6
Editorial note: Certain information has been redacted from this judgment in compliance with the law.
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 36270/2016
(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. 2023-05-26 DATE: SIGNATURE |
In the matter between:
ASTFIN GAUTENG (PTY) LTD t/a ASSETFIN Plaintiff
(Registration no. 1991/001008/07)
and
JOHAN EDWARD VAN BREDA Defendant
(Identity no: […])
________________________________________________________________________
JUDGMENT
________________________________________________________________________
PA VAN NIEKERK, AJ
[1] Plaintiff is a private company with limited liability which conducts business in Midrand and which inter alia provides finance for the acquisition or rental of business assets.
[2] Defendant is a major male and on the pleadings as well as the evidence adduced in Court the Defendant at all relevant times traded as “Copy Mania”.
[3] Plaintiff instituted action against Defendant and formulated two separate claims based on two “Master Rental Agreements” both dated 18 December 2014. The agreements are identical in form and copies of the agreements are attached to the Plaintiff’s Particulars of Claim respectively as Annexures “A1” to “A4” and “C1” to “C4”. Both agreements are pro forma agreements which are completed by the respective contracting parties and in both the agreements provision is made for the rental of certain specified machines used in the printing industry and in both the agreements Plaintiff is referred to as “Hirer” and Defendant is referred to as “User”.
[4] In respect to both agreements it is pleaded in the Particulars of Claim that on or about 18 December 2014 and at or near Midrand the Plaintiff duly represented by Surine Lombard and the Defendant duly represented by Johanna Susanna van Breda, entered into a written Master Rental Agreement. The Particulars of Claim provides particulars of the printing machines which respectively forms the subject of the two different agreements and proceeds to set out the material terms of the agreements upon which Plaintiff relies for the relief which Plaintiff seeks in the Particulars of Claim.
[5] In the Defendant’s Plea the only admission which Defendant makes is that this Court has jurisdiction to entertain the Plaintiff’s claims, but every further averment made in the Plaintiff’s Particulars of Claim regarding the conclusion of the agreements, and the terms upon which the Plaintiff rely is met with a denial which is couched in the following terms:
“The contents of this paragraph are denied and is Plaintiff put to prove (sic) thereof”.
[6] Defendant further pleads:
“There was never any agreement undersigned by the Defendant binding the Defendant to any agreement with the Plaintiff. The signature on the alleged agreement does not belong to the Defendant.”
[7] After Defendant filed a Notice of Intention to Oppose the matter, Plaintiff applied for summary judgment against the Defendant and in those proceedings the Defendant stated under oath as a defence that he did not sign the agreement and is therefore not bound to the terms thereof.
[8] At the commencement of the trial Counsel acting on behalf of Defendant confirmed that all elements of the Plaintiff’s claim in respect to both agreements were in issue whereafter the Plaintiff proceeded to call three witnesses. For the reasons which follow hereunder it is not necessary to comprehensively analyse the evidence of the three witnesses and it suffices to summarise their evidence as follows:
[8.1] Negotiations to enter into the agreements were conducted in order to change the printing equipment of Defendant’s business which were utilised before 2014 with an alternative brand of machines and all negotiations were conducted with the Defendant’s wife one Johanna Susanna van Breda;
[8.2] The application for finance was submitted to Plaintiff in the name of the Defendant and the Defendant’s proof of residence, bank statements and statement of assets and liabilities were submitted in support of the application for finance;
[8.3] The respective printing machines were delivered to the business premises of “Copy Mania” which are leased in Defendant’s name;
[8.4] The monthly payments in respect of the Master Rental Agreements which the Defendant was obliged to pay in terms of the agreements were in some instances paid by way of a debit order against the Defendant’s bank account;
[8.5] The contractual obligation to insure the business machines were complied with in the sense that the machines were insured by an insurance policy in the name of the Defendant;
[8.6] The Defendant’s wife handed back to the Plaintiff’s agent the necessary documentation, duly signed, which constitutes the rental agreement.
[9] Plaintiff further presented evidence of the outstanding amounts, and submitted a certificate of the outstanding amounts as provided for in terms of the respective agreements.
[10] None of the aforesaid witnesses were cross-examined on any of the elements of the Plaintiff’s claim, with the exception that it was put to each witness called by Plaintiff that the Defendant would testify that he had no knowledge of the agreements, and that he did not sign the agreements.
