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2024
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[2024] ZAFSHC 325
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SASFIN Bank Limited and Another v Makatsang Cleaning Services (Pty) Ltd and Others (5691/2019) [2024] ZAFSHC 325 (17 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable/Not
reportable
Case
number: 5691/2019
In
the matter between:
SASFIN
BANK LIMITED
FIRST
PLAINTIFF
SUNLYN
(PTY) LTD
SECOND
PLAINTIFF
And
MAKATSANG
CLEANING SERVICES (PTY) LTD
FIRST
DEFENDANT
GERT
STEFANUS VENTER
SECOND
DEFENDANT
FRANCOIS
DU TOIT
THIRD
DEFENDANT
Coram:
Loubser J
Heard:
23 July 2024
Delivered:
17 October 2024
Summary:
Value of evidence presented by corporation’s
employee as to the indebtedness of the Defendants, as it appears from
documents
she has access to and with which she has familiarized
herself – in action proceedings where such evidence remained
unchallenged
and uncontradicted.
ORDER
1.
The Second and Third Defendants are ordered to pay
the First Plaintiff, jointly and severally, the one paying the other
to be absolved,
the sum of R520 900.01 together with interest on the
said amount at the rate of 16.25% per annum from 1 April 2019 to date
of final
payment.
2.
The Second and Third Defendants are ordered to pay
the costs of suit, including the cost of the summary judgement
application, on
the attorney and client scale, including the fees of
counsel on scale C, jointly and severally, the one paying the other
to be
absolved.
JUDGMENT
LOUBSER
J
[1]
In this action the Plaintiffs claim from the
Second and Third Defendants, jointly and severely, an amount of R520
900.01 plus interest
at the rate of 16.25% per annum from 1 April
2019 to the date of payment. In terms of the Particulars of Claim,
the claim arises
from a written guarantee signed by the Second and
Third Defendants on 29 June 2016 whereby they bound themselves
jointly and severely
as guarantors and co-principal debtors for the
proper and punctual payment by the First Defendant to Itec or its
cessionaries of
all amounts owing in terms of a rental agreement
between the First Defendant and Itec.
[2]
The Plaintiffs further pleaded that the First
Defendant committed a material breach of contract by failing to
maintain regular monthly
payments in terms of the rental agreement,
resulting in an outstanding debt totaling R520 900.01 plus interest.
The First Defendant,
however, was placed in liquidation on 5 April
2018, and hence the claim against the Second and Third Defendants.
[3]
Furthermore, it is the case for the Plaintiffs
that Itec ceded all its rights, title and interest in the rental
agreement to Absa
Finance, which in turn ceded those rights to the
Second Plaintiff. The Second Plaintiff then ceded the rights to the
First Plaintiff.
The position is therefore that, in terms of all the
cessions, it is actually only the First Plaintiff who is now claiming
from
the Second and Third Defendants.
[4]
In terms of the rental agreement concluded between
Itec and the First Defendant, Itec rented certain office equipment as
described
in an addendum to the agreement, to the First Defendant.
The agreement further stipulated that,
inter
alia
, Itec would be entitled to cede
all of its rights in and to the agreement to any third party without
notice to the First Defendant.
A certificate signed by any of the
managers of Itec would be proof of the amount of the indebtedness of
the First Defendant, and
it would not be necessary for Itec to prove
the appointment of the person signing such certificate. This same
stipulation also
appears in the guarantee signed by the Second and
Third Defendants.
[5]
In their Plea, the Second and Third Defendants
pleaded that they have no knowledge of the cessions that took place,
as alleged.
The allegation that the rental agreement was concluded by
duly authorised representatives of Itec and the First Defendant, was
met by a blunt denial. The material terms of the agreement relating
to Itec’s entitlement to cede its rights and to the clause
stipulating that a certificate signed by a manager would serve as
proof of the indebtedness of the First Defendant, was also bluntly
denied in the Plea. However, the Second and Third Defendants admitted
that they have signed the guarantee concerned, and they also
admitted
the material terms of the guarantee. Curiously enough, one of the
material terms of the guarantee stipulated that a certificate
signed
by an Itec manager of other authorised person, would be proof of the
amount of the First Defendant’s indebtedness,
and that it would
not be necessary for Itec to prove the appointment of the person
signing the certificate.
