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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 48445/12

DATE: 3 SEPTEMBER 2015

PEC METERING (PTY) LTD............................................................................................PLAINTIFF

K HARALABOUS t/a HARRY’S FRIENDLY GROCER............................................DEFENDANT

JUDGMENT

MSIMEKI J:

INTRODUCTION

[1] The plaintiff instituted this action against the defendant for payment of an amount of R213,655.42 together with interest at the rate of 15.5% per annum from date of demand to date of final payment as well as costs.

BRIEF BACKGROUND FACTS

[2] The plaintiff's case is that it supplied electricity to tenants of Reyno Ridge Centre. The defendant was one of the tenants. The plaintiff alleges that it concluded an oral agreement with the defendant in terms of which it supplied electricity to the defendant on a continuous basis. The defendant had to pay for the electricity supplied and consumed. The plaintiff contends that the defendant paid for the electricity supplied until a problem arose. The defendant then stopped paying the plaintiff for the electricity that he was consuming. The plaintiff contends that discussions failed to yield results. The plaintiff then instituted this action which the defendant defends.

[3] Advocate PJ Greyling (Mr. Greyling) and Advocate T.P. Kruger (Mr. Kruger) represented the plaintiff and the defendant respectively when the matter was argued.

[4] The defendant pleaded to the plaintiff’s declaration and later amended the plea. The amended plea forms pages 17-20 of the pleadings bundle. The plaintiffs replication runs from page 65 to page 68 of the same bundle. To the amended plea and the plaintiffs replication documents are annexed.

[5] The defendant, in the main, denied that he concluded the oral agreement as alleged by the plaintiff with the plaintiff.

[6] It is noteworthy that the plaintiff pleaded that the oral agreement had express

alternatively implied and further alternatively tacit terms.

[7] These terms, according to the plaintiff, are that:

“3.1 The Plaintiff will supply electricity to the Defendant’s premises on a continuous basis;

3.2 The Plaintiff will monthly in arrears invoice the Defendant which account will be paid immediately;

3.3 The tariffs and charges used by the Plaintiff will be according to the Local Supply Authority in accordance with the National Electricity Regulator of South Africa;

3.4 The Plaintiff operates according to the by-laws of the Local Supply Authority;

3.5 The Plaintiff is entitled to collect a risk deposit from the Defendant calculated according to the relevant consumer qualification, unless agreed otherwise between the landlord of the specific building and the Plaintiff;

3.6 Interest at a maximum interest rate chargeable in terms of the Usury Acts is payable in respect of accounts paid after the due date or on any overdue or outstanding amounts;

3.7 The Plaintiff is entitled to terminate supply to the Defendant’s premises in the unlikely event of non-payment;

3.8 The Defendant is liable for consumption on the premises from the date of which usage commences until the date of which the Plaintiff receives a

Written notice of vacation of the premises from the Defendant and further no less than 14 (fourteen) days prior to the vacation;

3.9 in the event of a dispute between the Plaintiff and the Defendant; the Defendant is not entitled to defer payment until settlement of the dispute and must continue to settle the monthly consumption charges in full while the matter is being investigated;

3.10 The reading of the electricity meter shall be prima facie proof of the consumption of electricity at the premises unless otherwise proved by the Defendant;

3.11 If at any stage during the period of the agreement and for any reason whatsoever the Defendant’s electricity account has to be adjusted and/or recalculated resulting in an outstanding and/or balance owing to the Plaintiff, the Plaintiff shall, as soon as the adjustment can be made, recalculate the outstanding balance and invoice the Defendant accordingly, which amount the Defendant shall pay at the end of the month so invoiced. ”

[8] The plaintiff, in its replication, pleaded that the defendant during 2003, presented an application in terms of which the plaintiff continued with its oral agreement with the defendant as pleaded in paragraph 3 of the plaintiff’s declaration as amplified by the terms of the May 2003 application “and continued to supply electricity to the defendant, alternatively supplied electricity to the defendant since.” A copy of the application to have electricity supplied to the defendant is annexure ‘PR1-2’ to the plaintiffs replication.

