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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 38195/2008

Date: 11/10/2017

In the matter between:

GB MARE                                                                                                                 Plaintiff

and

WERNER HERMAN GUSTAV LEWIES NO                                                       Defendant

JUDGMENT

BRAND AJ

[1] The Plaintiff claims on contract the amount of R980 000.00 (Nine  hundred and eighty thousand Rand) from the Defendant.

[2] The Plaintiff, who previously was represented by attorneys who withdrew in 2016, represented himself at trial.

[3] Given this, the Plaintiff presented his case by giving sworn testimony as a witness on his own behalf.

[4] At the close of the Plaintiffs case, after he had concluded his evidence in chief, been subjected to cross examination and had concluded re-examination, the Defendant applied for absolution from the instance.

[5] This is my judgment in that application.

[6] The test for deciding an application for absolution from the instance is trite: whether there is enough evidence on which a reasonable court might, not will or should, find in favour of the Plaintiff.[1] In short, to avoid absolution from the instance, a plaintiff must adduce enough evidence to establish at least a prima facie case.

[7] The Plaintiffs version, as presented in his evidence in chief:

[7.1] The Plaintiff and Defendant were friends. The Defendant, at the time a practicing attorney also from time to time acted as the Plaintiffs attorney.

[7.2] During the course of 2004, the Plaintiff experienced problems with water seepage from mine dumps adjacent to his farm onto a portion (on the Plaintiffs version between 10% and 15%) of the pasture on his farm.

[7.3] The Defendant advised him to try to claim compensation from the mine for damage caused to the land, or rehabilitation of the soil.

[7.4] The Plaintiff then instructed the Defendant to investigate the possibilities in this regard on his behalf, paying him the sum of R60 000.00 in advance in anticipation of services to be rendered.

[7.5] Acting on these instructions, the Defendant proceeded to consult with soil experts at North-West University and with counsel in Pretoria on the possibilities.

[7.6] After the mine had become aware of the Plaintiffs plans, it made an offer   to buy the land in question from him for the sum of R5 000 000.00 in order to avoid the cost of damages or rehabilitation.

[7.7] The Plaintiff accepted the offer and concluded the transaction,  accompanied by his father.

[7.8] The sum of R5 000 000.00 was paid to the Plaintiff in the form of an initial, upfront  ex  gratia  payment   of   R1 000 000.00,  with   the  balance   of R4 000 000.00 paid a number of months later.

[7.9] During this time, the Plaintiff became aware that the Defendant  had financial and other personal difficulties. He recalled one morning in particular when the Defendant arrived at his home by car, still wearing his pajamas and told him·that things were going very badly for him, before driving off.

[7.10] When the Plaintiff called the Defendant to ask him what the matter was, the Defendant told him that he owed a  firm  of  building  contractors  R980 000.00, for which they were demanding immediate payment  and  that he could not pay.

[7.11]  To  assist  his  friend,  the  Plaintiff,  having   just   recently   come  into R1 000 000.00, offered him a loan of R980 000.00. The Defendant accepted, saying that he would sell a property he owned in Klerksdorp to repay the loan.

[7.12] Shortly after this the Plaintiffs then wife visited the offices of  the Defendant, whereupon she was presented with an invoice for services rendered to the tune of R1 000 000.00.

[7.13] The Plaintiff professes no knowledge of the progeny of this invoice and regarded it at the time and still does as a transparent and fraudulent attempt by the Defendant to escape repayment of his loan by pretending that he received the sum as payment for servies rendered.

[8] Under cross examination by Mr Zietsman who appeared for the Defendant a plethora of inconsistencies and what can at best be called grey areas emerged in the Plaintiffs  version.

[9] The most important of these relate to a discovered document, being a letter from a firm of attorneys acting for the Plaintfif, to the South African Revenue Service (SARS) (item 6 on page 7 of the Bundle of Discovered Documents). In this letter the attorneys confirm to SARS that their client (the Plaintiff) cannot claim back Value Added Tax on the invoice for R1 000 000.00 given to the Plaintiff by the Defendant.

