiff bears the onus of proof in respect of the two
issues,
supra
.
There are before me two mutually destructive versions on the two
issues requiring determination. The version of the Plaintiff
was
advanced by the
viva
voce
evidence of Messrs. Lowenthal and Koen. The Defendant’s version,
on the other hand, was given by Mr. De Villiers.
The
Plaintiff can only succeed if:
“
he satisfies the Court on a
preponderance of probabilities that his version is true and accurate
and therefore acceptable, and that
the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected.
In deciding whether
that evidence is true or not the Court will weigh up and test the
plaintiff’s allegations against the general
probabilities.
The
estimate of the credibility of a witness will therefore be
inextricably bound up with a consideration of the probabilities of
the case and,
if
the balance of probabilities favours the plaintiff, then the Court
will accept his version as being probably true. If however,
the
probabilities are evenly balanced in the sense that they do not
favour the plaintiff’s case any more than they do the defendant’s
the plaintiff can only succeed if the Court nevertheless believes him
and is satisfied that his evidence is true and the defendant’s
version is false”.
Per
Eksteen JA in
National
Employers General Insurance Co
.
Ltd
v. Jagers
1984(4)
SA 437(A) at 440 E-G, (my emphasis).
See
also:
Transcash
SWD (Pty) Ltd v Smith
1994(2) SA
295(C) at 303 B-C;
Plaatjies
& another v Road Accident Fund
[1999]1 All SA 162 (SE) at 168e-i.
I
now summarise the oral evidence before me.
10.1 (a) Mr. Craig
Lowenthal is a director of the
Plaintiff company. He
testified that the Plaintiff had become a significant participant in
the ground nut market, subsequent to the
deregulation thereof in the
mid 1990’s.
Plaintiff
had dealings with Triotrade through its sole member, Hannes Koen,
since before 1998, when Plaintiff had purchased relatively
small
quantities of ground nuts directly from Triotrade.
(b) In the ground nut
industry it had become common knowledge that 1998 would be a
difficult year for the industry since there was
an anticipated
shortage of supply of nuts on the market. Consequently, Mr.
Lowenthal on behalf of the Plaintiff engaged the services
of
Triotrade to act as its agent for the procurement of ground nuts.
During
March or April 1998, Koen set up a meeting
with
de Villiers representing the Defendant, at which meeting Lowenthal
was also present. It was at this meeting, held at the Defendant’s
premises at Jan Kempdorp, that an agreement was concluded between the
Plaintiff and the Defendant, in the terms as set forth in paragraph
2(b)
supra.
(d) The terms of the
agreement were given effect to. One Wessel Higgs, an employee of
Triotrade, acted as the Plaintiff’s on-site
agent to supervise the
grading of the ground nuts on the Defendant’s premises.
(e) Problems arose right
at the outset – the first consignment of ground nuts, delivered by
the Defendant to the Plaintiff in shelled,
processed form and
labelled stack M1 by the Defendant, fell short of what was invoiced
out by the Defendant. This shortage related
primarily to weight
inasmuch as what was received fell far short of what was invoiced
out, i.e. far beyond the norm for standard
losses accepted in the
industry (and as prescribed in the Government Gazette).
Two
meetings were held to address these problems. According to
Lowenthal, Koen set up both of these meetings at his request. Both
meetings were held at the Defendant’s premises, the first on 2
July 1998 and the second on 30 July 1998.
Lowenthal, Koen and de
Villiers attended both these meetings; at the first meeting Higgs was
also in attendance.
The minutes of the said
meetings form part of the voluminous documents handed in at the
trial. More about that later.
Despite
these meetings and various interactions between Koen (acting on
behalf of the Plaintiff) and de Villiers, matters did not
improve.
The proverbial last straw which broke the camel’s back was a
letter from de Villiers (for the Defendant) to Triotrade,
in terms
whereof the amount of R147 910.88 was tendered (presumably as full
and final settlement of all outstanding claims) to
Triotrade,
subject to certain conditions.
