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2024
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[2024] ZAGPJHC 848
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Warren N.O v Muller (420/2022) [2024] ZAGPJHC 848 (29 August 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number:
420/2022
1.
REPORTABLE: NO
2.
OF INTEREST TO OTHER JUDGES: NO
In
the matter between:
KIM
WARREN N.O.
Plaintiff
and
BEN
MULLER
Defendant
JUDGMENT
This
judgment has been delivered by being uploaded to the CaseLines
profile on and communicated to the parties by email.
Wepener
J
[1]
The plaintiff is the executrix in the estate of the late Mr Andr du
Toit. The defendant, Mr Muller, was a close
personal friend of Mr du
Toit. The plaintiff seeks payment of an amount of R1 323 0000
from the defendant, being amounts lent
and advanced by Mr du Toit to
the defendant during the lifetime of Mr du Toit.
[2]
The amount claimed excludes certain additional amounts advanced to
the defendant by a company of which Mr du Toit was
the director and
shareholder.
[3]
It is common cause that as at 5 August 2020, the defendant agreed and
admitted that the amount advanced by Mr du Toit
was the sum of
R1 322 000. It is also not disputed that a demand for the
repayment of this amount was made on 16 November
2021, and that no
payment was made by the defendant subsequent to the demand.
[4]
The defendant advised that he does not rely on the plea of
prescription which, according to him, was something introduced
by the
attorneys acting on his behalf at the time, but without his
instructions to do so. In the circumstances, I need not consider
the
special plea as it was not persisted with.
[5]
The defendant also testified that the plea, as drafted, was not in
accordance with his instructions to his attorneys.
[6]
Nevertheless, it is of some weight that the plea denies that the
deceased made payments to the defendant in the sum of
R1 323 000
(and also that there existed an agreement of loan). The defendant
averred that the monies paid to him were
for financial assistance to
his business as he did not personally receive these loans but it was
a loan to his business and that
it was, nevertheless, not to be
construed as a loan agreement. During his evidence, the defendant
went further and stated that,
save for a minuscule amount, he had
repaid the full amount advanced prior to the death of Mr du Toit on
28 December 2020.
[7]
The difficulty with the allegation of repayment is that the employee
of Mr du Toit, Ms Olivier, called by the defendant
as a witness, had
no knowledge of the alleged repayments. According to the evidence of
Ms Olivier, she was the right-hand person
of Mr du Toit and who did
everything for him, such as even reading his emails for him and doing
WhatsApp messages. She described
Mr du Toit as a person who recorded
matters meticulously and said that she was quite close to him and
dealt with all aspects concerning
Mr du Toit, including any monies
lent by Mr du Toit.
[8]
The further problem is that the repayment allegation does not appear
in the defendant’s plea. Even if his attorney
pleaded issues
not conveyed by the defendant, the one thing that would be a
highlight is, if a client avers full repayment, that
that allegation,
which would constitute a complete defence to a claim based on a loan,
be set out in the plea. The fact that the
repayment allegation is
absent from the defendant’s plea, places further difficulties
in the defendant’s way.
[9]
A defendant wishing to rely on a payment in his defence must allege
and prove that payment.
[1]
The
defendant’s evidence falls far short of such proof.
[10]
There are vague allegations of repayment of the amount between August
2020 when he agreed that the amount was correct
and the date when the
deceased passed away on 28 December 2020. Not a single document in
support of those alleged repayments was
produced. There is nothing to
show any repayment. The defendant did not discover or produce his own
bank statements, nor that of
his business, to show when amounts were
repaid.
[11]
The defendant attempted to avoid the fact that the loan existed. He
did so in contradictory terms. The plea denied a
loan. In evidence he
attempted to characterise is as anything but a loan, yet referred to
it as a loan. All of this was completely
unnecessary if the amount
advanced had been repaid as the defendant wanted it.
[12]
The probabilities swayed against the defendant. In addition to the
above remarks, in a document, setting out the balance
of the
R1 323 000 which is headed “leuning staat”,
being an incorrect spelling for the Afrikaans word “leningstaat”,
which means a statement setting out the amounts of a loan, the
defendant agreed that the balance is one hundred percent correct.
[13]
On 31 March 2016, the defendant prepared a document setting out his
financial position. In it he referred to the amount
then advanced by
Mr du Toit as “André du Toit Leningsrekening”.
That, too, refers to a loan. During his evidence
the defendant agreed
that the amounts advanced to him was not a gift. If not, the
probabilities are that it was to be repaid, i.e.,
a loan. The
defendant went further, and stated in evidence, that he regarded the
advances as loans. During argument he referred
to the “one
loan” in order to attempt to refute a distinction between the
loans from Mr du Toit and those from his
company. I find that the
defendant’s evidence is most unsatisfactory, and save for the
admissions that the money was lent
to him, I reject his contradictory
versions.
[14]
The plaintiff called Ms Corbett, Mr du Toit’s life partner as a
witness. Her evidence was mainly hearsay and I
was not pressed to
allow the hearsay evidence. However, on the findings that I made
herein, it is not necessary for the plaintiff
to rely on that
evidence.
[15]
Having regard to the totality of the evidence, I am satisfied that
the plaintiff has proven her case on a balance of
probabilities.
16]
In the circumstances, I issue the following order:
The
defendant must pay to the plaintiff:
1. The sum of R1
323 000.00;
2. Interest on the
sum of R1 323 000.00 at a rate of 7% per annum from 16 November 2021
to date of final payment;
3. Costs of the
action which costs will include the costs of counsel on scale B.
Wepener
J
Heard:
26 and 28 August 2024
Delivered:
29 August 2024
For
the Plaintiff:
Adv
L. Acker
Instructed
by KWA Attorneys
For
the Defendant:
In
person
[1]
Pillay
v Krishna
1946 (A) 946 at p 958: “For these reasons I come to the
conclusion that, upon a plea of payment of money, the onus is on
the
defendant, and that if he fails to satisfy the court that there is a
sufficiently strong balance of probabilities in his
favour,
judgement must be given to the plaintiff”