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[2018] ZASCA 84
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Stoltz v Steenkamp (127/17) [2018] ZASCA 84 (31 May 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 127/17
In
the matter between:
JAN
GEORGE GABRIEL
STOLTZ
APPELLANT
and
PROF
L J S
STEENKAMP
RESPONDENT
Neutral
citation:
Stoltz v
Steenkamp
(127/17)
[2018] ZASCA 84
(31 May 2018)
Coram
Shongwe
ADP, Majiedt and Saldulker JJA and Rogers and Schippers AJJA
Heard:
22 May 2018
Delivered:
31 May 2018
Summary:
Contract – purchase and sale – approach to
mutually destructive versions restated – purchase price not
proved.
ORDER
On
appeal from
:
Gauteng Division, Pretoria (Du
Plessis J sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Majiedt
JA
(Shongwe ADP,
Saldulker JA and Rogers and Schippers AJJA
concurring
):
[1]
The appellant, Mr Jan George Gabriel Stoltz, sold a 1995 model Case
harvester to the respondent, Prof L J S Steenkamp, during
2006. The
purchase price of the harvester was in dispute. Mr Stoltz sued Prof
Steenkamp for the balance of the purchase price in
the Gauteng
Division, Pretoria. Du Plessis J upheld the claim. On appeal to the
Full Court of that Division, the matter was remitted
to the trial
court for the hearing of further evidence, discovered by Prof
Steenkamp shortly before the appeal was to be heard
by the Full
Court. Du Plessis J, after hearing the new evidence, reversed his
first decision and dismissed the action. The appeal
is before us with
the leave of the high court.
[2]
Most of the facts, excluding the disputed purchase price, were common
cause and are briefly as follows. The parties had been
close friends
for almost 40 years. The harvester was sold to Prof Steenkamp in
terms of an oral agreement. The agreement was concluded
some time
between December 2005 and July 2006 – precisely when is
disputed. The harvester was delivered to Prof Steenkamp
at the end of
August 2006. It is common cause that Prof Steenkamp had to settle the
outstanding debt on the harvester of R341 134.55
with Absa Bank,
which had financed the harvester. He did so on 24 July 2006. The crux
of the disputed purchase price is that Prof
Steenkamp alleged that
the outstanding balance with Absa constituted the full purchase
price. Mr Stoltz, on the other hand, averred
that the purchase price
was R750 000. He sued for the sum of R408 865.45, being the
difference between the alleged purchase price
and the settlement
amount. He alleged that this amount was to be paid in three equal
annual instalments by the purchaser, Prof
Steenkamp.
[3]
On the common cause facts Mr Stoltz had bought the harvester in 2001
for the sum of R525 000. According to him, he held an auction
of his
farming equipment at the end of 2005. At the auction he had declined
an offer of R600 000 for the harvester. After
the conclusion of
the oral agreement, repeated requests for payment of the balance went
unheeded, according to Mr Stoltz. He then
started recording his
telephone conversations with Prof Steenkamp. Transcripts of the
conversations were handed in as an exhibit
by consent.
[4]
Professor Steenkamp’s version was that the agreement was that
he would buy the harvester for the amount still owed on
it to Absa.
He did so and took delivery of the harvester. He was unaware of being
recorded during his telephone conversations and
was unable to admit
or deny the contents of the transcripts. He could recall having
attended the auction where he made a bid of
R350 000 for the
harvester. The harvester was knocked down to another bidder for R400
000, although Prof Steenkamp was unsure of
this amount. Prof
Steenkamp denied that there had been a rejected offer of R600 000.
[5]
A valuation by an assessor and loss adjuster, Mr Roelf van der Merwe,
dated 26 October 2010, was handed in by agreement. The
content of the
valuation was admitted. Mr van der Merwe valued the harvester at
between R320 000 and R400 000 as at May 2006. He
concluded that ‘this
is a fair reflection of the value at the time of purchase and we are
satisfied that R350 000 is a good
price for the unit purchased by
Prof Steenkamp at the time’.