Koen handed this letter
to Lowenthal who in turn handed same to his attorney. A formal
letter of demand to the Defendant from Plaintiff’s
attorneys ensued
and this was met by a written response from the Defendant’s
attorney.
These
documents will, in my view, have an important bearing on assessing
the probabilities in this case and I shall revert to them
shortly.
In
conclusion – Lowenthal was adamant that he had, on behalf of the
Plaintiff, contracted with the Defendant (represented by de
Villiers) on the terms as alleged hereinbefore. He was equally
steadfast in his view that he had engaged Triotrade to act as the
Plaintiff’s agent in its dealings with the Defendant.
10.2 (a) Mr. Hannes Koen
is the sole director of Triotrade
CC. This close
corporation is involved in the total sphere of the ground nut
business and also acts as procurement agent for buyers.
He had known
and done business with Lowenthal for more than 4 years. During 1997
Triotrade did business with the Plaintiff on a
principal to principal
basis, with Triotrade as seller of ground nuts (procured from the
producers/farmers) directly to the Plaintiff
as buyer.
(b) According to Koen he
has no interest whatsoever in the outcome of this litigation. He
also has no axe to grind with the Defendant.
(c) Koen confirmed
Lowenthal’s version in his testimony that he was approached by
Lowenthal at the end of 1997 or beginning of 1998,
to act as
procurement agent for the Plaintiff. Triotrade had previously done
business on a large scale with the Defendant. Koen
knew de Villiers
well; in fact it transpired later during de Villiers’ testimony
that they had worked together until 1994 for the
Vaalharts
Co-operative. Koen identified Defendant as a reliable and viable
source for the supply of ground nuts to meet the Plaintiff’s
requirements.
(d) Koen also testified
to the meeting at the Defendant’s premises during March/April 1998
where he, de Villiers and Lowenthal were
present.
According to Koen,
Triotrade acted at all times as the Plaintiff’s agent and it was so
understood by all present at the meeting.
In fact, according to
Koen, this was pertinently stated at the meeting. He testified
further that Triotrade did not have the financial
means to contract
for the purchase of ground nuts for itself on the scale envisaged and
that de Villiers was very well aware of this
fact.
(e) Koen’s evidence
accords with that of Lowenthal as far as the terms of the oral
agreement is concerned. He also testified to
the problems which had
arisen and the two meetings which had been held to resolve same. As
author of the minutes, he confirmed the
correctness thereof.
(f) According to Koen,
the agreement reached with de Villiers was that ownership of a stack
of ground nuts would pass to the Plaintiff
as soon as Plaintiff had
paid the cost price thereof to the Defendant (i.e. the price which
the Defendant had paid to the producer/farmer
for the nuts). This
meant that the Defendant would be paid while still in possession of
the nuts (for purposes of processing and
shelling them), but would
not as yet have been paid for its handling charges.
I must point out here
that Lowenthal had earlier testified that this agreement on ownership
of the ground nuts was reached between
Koen (acting as the
Plaintiff’s agent) and de Villiers (as director of the Defendant).
It follows therefore that this had not
been one of the terms agreed
between the parties at their initial meeting.
This
is one of the peculiarities which abound in this matter, to which I
shall refer in due course.
(g) I conclude my
synopsis of Koen’s evidence with three important observations:-
(i) Koen was, like
Lowenthal, persistent and consistent in his averment that he acted as
an agent for the Plaintiff from the outset
and throughout his
dealings with the Defendant.
As
an illustration (and a significant one at that) he testified that he
had regarded the tender by the Defendant, contained in the
letter
which I had alluded to earlier in this judgment (see par. 10(1)(g),
ante
),
as relating to monies due and owing to the Plaintiff. He had
therefore passed this letter on to Lowenthal.
(ii) In cross-examining
Koen Mr. Danzfuss questioned whether he, on behalf of Triotrade, had
ever done business in a similar fashion,
i.e. where documents had
been routed through Triotrade in its name as an agent. Koen replied
in the affirmative and referred to
one such deal (amongst several
others) done with Tiger Oats where the documents had been in
Triotrade’s name, although it had merely
acted as an agent.