[9] In the event that the court found that no agreement to supply electricity by the

plaintiff to the defendant existed or exists then and in that event, and in the

alternative, the plaintiff pleaded that:

“1.5.1 The Plaintiff, mistakenly under the wrong impression that such an agreement to supply electricity to the Defendant is in full force and effect supplied electricity to the Defendant;

1.5.2 The Plaintiff supplied electricity to the Defendant in the amount of R213 655.42 over a period of three months during 2012;

1.5.3 The Defendant had full usage of the electricity so supplied and used the electricity to its benefit and to his advantage;

1.5.4 The Plaintiff had to reimburse the local municipality for the electricity used by the Defendant and did so;

1.5.5 In the premises the Defendant was and is unjustly enriched qua the Plaintiff;

1.5.6 In the further premises the Defendant is liable to the Plaintiff for repayment in the amount ofR213 655.42 or as claimed. ”

[10] The plaintiff here bases its pursuit for payment on undue or unjust enrichment.

THE ISSUES

[11] These are whether:

1. The plaintiff and the defendant concluded an agreement which entitles the plaintiff to recover the amount of R213 655.42 from the defendant.

2. In the event of the court finding that the agreement existed or exists, the plaintiff can claim payment to it by the defendant of the said amount of R213 655.42.

3. The plaintiff, in the event that the Court finds that no agreement was concluded as alleged, can base its claim on unjust enrichment.

[12] Mr. Kruger, for the defendant, submitted that the plaintiff had failed to prove that the agreement, as alleged by the plaintiff, existed or exists. The plaintiff’s claim, according to him, on this basis alone, ought to be dismissed. Mr Kruger further contended that the plaintiff could not succeed with its claim based on unjust enrichment. The contention was that the plaintiff had failed to prove the requirements necessary to sustain a claim based on unjust enrichment. In any case it was further contended that the claim in terms of section 11 of the Prescription Act, 68 of 1969 had prescribed.

[13] Mr. Greyling contended that the plaintiff’s case had to be assessed on its own without any reference to any other matters. Pleadings, annexures thereto and statements in cross-examination, according to him, do not constitute evidence. Mr. Kruger did not seem to have problems with this. It is Mr. Greyling’s submission that the plaintiff’s case must be assessed upon inferences which should be properly drawn.

THE LAW

[14] In Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER722 at 733 E-F the court said:

“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. ”

Smallberger AJA in S v Mtsweni 1985(1) SA 590(A) at 593 E-F stressed that inference must be based on properly proved objective facts and must also be distinguished from speculation. See also Skilya Property Investments (Pty) Ltd v Lloyds of London Underwriting Syndicate NOS 960, 48 1183 and 2183 2002(3) SA 765 (TPD) at 780 H-l. Watermeyer JA in R v Blom 1939 AD 188 at 202-203 said:

“ The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn."

In SKILYA Property Investments (Pty) Ltd v LLOYDS of London (supra) at 781 B-C Southwood J said:

“Where more than one inference is possible on the objective proved facts the Court may by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one. And in this context “plausible”has the connotation of ‘acceptable, credible, suitable’ See also Govan v Skidmore 1951(1) SA 732(N) at 734 C-D; Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147(A) at 159 C-D; AA Onderlinge Assuransie Beperk v De Beer 1982 (2) SA 603 (A) at 614 H and Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983(1) SA 978(A) at 981 A-D.

[15] The defendant, in the amended plea, pleaded that he had leased his store from Emerald Sky Properties 126 (Pty) Ltd (Emerald) in terms of an oral agreement of 2003. In 2007 the oral agreement was replaced by a written agreement. Emerald supplied electricity to the defendant who paid all the charges therefor to Emerald in accordance with the oral and the written agreements.

[16] Mr. Kruger submitted that where the defendant denies the plaintiff’s version and pleads an additional term as a defence, the plaintiff bears the onus to prove his/her version of the contract if the claim is to succeed. The plaintiff may have to prove the negative for an example that the term alleged by the defendant was not part of the contract. See Dave v Birrell 1936 TPD 192; Kriegler v Minitzer 1949 (4) SA 821 (A); Nel v Nelspruit Motors (Edms) Bpk 1961(1) SA 582 (A) at 584 B.

[17] A defendant’s allegation that a term not mentioned by a plaintiff in his declaration was part of the contract has been regarded as a denial of the plaintiffs version of the contract and not as a special defence.