[6]
Furthermore, the Second and Third Defendants
‘
vehemently’ denied the
allegations that the First Defendant failed to maintain regular
monthly payments. No further particulars
were provided to
substantiate this denial. They also bluntly denied the alleged
outstanding amount of R520 900.01, as confirmed
in a certificate of
balance issued by the First Plaintiff.
[7]
Upon receipt of this Plea, the First Plaintiff
made application for summary judgement against the Second and Third
Defendants on
the premise that they have not disclosed a
bona
fide
defence and that the plea has been
filed solely for the purpose of delay. The application came before
Mbhele, ADJP. In dismissing
the application, she pointed to the fact
that the two Defendants deny that they owe the amount claimed in the
summons, and that
they have requested the Plaintiffs to furnish them
with detailed statements reflecting all the payments made from the
inception
of the contract. The statements then provided showed the
following: The total amount owing as at 30 April 2019 is R549 462.45,
as opposed to R520 900.01 reflected in the certificate of balance
attached to the summons. Further, there is an amount described
in the
statement as ‘Non Rental Charges/Past Due Amount’
totaling R168 540.95. Thirdly, the Plaintiff further claims
legal
fees/costs in the amount of R23 252.75 and late charges in the amount
of R9 858.32, which amounts are not catered for in
the contract. The
learned Judge then mentioned that all the aforementioned amounts have
not been explained nor accounted for in
the summons. She dismissed
the application with costs to be costs in the cause, and granted the
Second and Third Defendants leave
to defend the action.
[8]
The action proceedings then came before this
Court. The Plaintiff called only one witness to testify, namely Ms.
Minenhle Moyo.
She is the legal co-ordinator of the First Plaintiff.
She testified that if there is some breach of a contract that was
concluded
with the First Plaintiff, the matter ends up with her. If
necessary, the matter is then handed over to attorneys. The First
Plaintiff
has a centralized storage space for all documents, and she
has access to all those documents. She testified that she has
familiarised
herself with all the documents relevant to this case.
She further explained that the First and Second Plaintiffs belong to
the
same group of companies, and they do business in the buying of
rental agreements. The Second Plaintiff is the marketing arm of the
First Plaintiff. Itec is a supplier of equipment, and she deals with
Itec on a regular basis.
[9]
Ms. Moyo further dealt with the rental agreement
entered into between Itec and the First Defendant, and more
specifically with the
material terms thereof, as already alluded to
herein. She also traversed the cession instruments of the rights in
and to the rental
agreement from Itec to Absa Finance, from Absa
Finance to the Second Plaintiff, and from the Second Plaintiff to the
First Plaintiff.
Ms. Moyo then referred to the certificate of balance
issued by the First Plaintiff and mentioned that the certificate was
signed
by a Mr. Vorster, who is the senior litigation manager of the
First Plaintiff. She also confirmed that the First Defendant has
failed to make payment in terms of the rental agreement and is
indebted to the First Plaintiff in the amount reflected in the
certificate
of balance.
[10]
In cross-examination Ms. Moyo testified that this
is her fifth year with the First Plaintiff, and that she became the
legal co-ordinator
of the First Plaintiff, after summons was issued.
She conceded that the main cession agreement between Itec and Absa
Finance was
not concluded on 24 April 2004, as alleged in the
Particulars of Claim, but on 29 April 2004. She further confirmed
that she does
not know Mr. Duyver, who has signed the main cession
agreement on behalf of Itec.
[11]
Significantly, the evidence of this witness
regarding the terms of the rental agreement, the cessions of the
rights in terms of
the agreement, the failure of the First Defendant
to make payment as stipulated in the rental agreement, and the amount
of the
claim as reflected in the certificate of balance, remained
unchallenged during the cross-examination. After the
cross-examination,
the case of the Plaintiff was closed, whereupon
the Second and Third Defendants also closed their case.