(iii) At the end of his
evidence I questioned Koen about the fact that he had not received
any commission from the Plaintiff for Triotrade’s
agency functions
as had been agreed and the reason/s therefor.
Koen’s evidence earlier
had been that Triotrade was to earn commission of R50.00 per ton of
ground nuts purchased by the Plaintiff.
This commission was payable
in respect of its duties as the Plaintiff’s agent. He had
testified further that no commission had
been paid to him by the
Plaintiff. In reply to my question, Koen testified that Triotrade
had not been paid due to the fact that
the Plaintiff had sustained
extensive losses in its dealings with the Defendant. He stated that
Triotrade had lost an estimated
R150 000.00 in commission.
According
to Koen, Lowenthal had approached him again the following year (i.e.
1999) with a request to act as the Plaintiff’s procurement
agent,
but he (Koen) declined to do so by reason of the aforementioned
outstanding commission.
10.3 (a) Mr. Charles de
Villiers is the sole director of the
Defendant company. The
Defendant can loosely be decribed as an agricultural commodities
dealer.
De
Villiers testified that the Defendant had had extensive business
dealings with Koen since 1996. He alluded to the fact that they
had
previously worked together at the Vaalharts Co-Operative.
(b) De Villers testified
that he had always done business with Triotrade on a principal to
principal basis as seller and purchaser.
Never in his dealings with
Triotrade had the latter acted as an agent for a purchaser.
(c) De Villiers made
mention of a transaction during 1997 when Triotrade had purchased
ground nuts from the Defendant. These nuts
were delivered to the
Plaintiff. There were complaints about the grading and quality of
the last two loads delivered to the Plaintiff
and de Villiers and
Koen travelled to the Plaintiff’s Bronkhorstspruit factory to
address the complaints. It transpired that there
were in fact no
problems with the quality and grading of the ground nuts and the
Defendant was paid the monies due to it.
According to de Villiers,
he found the attitude of Craig Lowenthal’s brother, Darren,
somewhat disconcerting and this visit left
him (de Villiers) with a
firm resolve never to do business with the Plaintiff in future.
(d) Koen had contacted
him during December 1997 with a request to quote on prices for the
supply and delivery of ground nuts to Sunland
(one of Triotrade’s
business associates), to the Plaintiff and to Evans. He furnished a
written quotation to Koen on 12 January
1998 – this document is
also part of the exhibits before me.
(e) On 24 February 1998,
Koen and Lowenthal visited his premises at Jan Kempdorp. An
agreement was reached that the Defendant would
sell to Triotrade 3500
tons unshelled ground nuts and 2500 tons machine cleaned ground nuts
– the firstmentioned was to be delivered
to Evans and the latter to
the Plaintiff. It was agreed that the purchase and delivery of
machine cleaned nuts was subject only
to the price therefor being
acceptable. Later Koen had reverted to him (de Villiers), advising
that the price for the machine cleaned
ground nuts was too high and
it was agreed that ground nuts in shelled form would be purchased by
Triotrade and delivered to the
Plaintiff.
(f) De
Villiers testified further that the details of the agreement were
finalized between him and Koen on 2 April 1998 (according
to the
Villiers there was only an agreement
in
principle
on the purchase and sale of ground nuts on 24 February 1998). On 2
April 1998 the agreement was finalized on price, deductions for
standard industry losses, the method and manner of payment and the
question of ownership.
As regards ownership, de
Villiers testified that it was agreed between him and Koen that
ownership of the ground nuts would pass once
payment has been made
and the product had been delivered. An important feature of the
evidence here is that according to de Villiers,
ownership would pass
once not only the cost price of the ground nuts, but also the
handling charges (where of course applicable)
had been paid to the
Defendant.
(g) De Villiers testified
that he had not contracted with the Plaintiff as purchaser on the
dates mentioned or at any other time.