[18] The general rule is that the party that relies on a contract must allege and prove the terms of the contract, on which it relies. See Emadyl Industries CC t/a Raydon Industries (Pty) Ltd v Formex Engineering 2012(4) SA 29 (ECP) at [8].

[19] Coming back to the facts of the matter, the following are the submissions of Mr Kruger, for the defendant:

1. that there is no evidence of a contract between the plaintiff and the defendant;

2. that none of the witnesses who testified on behalf of the plaintiff testified about the date on which the alleged contract was concluded by the plaintiff and the defendant;

3. that no witness testified about representing the plaintiff when the contract was concluded;

4. that not a single word was spoken in evidence regarding the terms of the contract as alleged in the declaration;

5. that the plaintiff failed to allege that the defendant’s account had to be adjusted and or recalculated;

6. that the plaintiff speaks of a certificate which is merely an invoice which refers to shop 3 while the “certificate" refers to shop 4A also occupied by the defendant;

7. that it is not clear whether the invoice or “certificate” relied on relates to the readings taken by the plaintiff or the meters replaced by the plaintiff or the photograph submitted in evidence and testified about by plaintiffs witnesses.

[20] It is important to mention that the plaintiff called Mr. Martin Langeveld (Martin); Ms Soma Engelbrecht (Soma); Mr. Peter Karani (Karani) and Mr. Werner Steinrich Langeveld to testify on its behalf.

[21] At the end of the plaintiffs case the defendant applied for absolution from the instance. Miller AJA in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (AD) at 409 G-H said:

"... (w)hen absolution from the instance is sought at the dose of the plaintiffs case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court; applying its mind reasonably to such evidence, could or might (not should nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173. Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958(4) SA 307 (T))"

In Gordon Lloyd Page & Associates v Rivera and Another 2001(1) SA 88 (SCA) at 92E - 93A Harms JA said:

"This implies that a plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim - to survive absolution because without such evidence no court would find for the plaintiff. (Marine & Trade Insurance Co. Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G - 38A; Schmidt Bewysreg 4th ed at 91-2). As far as inferences from the evidence are

concerned\ the inference reiied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is \evidence upon which a reasonable man might find for the plaintiff (Gascoyne (loc cit) ) - a test which had its origin in July trials when the ‘reasonalbe man’ was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ‘reasonable’ person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice. ’’

[22] Mr. Kruger’s submissions were that the plaintiff had not alleged and proved the terms (express or tacit) of the agreement on which it sought to rely; no witness testified on the conclusion of the alleged contract with the defendant; that there was no evidence revealing those that represented the parties when such agreement was concluded; and that the terms of the contract had not been testified about and that the claim stood to be absolved.

[23] Mr Kruger submitted further that the alternative claim of enrichment could not succeed as no evidence in that regard had been presented. The requirements of the enrichment claim, according to him, had not been satisfied. Quantum as well, according to him, had not been proved. Holding the view that the plaintiff had made out a prima facie case which called for an answer, I refused the application.

[24] I turn now to deal with the evidence that was tendered to determine whether there are inferences to be drawn from such evidence which establish the conclusion of the agreement between the plaintiff and the defendant.

[25] Martin testified that he was the operational director of the plaintiff. His testimony is that the plaintiff had supplied electricity to the defendant since 2000. The plaintiff metered the specific supply of electricity and invoiced the defendant at the end of each and every month. This continued until the end of March 2011 when the system was changed to a “fee based system”. According to the system, the plaintiff provided the same service and rendered the invoice to the landlord which paid the plaintiff. The landlord would then claim from the defendant. Martin explained how electricity is metered through a current transformer (CT). The defendant’s premises had three CT’s that metered one phase of a three phase connection. A meter which measured the electricity that the defendant consumed is attached to the current transformers. The defendant was billed for the electricity that he used. Martin testified that he discovered in approximately November 2010 that the white current transformer had been faulty. This was after he noted a sharp drop in the usage of electricity at the defendant’s premises. Karani confirmed this and all the CT’s were replaced. The fault, according to him, resulted in the meter only measuring 2/3’s of the electricity that was consumed. The rectification was effected by dividing the usage by 2 (the actual consumption) and multiplying that by 3 to make provision for the faulty CT which is the white one that had been faulty. They then adjusted the defendant’s account. The defendant refused to pay the adjusted account and the subsequent invoices. Martin further testified that the replaced CT’s at the instance of the defendant’s representatives, were handed over to them. They wanted to establish if, indeed, the CT’s had been faulty. The outcome of their tests was never made known to the plaintiff. Wrong CT’s were returned to the plaintiff. This, in my view, except to show the defendant’s interest in the three replaced CT’s is neither here nor there. Martin significantly testified that since March 2011 and after the replacement of the faulty CT’s, the plaintiff continued to read the meter and supply the invoices for the usage to the defendant’s landlord. The defendant has paid all invoices with no queries. Martin, when cross-examined, testified that the plaintiff had gone through a name change but remains the same entity. The plaintiff is now called PEC Metering Utility (Pty) Ltd. The defendant’s usage was rectified at Martin’s instance.