[6]
In his first judgment, Du Plessis J decided the matter on the
probabilities. He regarded both parties as poor witnesses (with
Mr
Stoltz only marginally better than Prof Steenkamp), whose different
versions could not be relied upon for a determination of
the main
issue. He adjudged the probabilities to favour Mr Stoltz on primarily
two grounds, namely the contents of the transcripts
and, secondly,
the fact that Mr Stoltz had declined an offer of R600 000 for the
harvester at the auction.
[7]
When the matter was heard by the Full Court it merely ordered that
the application for remittal to the trial court be granted.
The Full
Court did not set aside the trial court’s order, nor did it
issue directions as to how the further evidence was
to be dealt
with. Faced with this glaring omission, Du Plessis J
commendably, with the parties’ consent, adopted a
sensible
approach and limited the hearing to the new evidence (a disputed
document) and matters related thereto.
[8]
The further evidence is a handwritten document which purports to
record aspects of the sale of the harvester. It reads as follows
(translated by me, following the Afrikaans as literally as
possible)
[1]
:
P.O.
Box 170
Ogies
2230
10
December 2005
To
whom it may concern
;
The
undersigned hereby declares that Prof L J S Steenkamp (ID [...]) has
paid to me a deposit in the sum of R35, 000-00 to me in
respect of
harvester Case 2188. The rest for which I am still indebted to Absa
bank +- R333 000.00 he will arrange financing with
Absa which will
amount to the full sum for which I am indebted to the bank which will
finalize the total purchase amount of the
harvester.
Signed
:
(Stoltz) on 10 December 2005 at Ogiesfontein
ID
[...]
[9]
Prof Steenkamp testified that he accidentally discovered the document
some four days before the hearing of the appeal by the
Full Court.
Although he initially said that he found the original, it became
clear that what he found was a copy. The whereabouts
of the original
is unknown – on his version, it was probably with Absa. The
last part of the document, commencing with the
words ‘which
will finalize the total purchase amount of the harvester’ and
the words ‘on 10 December 2005
at Ogiesfontein’,
were alleged to have been inserted afterwards by Prof Steenkamp, ie
after the document had been signed
by Mr Stoltz. It was common cause
that Prof Steenkamp was the author of the document and that it was
not a deed of sale. It appears
from the evidence that the document
was intended to assist Prof Steenkamp with his application for
financing at Absa Bank. It was
meant to impress the bank, though how
exactly that was to happen is unclear.
[10]
Despite the inscriptions on the document reflecting that it was
signed by Mr Stoltz at Ogiesfontein on 10 December 2005, it
was his
evidence that he had in fact signed it while hospitalized at the
Urology Hospital in Pretoria during February 2006. Two
handwriting
experts testified regarding the disputed part of the document. On
behalf of Prof Steenkamp, Colonel Gerhardus Cloete
testified that it
was not possible to say whether or not the disputed parts had been
inserted afterwards – particularly in
the absence of the
original, there was no balance or probability either way. Mr Jannie
Bester, on behalf of Mr Stoltz, was adamant
that the disputed parts
had indeed been added afterwards. This difference in the opinions of
the experts is not germane to the
main issue. The matter can be
decided on the undisputed part of the document and on other evidence.
[11]
In dismissing the claim after hearing the further evidence, Du
Plessis J regarded the probabilities (particularly the harvester’s
market value and the evidence regarding Mr Stoltz’s precarious
financial position), and the existence and contents of the
undisputed
portion of the document, as sufficient to find against Mr Stoltz. Du
Plessis J found that Mr Stoltz had failed to prove
the purchase price
of the harvester. For the reasons that follow I am of the view that
this conclusion by Du Plessis J as trial
Judge is unassailable.
It is well-established that an appellate court has very
limited powers to interfere with the factual findings of a trial
court.