Triotrade was purchaser and
principal party to the agreement. Triotrade was most certainly never
an agent of the Plaintiff’s
– of that he was certain.
(h) The agreement was
amended twice – these related to the fact that ground nuts had to
be delivered in unshelled form to Viljoenskroon
(at R167.00 per ton
delivery and administration charges), as per the amendment of 27 July
1998. Subsequently when it appeared that
the Viljoenskroon operation
lacked the necessary capacity, a further amendment was agreed to
whereby the Defendant would process
and shell the nuts at an
additional cost of R 235.00 per ton.
(i) de Villiers testified
further that all the documents had been forwarded to Triotrade.
Payment for the nuts were received from
Triotrade. As a result of
the problems which arose, he tendered payment in the sum of R 147
910.88 to Triotrade, subject to certain
conditions. When he received
a letter of demand from the Plaintiff’s attorney, he consulted with
his own attorney as a consequence
whereof a letter in response was
drafted and forwarded to the Plaintiff’s attorney. It transpired
during cross-examination that
de Villiers had, prior to the said
consultation, sent a written memo to a partner in the firm of
attorneys representing him as a
consequence of the aforementioned
letter of demand. I shall discuss this in more detail later.
In
conclusion – de Villiers was steadfast in his denial that he had
contracted with the Plaintiff and that Triotrade had merely
acted as
the Plaintiff’s agent.
As
has seemingly become custom with civil trials, there is a huge
volume of documents which have been handed in as exhibits.
Some of
these are more relevant than others. Quite a number of them hardly
bear any semblance of relevance whatsoever to the
issues at hand.
Of the four hundred or so pages of documentary exhibits, not even a
tenth can be said to be of much assistance
in resolving the issues
under consideration. In most cases, the documents amount to
overkill; the approach appears to be –
why produce and hand up as
an exhibit one invoice to prove a point when you can do so with
fifty additional similar invoices?
Both parties are equally
to blame and my comments should be read accordingly.
To
my mind the most important documents are the following (I shall at
the appropriate stage make reference thereto in the course
of my
deliberations on the probabilities in this matter): -
the
minutes of the meetings referred to earlier;
the
various payment advices issued by the Defendant (one of these,
accompanied by an agreement between the parties that it represents
a
standard type of payment advice, issued in, for example, 50 such
instances would have sufficed, instead the record is burdened
with
50 or so of these documents);
relevant
extracts from the ledgers of the Plaintiff, Triotrade and the
Defendant;
the
six tax invoices issued by the Defendant to the Plaintiff;
the
letters between the Defendant and Triotrade;
the
two letters exchanged between the attorneys for the parties in
respect of the Plaintiff’s demand for payment;
the
memorandum forwarded by de Villiers to his attorneys.
During
the course of the trial I made two rulings relating to documents,
the contents whereof amount to self-corroboration (or,
put
differently, proof of a previous consistent statement). I had
upheld the objection against the handing in of a draft affidavit,
forwarded to Koen by the Defendant’s attorneys for purposes of
opposing an application for summary judgment. Later, during
the
Defendant’s case, I had allowed the handing in of the memo
referred to in par. 11.2(g) above.
These are my reasons for
those rulings.
11.3.1 A previous
consistent statement amounts to self-corroboration and would only be
admissible as evidence in certain exceptional
instances. One of
these, relevant to the present case, is to rebut an allegation of
recent fabrication.
See:
Hoffman
& Zeffert, The South African Law of Evidence,
4
th
ed., at 121 et seq., and cases there cited.
The
draft affidavit was disallowed as admissible evidence for
precisely that reason – Koen’s notes thereon would have

amounted to self-corroboration, i.e. to prove that he had on a
previous occasion already denied that he had contracted as a

principal party with the Defendant (as the draft affidavit would
have it.
Conversely, de Villiers’
memo to his attorneys, albeit tantamount to a previous consistent
statement, became admissible when Mr.