[26] Soma was the plaintiffs second witness. Her evidence is briefly as follows: she is an account processor in the employment of the plaintiff with 10 years’ service. The defendant’s account fell under her supervision. She, in the main, confirmed Martins’ evidence relating to the drop in usage of electricity by the defendant and the steps that were taken to rectify the problem. She dealt with annexures 27 up until 32 which show the history of the defendant’s balances from 19 October 2007 up until 22 June 2012. A back date debit note, according to the spread sheet, was raised on 27 January 2011 in the amount of R183 920.38. The spread sheet, according to her, clearly evinces that in February 2011 and March 2011 the debit orders raised against the defendant’s account were returned unpaid. That includes invoices raised up until the end of March 2011. The outstanding amount, therefore, became R250 655.42. This, according to her, necessitated the calling up of the guarantee worth R37 000.00. After the calling up of the guarantee the outstanding amount became R213 655.42, the payment of which the plaintiff sued for.

[27] Soma testified that a fax that was transmitted to the plaintiff dated 23 February 2000 shows that the plaintiff was mandated to do the work on behalf of the landlord. The fax reads:

“Hiermee bevestig ons u aanste/Ung met onmiddeiike effek om die maandeiikse eiektrisiteitsverbruik in bogenoemde sentrum direk te verhaai vanaf die huurders."

The centre is Reyno Ridge Centre. Soma, once it was established that the CT’s on the defendant’s shop’s meter was faulty, addressed a letter to the defendant dated 28 January 2011. She explained that the average electricity for the period January to May 2010 and for the period June to December 2010 revealed that there was definitely a problem with their meter. They then backdated the account with R183 920.38. They also explained how the amount was arrived at. There’s no evidence to controvert this.

[28] Marais Basson Ingeiyf addressed a letter to the plaintiff dated 7 February 2011. The plaintiff’s letter of 28 January 2011 as well as the letter from Marais Basson Inc dated 7 February 2011 reveal the defendant’s account number which is 2702. The letter was a response to the plaintiff’s letter. The letter says:

“Dit is ons instruksie dat ons klient hierdie agterstaliige bedrag betwis en nie gaan terugbetaal aan u nie. ”

Significantly, the letter does not disclose the reason why the defendant should not pay. For instance, the letter fails to tell the plaintiff that there is no agreement between the plaintiff and the defendant. The letter conveys the fact that the defendant disputes the account. This justifies an inference that the defendant knew of their relationship which was based on a contact. To confirm this, the last paragraph of the defendant’s attorney’s letter reads:

“Dit is verder ons instruksie dat ons kiient vandag die debietorder met betrekking to die eiektriese rekeninge gaan kanseieer en dat u die maandeiikse iopende rekeninge aan ons kantoorkan e-pos offaks sodat dit betaai word."

It is not denied that 2702 is the defendant’s account number. The letter merely confirms the existence of the debit order which the attorneys said would be cancelled on that day. The question which immediately springs to mind is as to why the defendant would cancel the debit order if there was no relationship between them and based on a contract. This, in my view, cements the inference that there, indeed, existed an agreement between the plaintiff and the defendant.

[29] It is noteworthy that Soma testified about the spread sheet which clearly shows the defendant’s account number on page 26 of the trial bundle. The history of the defendant’s manner of paying is evident from page 27 to page 32 of the trial bundle. No evidence was tendered to show that this does not relate to the defendant. The evidence was never controverted.