[10] On being probed on this letter by Mr Zietsman, the Plaintiff readily admitted that  he had instructed his bookkeeper to submit a claim for VAT  on the invoice of  R1 000 000.00 and that such a claim had been submitted, but rejected by SARS.

[11] Mr Zietsman submitted during argument in support of the application for absolution from the instance, the letter and the Plaintiffs admission in response to it cut the legs from the Plaintiffs case in two ways.

[12] First, the Plaintiffs admission that he relied on the invoice as valid and as the basis for his payment of R980 000.00 to the Defendant for purposes of the VAT claim directly contradicts the  central  claim  in  his  case,  namely  that  the  R980 000.00 payment was a loan and that the invoice for R1 000 000.00 was a fraudulent attempt to colour that loan in as payment for services rendered.

[13] Second, whichever way one looks at it, the Plaintiffs admission is at best an admission to dishonesty and at worst to fraudulent conduct. In short, the Plaintiff submitted an invoice for a VAT rebate that he, on his version before court, knew was false. When pressed on this by Mr Zietsman, all the Plaintiff could say is that although he intended to act in this dishonest manner, he did not go through with it as he did not receive the rebate. Mr Zietsman further pointed out to the Plaintiff here that, even had he submitted the invoice in the belief that it was valid (which is of course not his case),  he would  still have  been  acting dishonestly, as he would be claiming VAT on an invoice for R1 000 000.00 for which he had in fact paid only R980 000.00.

[14] These admissions, so Mr Zietsman concluded, put paid to the Plaintiff's credibility as witness, so that the veracity of his entire version could be called into question.

[15] The Plaintiffs credibility and reliability as witness is also called into question in other ways. Mr Zietsman referred the Plaintiff under cross examination to an affidavit he had deposed to in support of a complaint he had levelled against the Defendant with the Law Society. In this affidavit the Plaintiff declares under oath that he had paid the Defendant R60 000.00 for services to be rendered in respect of his dispute with the mine; that he had, together with the Defendant consulted an advocate, one Mr Barnard, in Pretoria; but that he is willing to pay only the reasonable and  fair  fee  for  Mr  Barnard  and  expects  the  balance  of  the  R60 000.00 to be returned to him. This directly contradicts the Plaintiff s repeated assertions both in evidence in chief and under cross examination a) that he was in addition to consultation with Mr Barnard, aware at least of a report commissioned from soil experts at North West University, a consultation with another advocate, one Mr Vlok, a consultation with attorneys specialising in mining law in Klerksdorp and meetings on his behalf between the Defendant and the mine and the Defendant and the Department of Minerals and Energy in furtherance of his instructions. It also directly contradicts his equally repeated assertions as witness that he regarded the R60 000.00 as full and final payment for all services rendered by the Defendant in relation to the dispute with the mine and did not think that anythig needed to be repaid to him.

[16] I agree with the conclusions Mr Zietsman sought to draw from these inconsistencies. The Plaintiff in his later conduct relying on the R1 000 000.00 invoice contradicts the very basis of his claim against the Defendant, namely that he had lent the Defendant R980 000.00 that the Defendant had then sought to deny through reliance on a false invoice for services rendered. The Plaintiffs admission to at least a dishonest intent in instructing that the R1 000 000.00 invoice be submitted to SARS and the manifest inconsistencies between his affidavit and his evidence before court erode his credibility to such an extent that every aspect of his evidence must be called into question and cannot be accepted.

[17] The conclusion must be that, not only had the Plaintiff at the close of his case failed to make a prima facie case, he had failed to make any case at all. There is not sufficient evidence on the basis of which a reasonable court might find in favour of the Palintiff - in fact given the extent to which the Plaintiffs credibility as witness has been impugned, and in the absence of any documentary evidence supporting his version of a loan agreement, there is no evidence at all.

[18] As a result, I make the following order:

The Defendant's application for absolution from the instance is granted, with costs.

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JFD Brand

Acting Judge of the High Court

 

Matter heard on:              10 October 2017

Matter delivered on:        11 October 2017

Plaintiff                             G.B. Mare (in person)

Defendants                       adv. C Ziestman

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