Antoni had pertinently put it
to him in cross-examination that he had recently fabricated his
defence as it appears in the pleadings.
Quite
often documentary evidence constitutes the best evidence at a
trial. I have been urged by Mr. Antoni, during his argument
to
take the opposite approach; as he put it – the documentary
evidence should yield to the oral evidence. In my view the

following is abundantly clear: -
that
the overwhelming majority of the documents before me, reflect direct
transactions between the Defendant (as seller) and Triotrade
(as
purchaser), i.e. consistent with the Defendant’s version as to who
the parties to the agreement were;
the
documents which have a bearing thereon, support the Defendant’s
version of what the terms of the contract (as amended) were;
in
a few instances, which I shall elucidate further shortly, the
documents may well be the deciding factor in tilting the scales
in
favour of one of the sides in assessing the probabilities, which I
now proceed to do.
This
is not the type of case the evidence of which lends itself to easy
assessment of which of the two versions are favoured by
the
probabilities. Bearing in mind the approach to be adopted in a
matter such as this one (see the
dictum
of Eksteen JA in the
National
Employers General Insurance
case, quoted at par. 9 above), it seems to me an appropriate
starting point to consider the oral evidence.
None
of the three witnesses were either exceptionally good or bad.
There is no basis to make adverse demeanour findings against
any
one of them. In any event, I am mindful of the fact that a witness
box in a courtroom can hardly be a place which inspires
comfort in
any witness.
See:
S v
V
2000(1)
SACR 453(SCA) at 455 f-g, and authorities there cited.
I am not able to find
that any one of the three witnesses has given deliberately false
testimony.
What
is of more importance is that I assess their evidence against the
probabilities, particularly with regard to the important, disputed
aspects of this case;
See:
Germani
v Herf & another
1975(4)
SA 887(A) at 903C-E, as referred to in:
Body
Corporate of Dumbarton Oaks v Faiga
1999(1) SA 975 (SCA) at 979 B-I.
The
question to be answered is: which one of the versions advanced in
evidence by the witnesses is, on the probabilities, correct?
See:
Body
Corporate of Dumbarton Oaks v Faiga
,
supra
,
at 979I-J.
12.3.1 Mr. Danzfuss has,
understandably so, laid much emphasis in his argument on the fact
that the documentary evidence overwhelmingly
supports the Defendant’s
version on both the issues which require determination.
There is considerable
substance in this argument.
A perusal of the mass of
invoices, summaries, letters and payment advices before the Court
resoundingly underscores this submission.
They point almost
persuasively in one direction only, viz. that the Defendant had
contracted with Triotrade directly for the sale
of ground nuts.
It
is correct, as Mr. Danzfuss has submitted, that this case involves
a considerable amount of circumstantial evidence and one
needs to
tread with care in drawing inferences therefrom. The issue to be
determined is which one of the several inferences
which present
from the facts is
“the
most plausible or probable inference”;
See:
Cooper
& another NNO v Merchant Trade Finance Ltd
2000(3) SA 1009(SCA) at 1027G,
Or put differently –
Which
is
“the
most natural or acceptable inference”;
See:
Minister
of Safety & Security v Jordaan t/a Andre Jordaan Transport
2000(4) SA 21(SCA) at 26G.
One
must furthermore be mindful of the pitfalls of:
a
party to a contract advancing its own interpretation of the terms of
an oral agreement; and
relying
on the mere say-so of a witness who describes himself as an
“agent”
or
“representative”
when the Court has to make a finding on precisely that matter.
If
the documentary evidence tends to favour the Defendant’s version
on the probabilities, then the joker in the pack must surely
be
Koen of Triotrade.
Mr. Antoni has argued
strenuously that I should find that Koen is a completely independent
witness.