[30] It is highly improbable that the defendant would conclude an agreement with Emerald Sky Properties 126 (Pty) Ltd and still pay the plaintiff for the same consumption. It has not been denied that the defendant paid the plaintiff for the electricity that he consumed. It is indeed improbable that the defendant could pay twice for the same consumption.

[31] If there was no agreement between the plaintiff and the defendant the plaintiff would not be able to call up the guarantee which reduced the money owed to R213 655.42 arrived at by subtracting R37 000.00 which is the value of the guarantee from R250 655.42 being the last amount owed. The fact that an agreement existed between the plaintiff and the defendant is irresistible. The defendant pleaded that he entered into an agreement with Emerald Sky yet he, at the same time, according to evidence, paid the plaintiff.

[32] It has also not been denied that the defendant paid the plaintiff until the backdate debit note was raised on 27 January 2011. It has also not been denied that the spread sheet relates to the defendant. Another question which immediately springs to mind is as to why the defendant would dispute an

amount which had nothing to do with him in the absence of a valid agreement between the plaintiff and the defendant.

[33] The defendant’s expert was given the CT’s for purposes of determining if they, indeed, were faulty. Why would the defendant and his attorneys be overly concerned about the state of the CT’s if that was not as a result of the agreement between the defendant and the plaintiff.

[34] The defendant’s attorneys, on 7 February 2011, wrote:

“Dit is verder ons instruksie dat orts kiient vandag die debietorder met betrekking to die eiektriese rekeninge gaan kanselieer en dat u die maandeiikse iopende rekeninge aan ons kantoor kan e-pos of faks sodat dit betaal word. ” (my emphasis).

The questins to be answered are:

1. Which debit order is it that is to be cancelled if not the debit order that Soma testified about?

2. Why send emails to the plaintiff’s attorney if, according to the defendant, no agreement existed between the defendant and the plaintiff?

3. Why would the defendant’s attorneys say: "... en dat u die maandeiikse iopende rekeninge aan ons kantoor kan e-pos of faks sodat dit betaai word." Is this not a clear indication that the parties concluded a contract?

[35] The defendant's and his attorneys’ conduct regarding the issue of the defendant's account relating to the electricity that Soma testified about is intriguing. There is no other inference to draw out of all this other than that the agreement between the defendant and the plaintiff, indeed, existed.

[36] Marais and Basson Inc, the defendant’s attorneys, in their letter to the plaintiff dated 13 Feburary 2012, complain about the switching off of the defendant’s electricity. They wrote:

“Ons pfaas dan verder op rekord dat indien u as gevofg van die dispuut sou voort gaan om ons kiient se kragtoevoer af te skakei ons u aanspreekl/k sai hou viralie skade en/ofkostes."

Why all this if there was no agreement between the plaintiff and the defendant?

[37] Karani, the plaintiffs expert, testified that he inspected the CT’s on 14 March 2011 and found the white phase CT faulty. He testified that the meter would not under read the usage if all three CT’s functioned. The under reading by the meter, according to him, put the defendant at an advantage as the reading would be much less and thereby affecting the generated account.

[38] The three CT’s were replaced by Werner Heinrich Langeveldt, the electrical technician who testified that all the CT’s are simultaneously replaced If one of them is faulty.

[39] It was contended on behalf of the defendant that the plaintiff attempted to change its case by filing a replication wherein it pleaded that:

7/7 terms of an application presented to the plaintiff by the defendant during 2003, the plaintiff continued with its oral agreement with the defendant as pleaded in paragraph 3 of the plaintiffs declaration, duly amplified by the terms of the May 2003 application and continued to supply electricity to the defendant alternatively supplied electricity to the defendant since."

[40] If regard is had to the defendant’s defence, then one asks why the defendant would apply for the supply of services namely water and electricity as evidenced by the application which forms pages 69 and 70 of the pleadings bundle. It has not been denied that the defendant made the application. Paragraph 8 on page 70 states:

7 accept liability for consumption on the premises until the date on which PEC Metering receives a written notice of cancellation of services from me which notice must be received 14 days before the cancellation of services. ”

The application is dated 20 May 2003. There is no evidence to disclose that electricity was never supplied to the defendant by the plaintiff. If anything, the application reveals that the defendant made such an application. Again one asks why the defendant would make such an application if an agreement existed between the defendant and Emerald Sky Properties 126 (Pty) Ltd.

