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2024
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[2024] ZAFSHC 129
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KP De Lange Trading (Pty) Ltd v HWBH Group (Pty) Ltd (918/2021) [2024] ZAFSHC 129 (10 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA.
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: 918/2021
In
the matter between:
KP
DE LANGE TRADING (PTY) LTD
Plaintiff
and
HWBH
GROUP (PTY) LTD
Defendant
JUDGMENT
BY:
REINDERS J
HEARD
ON:
19 JANUARY
2024
DELIVERED
ON:
10 MAY 2024
This
judgment was handed down in open court and circulated to the parties'
representatives by electronic mail communication on 10
May 2024
.
[1]
During
2017 the plaintiff (as represented by Mrs Elaine de Lange) and the
defendant (represented by Mrs Hannelie Pienaar [now Roux]),
commenced
business dealings acting respectively on behalf of
the
parties
herein, both being companies. The parties were, at the time, both
trading as brokers in maize chop (chop), and neither produced
chop or
had the same in stock. A milling company named Zesto Mill (Zesto) was
the producer of the chop. It is common cause that
the plaintiff
bought tonnages of chop from Zesto, and the defendant in turn then
bought such tonnages from the plaintiff and sold
it to its
customer(s).
[1]
These tonnages
were loaded on the trucks of a transport company as arranged by the
defendant's buyer(s), at the premises of Zesto.
It is common cause
that chop was supplied by the plaintiff to the defendant in the
aforesaid manner during the time period from
1 March 2018 to 4 April
2018. For ease of reference and with no disrespect intended, the
witnesses will be referred to by their
first names as was done
throughout the trial.
[2]
The plaintiff
issued summons against the defendants for payment of R732 289,20 plus
interest and costs. In the particulars of claim
it is averred that
the parties entered into a verbal agreement for the supply of the
chop at the price that would be agreed to
between the parties (in
accordance with the average market price plus commission) and that
the defendant would pay within 48 hours
from delivery of an invoice.
It is averred that in terms of the agreement plaintiff duly performed
by supplying the chop to the
defendant from 1 March 2018 until 4
April 2018. However, so plaintiff avers, defendant breached the
agreement by short paying and
non-payment of the goods in the claimed
amount.
[3]
Under the
heading
"Claim
1",
plaintiff avers that the amount claimed is due and payable and that,
as a result of the breach of the agreement by the
defendant,
"damages" had been suffered by plaintiff in the
aforementioned amount. In what is referred to as an alternative,
plaintiff pleaded that it obtained default judgment against defendant
in the High Court of Kwa-Zulu Natal for the claimed amount.
Defendant
applied for rescission of the judgment and in support of that
application Hannelie (on behalf of the defendant) stated
in an
affidavit that defendant
had
made
payments
to
plaintiff
in
respect
of
the
claimed
amount
leaving
an
outstanding
amount
of
R316
282,29.
Plaintiff
averred
that
the
aforementioned affidavit constituted an acknowledgment of debt.
[4]
Defendant in
its plea admitted that the parties entered into a verbal agreement.
It averred that in terms of the agreement the plaintiff
would sell
all the chop produced by Zesto to the defendant, however defendant
would pay R100 per ton more than the average market
price for the
maize chop produced by Zesto during March 2018 in order to assist
Zesto financially. During April 2018 defendant
would pay R100 per ton
less than the average market price for the chop to "balance out
the over recovery during March 2018."
From May 2018 until 31
December 2018 plaintiff was to sell to the defendant the chop at the
market price. In addition, plaintiff
would not earn commission on
sales for the months March 2018 and April 2018. Defendant avers that
plaintiff failed to fulfil its
obligations by adding R30 per ton
commission on the chop during the period 1 March 2018 to 4 April
2018.
[5]
Defendant
avers that plaintiff over charged the defendant for the same
mentioned period in respect of the purchase price in the
amount of
R154 743,80. Defendant pleads that plaintiff refused to sell chop to
defendant after March 2018 resulting in a loss of
R136 082,00 in
respect of defendant's right to recover for the over-payments for the
March period. It was further alleged that
two invoices relied upon by
plaintiff were fictional. Defendant relied thereon that it made five
payments during the period 12
March 2018 to 27 March 2018 totalling
R224 834,60 and which defendant avers plaintiff failed to take into
account. Defendant denied
that plaintiff suffered any damages as
alleged.
[6]
At the
conclusion of the trial much was made by defendant in respect of the
allegation in plaintiff's particulars of claim in as
far as it
averred that plaintiff suffered damages as a result of defendant's
breach of the agreement. Holistically considered,
I am of the view
that plaintiff claims the shortfall or non payment of the
invoices in the claimed amount. It is nowhere in
plaintiff's
particulars of claim averred that it cancelled the agreement with
defendant. On the contrary, it is explicitly averred
that these
amounts were not paid, that plaintiff
duly performed
in terms of the agreement
and that
plaintiff
claims the
amounts due to
them. That approach aligns with the evidence adduced by the plaintiff
and at the same time aligns with the evidence
tendered by defendant.