He
has submitted further that, in order for me to find for the Defendant
on the disputed issues, I would of necessity have to reject
Koen’s
evidence as false. Mr. Danzfuss, on the other hand, has submitted
that: -
Koen is not an
independent witness in that he
stands to gain from
successful litigation by the Plaintiff. As I understand his
submission, a finding in favour of the Plaintiff
would ensure that
action is not instituted against Triotrade. There is also an oblique
suggestion that Koen may stand to benefit
from success in this action
by the Plaintiff in that his (outstanding) commission of some R150
000.00 may then be paid by the Plaintiff.
(b) Koen’s evidence
should be rejected, as against the probabilities, which is submitted
to favour the Defendant.
12.5 Two matters create
considerable difficulty in the adjudication of this case:
As
I have said, the documentary evidence tends to favour the Defendant’s
version, while Koen’s evidence strongly supports the
Plaintiff’s
version. All three witness are
ad
idem
that de Villiers had said to Koen that he (de Villiers)
“wants
nothing to do with the Jew”
(referring to Lowenthal). The dispute arises in that they place a
different spin on these words – Plaintiff’s version, as advanced
by Lowenthal and Koen, would have it meaning that de Villiers was
prepared to do business with Lowenthal (and contract with him)
but
only through Triotrade/Koen acting as some type of conduit; de
Villiers on the other hand, says it meant that he was not prepared
to
contract with Lowenthal/the Plaintiff at all.
12.6 Koen has made a very
favourable impression upon me. He did not appear to me to have any
ulterior motive to advance the Plaintiff’s
cause. On the contrary,
his declaration, elicited at the very end of his testimony when I was
questioning him, that he had lost
some R150 000.00 in commission and
that he had declined thereafter to act as the Plaintiff’s agent
when requested to do so again,
is an important factor which enhances
his credibility.
An
opposing, cynical view may of course be that his testimony is aimed
at recovering his lost commission. It was noticeable that
Counsel
for the Defendant did not avail himself of the opportunity to explore
this possibility, when I gave another opportunity for
questions
emanating from mine.
This
evidence which I refer to, would in my estimation have been of
substantially less impact if it had been proferred in chief,
to
attempt to establish Koen’s
bona
fides
and impartiality.
I regard him as an
independent witness. He appeared to be somewhat surprised, and taken
aback by Counsel’s suggestion in cross-examination
that his motive
for testifying for Plaintiff is to avoid action being instituted
against himself/Triotrade.
I
therefore have no hesitation in accepting his evidence.
I
have never come across a business transaction of the nature
contended for by the Plaintiff’s witnesses, i.e. where
documentation
are routed through an agent/conduit, as is the case
with payments. It does not, of course, mean that the agreement
(assuming
that Plaintiff’s version is correct) was invalid, nor
has Mr. Danzfuss contended otherwise. I have been told by Counsel
that
no tax or other advantages accrued to any of the parties
through this arrangement. Again, Mr. Danzfuss has not contended
otherwise.
The
reason proffered for this peculiar, cumbersome
modus
operandi
appears
on the face of it to be rather unconvincing. Accepting for the
moment that de Villiers wanted nothing to do with Lowenthal
and his
company, why would he then enter into a contract with him/them?
Conversely, of course, one may say that de Villiers
knew right from
the start that the nuts were destined for the Plaintiff, that
Plaintiff was the one who has the financial means
to purchase and
to pay for the considerable quantities of ground nuts in question
(whereas Triotrade was not and de Villiers
was well aware of that).
I
have deliberated carefully over these anomalies and peculiarities,
in particular the question of Triotrade acting as a conduit.
I have come to the
conclusion that the Plaintiff’s version is the correct one and that
the probabilities favour it. I have done
so for the reasons which
follow.
12.9.1 Inasmuch as
Lowenthal and de Villiers were on par as witnesses who had advanced
conflicting and mutually destructive versions
on the issues before
me, Koen is an independent witness whose evidence I accept, for the
reasons already mentioned.
Although
the documents
prima
facie
militate, on the probabilities, against the Plaintiff’s version,
it must be borne in mind that in the Defendant’s own ledger,
there appears an entry which reads:
“
Verkope
: 502.1
Snack Factory 411
(R) 115 481 6 55
Verkope:
503.1
Snack Factory 412
(R) 558 973.80”
This
conveys the impression that the Plaintiff was
the
(direct) purchaser of the ground nuts for the amounts in question.