Absent palpable misdirections by the trial court, its factual
findings are presumed to be correct (
R v
Dhlumayo & another
1948(2) SA 677(A) at
705-706).
[12]
The approach to resolving two irreconcilable, mutually destructive
factual versions is well-established (
Stellenbosch
Farmers’ Winery Group Ltd and another v Martell & Cie SA
and others
[2002] ZASCA 98
;
2003 (1) SA 11
(SCA) para 5). The record bears out the findings by Du Plessis J that
neither Prof Steenkamp nor Mr Stoltz could be relied on as
witnesses.
Both of them were poor in their testimony, evasive (Prof Steenkamp
more so than Mr Stoltz), contradictory and mendacious
in certain
respects. They conceded that they had agreed to make a false
representation to the bank with regard to the deposit of
R35 000
reflected in the document as having been paid by Prof Steenkamp. This
was, on their own admission, not an isolated incident
– they
had previously in other instances connived to convey untruths to
financial institutions to obtain credit. Absent credible
testimony,
regard must be had to the probabilities on the main issue.
[13]
The undisputed part of the document was common cause. That favours
Prof Steenkamp’s version that the purchase price was
the
outstanding balance due to Absa. If Mr Stoltz was correct, one would
have expected the sum of R750 000 to feature somewhere
in the
document. The most compelling piece of evidence, as far as the
probabilities are concerned, is in my view the market value
of the
harvester. The following factors impel me to the conclusion that the
harvester was worth far less than R750 000:
(a)
On the uncontested valuation of Mr van der Merwe, the harvester was
worth between R320 000 and R400 000 in May 2006. I accept
that this
valuation was obviously not known to either party at the material
times during 2006, but it has some relevance.
(b)
The evidence regarding the alleged R600 000 bid at the auction is
unreliable. Its veracity is dependent on Mr Stoltz’s
evidence
only. Absent independent corroboration from, for example, the
auctioneer or from Stoltz’s neighbours, the Truters,
who
allegedly made the bid, that evidence cannot be relied upon.
(c)
Mr Stoltz had purchased the harvester for R525 000 five years before
the sale to Prof Steenkamp. The harvester had been in constant
use
and subject to routine wear and tear. It must have depreciated in
value by 2006.
(d)
Professor Steenkamp did not seek finance from Absa beyond the amount
required to discharge Mr Stoltz’s indebtedness to
the bank.
[14]
Du Plessis J was plainly correct in his finding that, on the
probabilities, Prof Steenkamp would not have paid R750 000 for
the
harvester and that Mr Stoltz had failed to prove the purchase price.
The trial Judge’s findings are justified by the
evidence and
there is no basis to interfere with it. The appeal must fail.
[15]
The following order issues:
The
appeal is dismissed with costs.
______________________
S
A Majiedt
Judge
of Appeal
APPEARANCES:
For
Appellant:
F Erasmus
Instructed
by:
Van Heerden & Brummer Inc, Witbank
Honey Attorneys,
Bloemfontein
For
Respondent:
H Fourie
Instructed
by:
Tjaard du Plessis Inc, Pretoria
Symington de Kok Inc,
Bloemfontein
[1]
The Afrikaans version reads:
Posbus
170
Ogies
2230
10
Desember 2005
Aan
wie dit mag aangaan
;
Hiermee
verklaar ondergetekende dat Prof L J S Steenkamp (ID [...]) aan my
‘n deposito ten opsigte van stroper Case 2188
betaal het ten
bedrae van R35 000.00. Die res wat ek aan Absa bank nog verskuld is
+- R333 000.00 sal hy by Absa finansiering
reël wat die hele
bedrag wat ek nog skuldig is aan die bank sal bedra wat die totale
koopsom van stroper afhandel.
Geteken:
(Stoltz) op 10 Desember 2005 te Ogiesfontein
ID
[...]