I am therefore satisfied that plaintiff's claim as set out in the
particulars of claim is to be construed
as a claim for
payment of the balance due and owing to it.
[7]
The plaintiff
called three witnesses, namely Elaine, her brother-in-law Mr Kobus
Theron (Kobus) and the owner of Zesto at the time,
Mr Boeta Grobler
(Boeta). It is common cause that both men, as well as the husband of
Hannelie (Mr Ferdie Roux, testifying on behalf
of the defendant) have
extensive knowledge of the grain market.
[8]
Elaine, the
plaintiff's administration director, testified on the business
dealings between the parties and how she dealt with the
processing
and confirmation of orders received. From the start of business
dealings, the practicality of the agreement between
her and Hannelie
was that Hannelie would contact her with a request for chop. She
(Elaine) would then contact Zesto and establish
the availability of
chop, where after she would communicate back to Hannelie (via phone
or the social platform WhatsApp) the tonnage
of chop available, as
well as the price thereof (as determined on the basis of the average
market price at the time as reflected
by the Sufex pricing index
which varied on a daily basis) and place such an order with Zesto.
The tonnages loaded was confirmed
by Zesto in the form of a weigh
bridge certificate. Elaine averred that invoices were duly sent to
defendant, however defendant
either failed to make payments or did
short payments. She testified on the claimed amounts and payments
with reference to several
documents. In cross-examination she denied
defendant's version that was put to her in respect of the terms of
the agreement of
1 March 2018. In particular, she denied that she
would have agreed to not earning any commission and stated that there
would then
have been no reason for plaintiff to do business as the
commission constituted her only source of income. When confronted
with
the payments "in total 5" amounting to R224 834, 60
she testified that same was in respect of previous deliveries.
[9]
Kobus was
involved in the business dealings between the parties since its
inception.
He
testified
on
the Sufex price of chop during the relevant periods,
and
confirmed it to have been R1 600,00 at the time. Kobus denied the
existence of an agreement whereby the defendant would pay
less or
more as averred pleaded by the defendant, explaining that the
plaintiff was not in a position to negotiate any other price
than
that asked by Zesto. If Plaintiff did not accept the price, Zesto
would sell it to any other customer.
He testified
in respect of a meeting held at Zesto in April with Hannelie in
relation to a discussion at the time about defendant's
arrears
account with plaintiff, and wherein she undertook to put up property
as security for payment that must still be effected.
I might add that
Elaine testified similarly in this respect.
[10]
Boeta likewise
testified that he was present when Hannelie made the undertaking to
make payment and even agreed to put up security
for the outstanding
amount. He denied any agreement on lesser payments on the price of
the chop as determined at the time to be
effected, stating that the
plaintiff never had any relaxation to the terms of the agreement
between the plaintiff and Zesto that
the chop was payable upon
delivery thereof. He explained that he would never had agreed to any
under or overpayments
as it would
not have made any business sense -
that would
have meant that he would either pay "himself' (Zesto) or write
off the amount. He sold chop to several buyers at
the time. No
payment was received, nor was security put up by Hannelie.
[11]
Hannelie and
her husband Mr Ferdi Roux (Ferdi) testified on behalf of defendant.
She confirmed the verbal agreement to be along
the lines pleaded by
defendant. She testified in respect of the five payments and
confirmed that she still held the view that the
payments should have
been subtracted from the claimed amount as it was payments in respect
thereof. Ferdie testified in respect
of factors that should be taken
into account in the determination
of the price
of chop at the time, more specifically the role of the Sufex price on
chop indicating that the price of chop (having
less nutritional value
than grain) is not correlated to Suffex as much as grain. He was,
however, unable to tender any evidence
in respect of the agreement as
alleged by Hannelie, stating that the parties were not married yet at
the time and resided separately
.
[12]
The
versions by the parties in respect of the terms of the agreement of 1
March 2018, are irreconcilable. The payments due and effected
by
defendant are also in dispute.
In
resolving these factual disputes I follow the guidelines as set out
in
Stellenbosch
Farmers' Winery Ltd and another v Martell
&
Cie
S
and
others
[2]
.
[13]
I must say that the witnesses called on behalf of the plaintiff
impressed me in the witness stand. Elaine, in particular,
was a
credible and honest witness who did not shy away from making
concessions where she was questioned on discrepancies in her
bookkeeping. I am satisfied however that she fully explained and
furnished reasons for such discrepancies which were clearly of
an
administrative nature, for example where a typing error occurred on
the numbering of the invoices. At the time her only income
derived
was from the commission that she earned from the business dealings
with Hannelie. It is common cause that the defendant
was the
plaintiff's only client in the chop trading. Elaine testified that
plaintiff did not survive financially as a result of
money due but
not paid.