[11] At the request of the Court, Defendant’s Counsel provided a list containing a description of all the documents in the trial bundle which the Defendant admits he signed, and those which he denies having signed. The Defendant denied having signed the Master Rental Agreements but admitted to sign a document which is titled “RENTAL APPLICATION” dated 13 September 2014 and which were submitted to Plaintiff before the agreements were signed and wherein the applicant for rental is described as “Johan Edward van Breda t/a Copy Mania”. This document identifies Santam as the Defendant’s insurer and further provides for a settlement amount of goods to the value of R144 274.68. Defendant further admitted signing another document on 21 April 2015 titled “AMENDMENT TO THE MASTER RENTAL AGREEMENT” in terms whereof the machine referred to in one of the Master Rental Agreements annexed to the particulars of claim was substituted a few months after the Master Rental Agreements were signed with another machine. This document contains a reference to a “Master Rental Agreement” dated 30 September 2014 entered into between “the parties” being the Plaintiff as “Hirer” and Defendant as “user” which means that Defendant signed a document confirming the existence of a Master Rental Agreement in respect of the substituted business machine entered into between Plaintiff and Defendant. Defendant further admitted signing a document dated 21 April 2015 titled “EQUIPMENT CONFIRMATION” wherein Defendant confirmed that the substituted machine referred to supra were delivered to Defendant, that it is insured by Defendant, and were installed at the address of the business which Defendant admitted he is the owner of.
[12] After closure of the Plaintiff’s case Defendant’s Counsel called Defendant as the only witness who testified on behalf of the Defendant. The evidence of the Defendant can be summarised as follows:
[12.1] Defendant admitted that he was the owner of the business;
[12.2] Defendant admitted that his wife managed the business;
[12.3] Defendant never disputed the authority of his deceased wife to act on his behalf.
[12.4] Defendant testified that his wife passed away during May 2016 whereafter he sold the business to his daughter. He conceded that he could only sell the business if it belonged to him.
[13] It became clear from the Defendant’s evidence that it was aimed at disputing any knowledge about the existence of the agreements or the machines and to dispute any knowledge about the payments that were made in terms of the rental agreement.
[14] When the Defendant was questioned about the documents which the Defendant signed, two which were signed during 2015, the Defendant testified that he signed those documents under the impression that they related to a rental agreement in respect of the business premises leased when Defendant and his deceased wife acquired the business. The evidence which the Defendant gave in this respect was patently untrue, considering the Defendant’s evidence that the business was acquired sometime prior to 2010 (Defendant was extremely vague in this regard) and when it was put to Defendant by Counsel acting on behalf of the Plaintiff during cross-examination as well as by the Court that as an objective fact he could not have had the impression that he was signing a rental agreement in respect of business premises considering the date of those documents (2015) Defendant was clearly at a loss to explain the discrepancy. I have no doubt that the Defendant’s evidence in this regard was fabricated and opportunistic in the sense that the Defendant noticed that those documents referred to “rental” and therefore capitalised on that fact to attempt to convey to the Court that he was under the impression that it related to the rental of the business premises and not in respect of the Master Rental Agreements which forms the subject of the Plaintiff’s causae of action.
[15] I am further of the view that it is highly improbable that the Defendant would have no knowledge whatsoever of the fact that two Master Rental Agreements were entered into with the Plaintiff in terms whereof two large printing machines were utilised in the business premises to generate an income which was utilised not only to pay for the machines but also other business expenses of the business conducted in the name of the Defendant. Defendant also testified that his wife was unable to obtain credit as result of which all such transactions were conducted through his name. In order for this arrangement between the Defendant and his wife to be effective, it would have necessitated discussions amongst themselves relating to the business. I find the Defendant’s evidence in this regard to be highly improbable, and considering the Defendant’s attempt to distance himself from the evidentiary effect of the documents which he admitted to have signed I have no hesitation in making a credibility finding against the Defendant.
[16] During argument of the matter Defendant’s Counsel eventually conceded that, in the event that it should be found that the Defendant’s wife was duly authorised to sign the agreements for and on behalf of the Defendant, that Plaintiff is entitled to the relief as claimed in the Particulars of Claim, save for the issue of costs. Insofar as costs were concerned, Counsel acting on behalf of Defendant submitted that it would be “unfair” that the Defendant be ordered to pay costs on the scale as between attorney and own client, as provided for in the relevant Master Rental Agreements.
[17] The only issue which therefore requires determination relates to the issue whether or not Defendant’s deceased wife signed the agreements as an authorised representative of the Defendant, and if so, the scale of costs.