De Villiers’ explanation for this entry in the ledger failed
to
impress me at all. He blamed a manual program and proffered
inadmissible hearsay evidence to attempt to explain this away. Of
lesser import further is the fact that he had issued tax invoices
directly to the Plaintiff. His explanation that this was done
at
Koen’s request, for value added tax purposes, cannot be summarily
rejected. It does not detract from the fact, however, that
on those
invoices the inscriptions again appear as
“Kontantverkope:
Snack Factory”.
12.9.3 On
Koen’s evidence, it appears that this type of arrangement was not
as unique as it would appear at first blush. His evidence,
elicited
under cross-examination, that Triotrade had previously acted as an
agent where documents were issued in Triotrade’s name
and routed
through it,
inter
alia
with Tiger Oats, is of considerable importance. That evidence,
furthermore remained uncontroverted.
12.9.4 It is clear, on
the probabilities, that de Villiers knew who Lowenthal and the
Plaintiff were, even before Koen had approached
de Villiers for the
supply of ground nuts to Plaintiff in 1998.
He also knew that
Plaintiff was a significant player in the ground nuts industry and
that Plaintiff had the financial muscle to do
business on the scale
contemplated (whereas Triotrade, to de Villiers’ knowledge did
not). He knew further that the ground nuts
were destined for
Plaintiff.
Al
these factors lend credence to and support the Plaintiff’s version.
The
minutes of the meetings held also support the Plaintiff’s
version. These minutes stand uncontroverted as being a true
reflection of the events which had occurred at the meetings.
It
is noticeable and of considerable significance that these minutes
reflect agreements as to performance and the manner thereof by
Defendant
vis-à-vis
the Plaintiff. This lends strong support to the allegation that
these were indeed the principal parties to the agreement. They
also
do not bear out what de Villiers had contended in evidence, namely
that the meetings were called to address the problems which
the
Defendant had been experiencing.
The
question of the passing of ownership is of some importance, not
only regarding the terms of the agreement, but also as to
the
credibility of the witnesses. On this aspect, I find the
Plaintiff’s version more acceptable. I cannot see how, on
the
probabilities, the Plaintiff would risk not being the owner of a
stack of ground nuts, even though he had paid the full
purchase
price of the nuts to the Defendant. This is even more improbable
if one bears in mind the fact that, even after the
full cost price
of the nuts had been paid to the Defendant, the latter remained in
possession thereof (for purposes of shelling
and processing same).
Much
was made in argument of the contents of the letter by Defendant’s
attorney, Mr. Terblanche (exhibit A113) in response
to the letter
of demand addressed to the Defendant by the Plaintiff’s
attorney. Exhibit A113 does not in any way, even obliquely,
suggest that the Defendant had not contracted with the Plaintiff,
but rather with Triotrade.
The adverse impact
thereof on the Defendant’s version is somewhat ameliorated by
exhibit “F”, the memo forwarded by de Villiers
to another
attorney in the same firm, prior to de Villiers’ consultation with
Terblanche. In my view one can say no more than
this – for some
inexplicable reason Terblance had been completely ignorant of the
contents of exhibit “F” at the time that
he had drafted the said
letter.
It follows that de
Villiers did not, again inexplicably, draw Terblanche’s attention
to the said memo. This conclusion accords
with de Villiers’
evidence under cross-examination that he had advised his attorney
about the fact that he had contracted with
Triotrade and not with the
Plaintiff, for the first time when he had received the summons in the
matter. His explanation later that
he had misunderstood Counsel’s
question and had confused the summons with the letter of demand, is
singularly unimpressive. This
must obviously reflect adversely on de
Villiers’ credibility. This adverse aspect should, however, be
considered in the context
of the contents of exhibit “F”. To
conclude – I do not view this as a factor which by itself renders
de Villiers’ version
unacceptable, but I take it into account
together with other factors which militate against the Defendant’s
version.