[41] In the light of this application coupled with the other evidence I referred to above, the inference, that the plaintiff and the defendant concluded an oral agreement for the supply of electricity to the defendant by the plaintiff becomes irresistible.

[42] Regarding the issue of Shop 3 and Shop 4A, Soma testified that the Landlord asked that Shop 3 change to Shop 4A. This evidence has not been controverted.

[43] It is important to bear in mind that the plaintiff testified about the invoices that were generated after current was used. These are, inter alia, annexure ‘A’ to the declaration; annexures on pages 33, 34, 35, 36, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50. 51, 52, 53, 54, 55, 56, 57, 58, 59 and 60 of the trial bundle. There is also the history of how the defendant’s account was run. This is evident from page 26 to page 32 of the trial bundle. The spread sheet, as it was submitted by Mr. Greyling, runs from page 26 to 32. The debtor reference or the account number is given as 2702. This has not been controverted.

[44] Assuming that the defendant had nothing to do with the plaintiff, where would the plaintiff have obtained this information from? ; why did the plaintiff have to have the information? The plaintiffs evidence is that the defendant was billed for the electricity that he consumed at his premises and that he paid without complaining. One sees this from the spread sheet. The problem, according to the plaintiff, started when the back date debit was raised on 27 January 2011 in the amount of R183 920.38. The evidence was not denied. The defendant finally chose to close his case without giving evidence.

[45] Paginated page 40 of the trial bundle shows the period of time within which the CT’s were not functioning properly. This evidence too has not been denied.

[46] The evidence that the plaintiff presented called for an answer which was not given.

[47] The evidence, applying the principles referred to in the cases above, in my

view, clearly shows that:

1. The plaintiff and the defendant concluded an oral agreement in terms of which the plaintiff was to supply electricity to the defendant.

2. The plaintiff supplied such electricity to the defendant who consumed it and got billed therefor.

3. The defendant paid for the electricity.

4. The spread sheet reflects how the plaintiff and the defendant did their business.

5. The plaintiff metered the consumption of the electricity and invoiced the defendant monthly.

6. The meter measured only 2/3 of the electrical consumption when the one CT was defective.

7. The consumption had to be recalculated as shown above. There is no evidence to reveal that the recalculation was incorrect. Soma gave a detailed explanation of how the account was worked out There is no evidence to gainsay this.

8. Only one inference can be and has to be drawn regarding the conclusion of the oral agreement. This inference is that the plaintiff and the defendant, indeed, concluded the agreement. They both performed in accordance therewith.

9. The defendant stopped paying when he was called upon to pay the difference that had been occasioned by the defective CT. The defendant’s attorney’s letter confirms this.

10. The agreement between the defendant and Emerald Sky, as correctly shown by Mr. Greyling, has nothing to do with the plaintiff, in any case, the defendant decided to close his case without testifying even through evidence called for an answer.

11. The plaintiff has successfully proved that judgment, indeed, ought to be granted in its favour against the defendant as prayed for.

12. The defendant presented no evidence.

13. The defendant in paragraph 4 of his affidavit resisting summary judgment, stated:

“The plaintiff took over the management of the electricity accounts in the Centre where my shop is situated in June 2003. ”

[48] Dealing with the issue of unjust enrichment, in light of what I say above, has become unnecessary.

[49] In the result I make the following order:

1. Judgment in favour of the plaintiff is granted against the defendant for payment of the amount of R213 655.42.

2. Interest on the abovementioned amount at the rate of 15.5% per annum from 22 August 2013 which Is the date of the summons to date of final payment.

3. Costs of suit.

M.W. MSIMEKI JUDGE Of THE HIGH COURT

Appearances:

Counsel for the plaintiffs: Adv.

Instructed by:

Counsel for the first defendant Adv.

Instructed by:

Counsel for the second defendant: Adv.

Instructed by:

Date Heard: 25 February 2015

Date of Judgment: 3 SEPTEMBER 2015

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