[12]
In presenting final argument in the matter,
counsel for the Plaintiffs submitted that the Plaintiffs are entitled
to judgement against
the two Defendants, since the Plaintiffs have
succeeded in discharging the onus resting upon them. On behalf of the
Defendants,
it was submitted that the Plaintiffs have failed to prove
that the entities named Absa Finance, Sunlyn and Sasfin (the Second
and
First Plaintiffs respectively) were incorporated entities and
that the cessions, as alleged, had taken place. They have further
failed to prove that there was a failure to pay rentals on the part
of the First Defendant, and what the outstanding amount payable
by
the Defendants actually is. By reason of the failure to prove these
aspects, the Court should make an order of absolution of
the
instance, it was submitted.
[13]
Now it is common cause between the parties that
Itec and the First Defendant concluded a written rental agreement on
or about 19
th
June
2016, and the terms of the agreement are not in dispute. It is also
common cause that the Second and Third Defendants bound
themselves
jointly and severally as guarantors on behalf of the First Defendant.
What is in dispute, is that the Plaintiffs are
juristic persons, that
the aforesaid cessions indeed took place, that the parties in the
cession agreements were represented by
authorized representatives,
and that the outstanding amount in respect of the rental agreement
amounts to the sum of R520 900.01,
as it appears from the certificate
of balance issued by the First Plaintiff.
[14]
Having regard to what is in dispute, the question
arises to what extent the Court can rely on the evidence of Ms. Moyo.
To put it
differently, what is the evidentiary value of her
testimony? It is clear that she was not personally involved in the
transactions
that took place between the parties and the other
entities involved. She was not even the legal co-ordinator of the
First Plaintiff
at the time that summons was issued in this matter.
Now that she has become the legal co-ordinator, she has access to all
documents
held in the centralized storage space of the First
Plaintiff. She has familiarized herself with all documents relevant
to this
case. In presenting evidence, she placed,
inter
alia
, the rental agreement, the
guarantee provided by the two Defendants, the contracts of cession
and the certificate of balance before
the Court. She also confirmed
that the First Defendant has failed to make payment in terms of the
rental agreement and that the
outstanding amount is the one reflected
in the certificate of balance.
[15]
The
evidence of Ms. Moyo at least constitutes
prima
facie
evidence
of the aspects that the Plaintiffs have to prove. For instance, the
cessions of the rights of Itec and the fact that the
instruments of
cession were signed by duly authorized representatives of the
relevant parties, appear to have so taken place on
the face of the
documents itself. At the same time, the Second and Third Defendants
failed to challenge the evidence on any of
these or the other aspects
in respect of which Ms. Moyo testified. To make it worse, they failed
to provide any evidence to contradict
the evidence so presented.
[16]
In
Firstrand Bank Ltd v Johannes Jacobus Meyer and Another
[1]
it was held that “the deponent is indeed an office bearer of
the plaintiff who would ordinarily in the discharge of his duties
obtain personal knowledge of arrear payments and the extent thereof.
He declares that he is in possession of all the plaintiff’s
documentation relating to the cause of action. It is not in dispute
on the papers that this is correct. In the circumstances, I
do not
consider that the second argument can succeed.” In the present
case, the rental agreement expressly provides for the
right to cede
and to transfer all rights in and to the rental agreement, without
prior notice to the First Defendant. The Plaintiffs
have placed
before this Court the relevant written instruments of cession which
on the face of it appears to be regular and valid.
In Hippo Quarries
(Tvl) (Pty) ltd v Eardley
[2]
the
following was stated by Nienaber, JA: “The cession was thus an
essential link in the plaintiff’s case against the
defendant.
The plaintiff had to prove its authenticity. It did so by producing
an apparently regular and valid written cession.
The evidentiary
burden thereupon shifted to the defendant to show that the document
in reality was not what it seemed to be.”
[3]
[17]
In
any event, it needs mentioning that it is not open to persons in the
position of the Second and Third Defendants herein, who
were not
parties to the cession agreements, to challenge the validity of those
agreements. It is only the contracting parties themselves
that can do
so.