[14]
In my observation of Hannelie it was evident to me that she is an
intelligent, seasoned and successful business women
who is diligent
and dedicated in conducting business on behalf of the entities whom
she represents. It is not defendant's case
that it did not receive
the tonnages of chop, but rather as testified by Hannelie that she
had been overcharged as pleaded. What
was not pleaded or adduced
under evidence, is that no amounts had been due at the time. Had the
defendant been bona fide in its
opposition to the claimed amounts one
would have expected the defendant to at least make payment of all of
the transactions up
until the last delivery on 4 April 2018 in the
amounts which, on her version, were due and owing by the defendant,
and provide
proof thereof. This was not done. To the contrary, when
confronted with the amounts not paid, Hannelie in my view confirmed
non-payment
by stating: "I stopped payment because I knew I was
done in."
[15]
The plaintiff
duly discovered its banking statements for the time period from
February to April 2018, and Elaine testified on the
payments
reflected therein as received from the defendant, leaving no doubt as
to the amounts so paid. It is common cause that
the defendant did not
make discovery of its banking statements for the same period (or any
other period for that matter). When
confronted during
cross-examination with the reason why the defendant did not discover
its banking statements to serve as proof
of payment, she testified
that she did not have it at hand in court adding "I was their
only client, but they were not my
only supplier", ostensibly to
indicate the vastness of such banking statements. This is, however,
not an explanation that
suffices for the non discovery of the
statements.
[16]
Apart from
banking statements, the defendant company's bookkeeping system would
also have served as proof of payments made to the
plaintiff. The
defendant did not discover documentation in this regard. However, the
plaintiff discovered a ledger (file) of the
defendant's bookkeeping.
Elaine during her testimony alluded to the invoices reflected and
payment thereof, to indicate that payments
were indeed outstanding as
averred by the plaintiff. Hannelie acknowledged that she was in fact
the person who had provided it
upon a request to do so, having
retrieved and mailed it from a computer programme (Pastel).
When
confronted with amounts not reflected as paid, she explained that the
detailed file was not audited. Although she could retrieve
the
audited statements, she did not know that it would be required of her
to have it at court. It is common cause that the audited
version was
never discovered. According to her, she regrettably failed to send
prove of "the last seven" payments to
the plaintiff.
[17]
In my view it
is safe to conclude from the evidence
as a whole
that plaintiff did in fact deliver to the defendant the chop as
referred to in the particulars of claim and for the tonnages
of and
amounts as claimed. In my view, the probabilities favour the
plaintiff that the terms of the agreement did not include any
under
or over- payment of the claimed amount, nor that Elaine would have
sacrificed her commission. I accept the market related
price of the
chop to have been R1
600,00.
I am satisfied that the agreement between the parties included that
defendant could pay within 48 hours from date of invoice.
That
explains how deliveries took place for which plaintiff had not been
paid. The witnesses for the plaintiff corroborated each
other in
material respects which included testimony to the effect that
defendant was in arrears, admitted it and attempted to reach
an
agreement in respect of payment and the putting up of security. I
consider the affidavit made by Hannelie to be an important
corroborating factor. In the affidavit Hannelie did not place in
dispute the invoices in the amount of R732 289,20. Her version
was
rather that five payments in respect thereof had been made totalling
R224 834,60 and that there was a counter-claim exceeding
the balance
of the claimed amount.
[18]
It
is trite that a party pleading payment must prove such a payment.
[3]
The payments relied upon were made respectively on 12 March 2018 (two
payments), 16 March 2018 (two payments) and 27 March 2018,
whilst the
plaintiff's claims were based on deliveries and invoices from 20
March 2018. It goes without saying that Elaine's evidence
in respect
of the payments, namely that they related to deliveries before 20
March, should be accepted. After all, it is not the
defendant's
case
that on 12 and 16 March 2018 it had already paid for deliveries that
were still to be done.
[19]
In the same
affidavit by defendant in support of the rescission application it
was stated that the defendant had a counter-claim
for damages and
loss of commission as a result of plaintiff's breach of contract.
Properly read in my view the affidavit conveyed
that due to the
counter-claim, defendant is not indebted for the outstanding balance
it calculated
.
No
counterclaim for the alleged amounts or losses were instituted
.
[20]
In my view therefore
the plaintiff, on a preponderance of probabilities, succeeded in
proving that defendant is still indebted to
it in the amount claimed
.
There is no
reason why cost should not follow the event. In my discretion I deem
it appropriate that such costs be taxed on scale
B.
[21]
I therefore
make the
following order:
Judgment
is granted in favour of plaintiff and defendant is ordered to pay:
1.
The amount
of R732
289-20.
2.
Interest
on
the
aforementioned
amount
calculated
at
10,5%
per
annum
a tempera
morae from 2 March 2021.
3.
Cost of suit
to be taxed on Scale B.
C
REINDERS J
On
behalf of the plaintiff:
Adv
A S Boonzaaier
Instructed
by:
Podbielski
Incorporated Welkom
c/o
Honey Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
WS
Spangenberg
Spangenberg
Zietsman Attorneys
BLOEMFONTEIN
[1]
Referred
to as back-to-back transactions.
[2]
(427/01)
[2002] ZASCA 98
(6 September 2002).
[3]
Standard
Bank of SA Ltd v Oneanate Investments (Pty)ltd {in liq)
[1997] ZASCA 94
;
1998 (1) SA
811
(SCA).