[18] In Heads of Argument filed on behalf of the Plaintiff it was submitted that the Defendant’s denial of liability is premised on the absence of his signature on the Master Rental Agreements. On a proper analysis of the Plaintiff’s Particulars of claim read with paragraph 5 and paragraph 11 of the Defendant’s Plea thereto, I agree with this submission. The Plaintiff’s explicit reliance on agency in the pleadings are not disputed on the pleadings. On various occasions during the trial as well as during argument Defendant’s Counsel placed on record that agency is not disputed but it was confirmed that the Defendant’s case is namely that he had no knowledge of the agreements. In the Heads of Argument filed on behalf of Plaintiff it is submitted that these concessions regarding agency made by Defendant’s Counsel should be the end of the matter for the Defendant and I agree.
[19] Notwithstanding the aforesaid, for sake of clarity I deem it necessary to deal with the Defendant’s failure to deny the Plaintiff’s pleadings relating to the alleged authority of his wife to sign the agreements on his behalf. It is established law that the denial of the authority of an agent is a special defence and must be specifically and unambiguously pleaded and not left to be inferred from a general traverse of the allegations in the Declaration.1
[20] In the publication Law of Agency of South Africa, 2nd Edition, (De Villiers & McIntosh) on p. 34, dealing with pleadings in relation to contracts made or alleged to have been through an agent, the learned authors state:
“If authority by one party is denied by the other, the matter must specifically plead such denial”.
[21] It has been held that where lack of authority on the part of an alleged agent has not been put in issue in pleadings it cannot be canvassed in evidence without an amendment to the Plea.2
[22] Significantly, it was not put to any of the witnesses who testified on behalf of the Plaintiff that the Defendant’s deceased wife did not have any authority to represent the Defendant in concluding the Master Rental Agreements.
[23] Considering the aforesaid authorities and the Defendant’s failure to dispute the authority of his deceased wife to enter into the agreements, I find that the Plaintiff proved that the Defendant’s deceased wife had the necessary authority to act as the agent of the Defendant at the time when the agreements were entered into.
[24] Insofar as the signatures that do appear on the two respective Master Rental Agreements are concerned, no evidence was produced by either the Plaintiff or the Defendant that the signatures are in fact the signatures of the Defendant’s deceased wife. The Defendant vaguely attempted to suggest that his signatures were “forged” but then seemingly abandoned the notion on further questioning. Significantly, the pleadings contain no averment based on fraud involved in the signing of the agreements. Plaintiff established through evidence that the documents were left in the possession of the Defendant’s wife and were returned the next day, signed. On a balance of probability the Defendant’s deceased wife did sign the Master Rental Agreements. Put otherwise, it is highly improbable that anyone else would have signed it, given the totality of the evidence.
[25] Insofar as costs are concerned, I find no reason why the Defendant is not bound to the terms of the Master Rental Agreements in terms whereof the Defendant will be liable for any costs incurred in enforcing the claims of the Plaintiff on the scale as between attorney and own client. Considering the Defendant’s clear attempt to fabricate evidence such order, in my view, is in any event justified.
[26] I therefore make the following order:
[26.1] In respect of Claim 1:
(1) An order rectifying the MASTER RENTAL AGREEMENT A1-A4 by inserting the date of 10 February 2015 as the commencement date on the said MASTER RENTAL AGREEMENT;
(2) Payment of the amount of R467 925.68;
(3) Interest on the amount of R467 925.68 at the rate of 16.50 % (6 % above the prime interest rate currently at 10.50 %) per annum from 30 March 2016 until date of payment;
(4) Costs of the action on a scale of attorney and own client to be taxed.
[26.2] In respect of Claim 2:
(1) An order rectifying the MASTER RENTAL AGREEMENT A1-A4 by inserting the date of 10 February 2015 as the commencement date on the said MASTER RENTAL AGREEMENT;
(2) Payment of the amount of R194 772.82;
(3) Interest on the amount of R194 772.82 at the rate of 16.50 % (6 % above the prime interest rate currently at 10.50 %) per annum from 30 March 2016 until date of payment;
(4) Costs of the action on a scale of attorney and own client to be taxed.
____________________________
P A VAN NIEKERK
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA
CASE NUMBER: 36270/2016
HEARD ON: 17 and 18 May 2023
FOR THE PLAINTIFF: ADV. R. GRUNDLINGH
INSTRUCTED BY: Van der Westhuizen Attorneys
FOR THE DEFENDANT: ADV. M. DU PLESSIS
INSTRUCTED BY: Theron, Jordaan & Smit Inc.
DATE OF JUDGMENT: 26 May 2023
1 Vide: Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082
2 Nyandeni v Natal Motor Industries Ltd 1974 (2) SA 274 (D) at 279 B – E; Tuckers Land and Development Corporation (Pty) Ltd v Perpellief 1978 (2) SA 11 (T)