Another
factor which weighs against the Defendant’s case is the fact
that de Villiers’ evidence as to when the agreement
had been
concluded is at variance with the Defendant’s plea. It will be
recalled that de Villiers had stated in his testimony
that an
“in
principle”
agreement had been reached on 24 February 1998 and the finer
details thereof had been finalised on 2 April 1998. In his plea
the averment is made that the agreement had been concluded on 24
February 1998; no reference whatsoever is made to 2 April
1998.
On
a conspectus of all the evidence (oral and documentary) I am not
persuaded that Lowenthal and Koen could have concocted their
version. On the contrary, when I consider their evidence against
the probabilities, I am satisfied that the Plaintiff’s
version
is more acceptable.
Mr.
Danzfuss has submitted that it is indeed a peculiar situation for
an agent such as Koen to be so centrally involved in all
the
transactions between the Plaintiff and the Defendant.
What must be borne in mind, however is that: -
this
was, according to Koen, not such a unique situation, since he had
acted in this manner on other occasions,
inter
alia
for Tiger Oats;
it
would accord with the evidence (about which there is consensus) that
de Villiers had wanted nothing to do with Lowenthal/Plaintiff);
and
Koen
was to earn a fairly handsome commission from the Plaintiff for his
efforts.
As
to the first issue between the parties, I accordingly find for the
Plaintiff: the parties to the contract were the Plaintiff
and the
Defendant. I find further that Triotrade, represented by its sole
member, Hannes Koen, had acted as the Plaintiff’s
agent at all
material times in this matter.
On
the second issue, I also find for the Plaintiff: the terms of the
agreement concluded between it and the Defendant were as set
forth
in paragraphs 4.1 to 4.9 (both inclusive) of the Plaintiff’s
Particulars of Claim, save that the sum in par. 4.9 was R180.00
per
ton of ground nuts.
It is clear, on the
evidence of de Villiers (which is uncontroverted on that particular
aspect) that the purchaser would bear losses
normally borne by the
seller. In similar vein there is uncontradicted and uncontested
evidence from de Villiers that the agreement
had been amended twice,
as set forth in paragraphs 3.7 and 3.8 of the Defendant’s Plea.
I
accordingly find that the agreement between the parties had:
contained
the further terms (i.e. over and above those as set forth in
paragraphs 4.1 to 4.9 of the Plaintiff’s Particulars of
Claim) as
contained in paragraph 3.6.3 of the Defendant’s Plea; and
been
amended twice as set forth in paragraphs 3.7 and 3.8 of the
Defendant’s Plea.
In
accordance with the agreement between the parties as contained in
the pre-trial minutes, it follows that, having found for
the
Plaintiff, judgment must be entered for the Plaintiff in the sum of
R147 910.88. Costs must follow the outcome and is awarded
to the
Plaintiff.
There
remains the matter of the costs of the postponement on 7 November
2000 which I had reserved for determination at the hearing.
The Plaintiff had clearly
been remiss in not furnishing its Further Particulars timeously and
in complying with the Defendant’s
Rule 35(3) Notice only on the
morning of the application. The Defendant had quite clearly been
prejudiced by this dilatoriness.
The documents which it had
requested namely Plaintiff’s ledger and the financial records with
regard to Triotrade and the Defendant,
have been of particular
importance in this case. Without it, the Defendant could clearly not
prepare properly for trial.
16. I
issue the following order:
Defendant
is ordered to pay to the Plaintiff the sum of R147 910.88.
Defendant
is ordered to pay the costs of the action.
Plaintiff
is ordered to pay the costs of the postponement of 7 November 2000.
______________________
S.A. MAJIEDT
JUDGE
Date
heard: 12-06-2001
Date
delivered: 29-06-2001
Counsel
for Plaintiff: Adv. Antoni
Counsel
for Defendants: Adv. Danzfuss