[4]
[18]
It
follows that, on a balance of probabilities, the evidence of Ms. Moyo
stands to be accepted by this Court. It is consequently
found on the
basis of the documents that she placed before the Court, that the
Plaintiffs are juristic persons, that the cessions
in question did
indeed take place, and that the parties in the cession agreements
were represented by duly authorized representatives.
However,
something more has to be said about the certificate of balance issued
by the First Plaintiff and the consequent amount
of the claim
instituted by the Plaintiffs.
[19]
The
certificate of balance no doubt provides
prima
facie
proof
of the amount of indebtedness of the First Defendant. When no
evidence is presented by the Defendants to disturb that
prima
facie
evidence
provided by the certificate then the evidence becomes sufficient
proof, for instance where the Defendants closed their
case without
having led any evidence whatever.
[5]
This is what happened in the present case.
[20]
Both the rental agreement and the guarantee signed
by the Defendants stipulate that a certificate signed by any of the
managers
of Itec would be proof of the amount of the indebtedness of
the First Defendant. It has been submitted on behalf of the
Defendants
that the present certificate issued is worthless because
it was not signed by a manager of Itec, but by a manager of a
different
entity, namely the First Plaintiff. I do not agree with
this contention. In their guarantee, the Second and Third Defendant
agreed
that a certificate signed by an Itec manager or other
authorized person, would be proof of the amount of the First
Defendant’s
indebtedness. In their plea, they admitted the
material terms of the guarantee.
[21]
In presenting final agreement, counsel for the
Defendants conceded that the contents of the rental agreement between
Itec and the
First Defendant is not in dispute. The rental agreement
stipulated that Itec would be entitled to cede all of its rights in
and
to the agreement to any third party without notice to the First
Defendant. This being the case, the Second and Third Defendants
can
hardly pretend that it was not within their contemplation that a
cessionary of Itec would need to issue the said certificate
in order
to show the amount of indebtedness. It speaks for itself that the
need for such a certificate could arise only a long
time after the
cession had taken place, during which period the First Defendant
could have breached the rental agreement without
any involvement or
knowledge of Itec. Viewed as such, it can safely be accepted that it
was tacitly agreed between the Defendants
and Itec that the
certificate could be issued not only by Itec, but also by any of its
cessionaries at the relevant moment. I consequently
find that the
certificate issued by the First Plaintiff is a true and acceptable
reflection of the indebtedness of the first Defendant
at the time.
[22]
In
the premises, the action of the Plaintiffs must succeed. As to costs,
the Second and Third Defendants have agreed in clause 11
of the
guarantee that any costs orders shall be made on the attorney and
client scale. I have no reason to depart from that agreement.
[23]
The following order is made:
1.
The Second and Third Defendants are ordered to pay
the First Plaintiff, jointly and severally, the one paying the other
to be absolved,
the sum of R520 900.01 together with interest on the
said amount at the rate of 16.25% per annum from 1 April 2019 to date
of final
payment.
2.
The Second and Third Defendants are ordered to pay
the costs of suit, including the cost of the summary judgement
application, on
the attorney and client scale, including the fees of
counsel on scale C, jointly and severally, the one paying the other
to be
absolved.
P.J. LOUBSER, J
For
the Plaintiffs:
Adv.
S. Aucamp
Instructed
by:
ODBB
Attorneys Inc, Sandton
c/o
Symington and De Kok, Bloemfontein
For
the Second and Third Defendants:
Adv.
S. J. Reinders
Instructed
by:
Van
Wyk and Preller Inc, Bloemfontein
[1]
Unreported
decision of the Eastern Cape Division per Esteen, J under case
number 3482/2010 delivered on 17 March 2011
[2]
1992
(1) SA 867 (AD)
[3]
At
873 D-E
[4]
Letseng
Diamonds Ltd v JCI Ltd and Others 2009(4) SA 58 (SCA) at para 23;
Corporate Finance Solutions (Pty) Ltd v Dwergieland
Kleuterskool CC
and Others, unreported Judgment of the Full Bench of South Gauteng
High Court, case no. A5020/2011
[5]
Senekal
v Trust Bank of Africa Ltd 1978(3) SA 375 (AD) at 383 B-C