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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHTUATSWANA PROVINCIAL DIVISION)

CA 9/05

In the matter between:

HANNES ROOS APPELLANT

AND

E C J DU PREEZ RESPONDENT

CIVIL APPEAL

GURA J AND TLHAPI AJ

DATE OF HEARING : 9 SEPTEMBER 2005

DATE OF JUDGMENT : 6 OCTOBER 2005

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JUDGMENT

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TLHAPI AJ:

INTRODUCTION

[1] The Appellant appeals against the whole of the judgement of the Magistrate of Vryburg, delivered on the 24 November 2004 in terms of which the action was instituted by the Appellant against the Respondent for the payment of one thousand six hundred and forty four Rand ninety nine cents (R1644.09). The Magistrate dismissed the claim with costs.

There was no appearance for the Respondent at the hearing.

THE FACTS

[2] For the purpose of convenience I shall refer to the parties as they were at the Magistrate’s Court.

For the Plaintiff:

2.1 On the 11 March 1998 a certain Mr Black (Black), who was unknown to the Plaintiff, came to borrow money. The Plaintiff referred him to his attorneys Dr van der Westhuizen who advised him not to lend any money to Black. Later, Black returned with a cheque which belonged to the Defendant. The said cheque was signed and post dated but did not bear the name of the payee. He called the Defendant and told her to write his details on the cheque before any money was advanced. This, according to him constituted an agreement between himself and the Defendant. Black returned with the cheque which was endorsed “not transferable” and was made out in favour of the Plaintiff, in the sum of R1644.09. The cheque also bore details of the Defendant.

2.2 Before the cheque was deposited, the Plaintiff called the Defendant to alert her that he would be presenting it to the bank for payment. She (Defendant) did not inform him at the time that she had stopped payment. When the cheque was dishonoured he called the Defendant who promised to pay the money off in instalments and she also informed him that she did not want to be involved in fraudulent activity. The fraudulent activity concerned Black as shall be seen below. The Plaintiff laid a criminal charge against the Defendant which was not pursued but followed up with a civil claim.

2.3 The Plaintiff only learnt of the Defendant’s denial of indebtedness when she opposed summary judgement. She stated therein that the arrangement was that Black would pay the amount three days after the end of the month. The Plaintiff denied any knowledge of this arrangement.

2.4 The Plaintiff’s witness, Franz Jacobus Schoeman, was employed at First National Bank as Manager Client Services. He testified that on the 31 March 1998 when the cheque was presented for payment there were insufficient funds in the account of the Defendant.

For the Defendant:

2.5 The Defendant testified that during March 1998 a certain Mr Black, who was known to her, came to borrow a sum of about one thousand six hundred rand (R1600.00) from her. She at first told him that she could not advance the money then, but enquired what the money was needed for. He explained that he had found new employment and that he wished to purchase a motor vehicle. He was listed at the credit bureaux in respect of an Edgars Account. She offered to intervene on his behalf because she knew the people there. He told her that there was a problem at the said store and that the manager was not available.

2.6 She gave Black a post dated cheque without stating the payee’s name, so that he could first obtain an Edgars stamp. She did not trust Black because he was cagey about her calling Edgars and speaking to the manager. Thereafter she received a call from Roos, the Plaintiff, who was then unknown to her. He wanted to know if Black was known to her and when she admitted to knowing him, he instructed her to put his details down as payee. Black returned with the cheque and she obliged.

2.7 She denied that there was a loan agreement between the Plaintiff and herself. According to her the agreement was to the effect that Black would repay the money owed direct to the Plaintiff, three days after the end of the month, after which the cheque would be returned to her. She however admitted that she was told by the Plaintiff that he had nothing to do with Black and that this was a transaction between them.

2.8 She stopped payment after learning that Black had been arrested in an illegal diamond dealing case. She was encouraged by her informant, a security guard at her bank, to stop the cheque lest it be used for such illegal purpose. She denied that the cheque was stopped due to insufficient funds.

[3] In his reasons for judgment the Magistrate stated the following:

3.1 That the parties both dealt with a Mr Black whom both failed to call as a witness.

3.2 She concedes that the issue commenced with the Defendant whose evidence was unclear as to the nature of the transaction and that later it shifted to the Plaintiff. The Magistrate calls this transaction a “thing” and was unsure if it could translate into an agreement.

3.3 That in respect of the Plaintiff it was not clear why he alleged that the Defendant owed him.

3.4 That both parties were not honest enough and that “their versions were equally unsatisfactory, unconvincing and more confusing”.

SUBMISSIONS:

[4] It was contended on behalf of the Appellant that:

4.1 The Magistrate erred in his judgement by not making any finding on credibility in respect of any of the witnesses, yet concluding that the evidence of both the Appellant and Respondent was “unsatisfactory and unconvincing” and that they had not been “open and honest with the Court”.

4.2 The Magistrate failed to indicate how he arrived at such conclusion which was in any event unfounded.

4.3 That the evidence of the Respondent be rejected by this Court for the following reasons:

4.3.1 The Respondent was evasive in her responses to several questions;

4.3.2 She denied certain facts then later admitted them;

4.3.3 Her evidence in respect of which she informed the Appellant that Black would repay the money three days after end of the month is in conflict with her version when she opposed summary judgement;

4.3.4 The Appellants evidence was on the other hand not conflicting, or confusing nor improbable. His version is confirmed by the Respondent and by the probabilities which can be deduced from the evidence as a whole.

4.3.5 That if it was necessary to make a finding on credibility, the evidence of the Respondent be rejected where it is found to be in conflict with that of the Appellant;

[5] In support of these contentions the Appellant’s counsel relies on the following evidence:

5.1 It is clear from the evidence that the Appellant intended to lend the sum of money as stipulated on the cheque to the Respondent. On the other hand the Respondent borrowed such sum and intended to repay it on the date as stipulated on the said cheque.

5.2 It was the Respondent’s intention from the beginning to lend the said money to Black. She issued the cheque except for stating the payee, with instructions to Black to request Edgars to affix its stamp on the payee line.

5.3 If Edgars had accepted the cheque, the Appellant would not have become involved. It was always the intention of the Respondent to lend the money to Black. There was nothing in the evidence of the Respondent which indicates why the status quo should have changed on arrival of the Appellant on the scene.

5.4 Respondent admitted that the money was handed over to Black at her instance; that she made out a cheque endorsed “not transferable” in favour of the Appellant; that she was told by Appellant that the transaction had nothing to do with Black;

5.5 Respondent admits that she would have paid the Appellant on due date but was prevented from doing so on being informed of Black’s illegal diamond deal, which she did not want to be involved with.

5.6 On the other hand, Black was unknown to the Appellant. He referred Black to his attorney who advised him against lending any money.

5.7 The Appellant entered into an agreement with the Respondent and as a result received a cheque made out in his favour.

APPLICATION OF THE LAW TO THE FACTS:

[6] It is assumed that the findings of a trial court are correct because it is in a better position than a court of appeal to assess issues of fact, credibility, probability or improbability and to draw inferences from admissions or facts proved. An appeal court is therefore loath to interfere with the findings of a trial court unless it has erred, in which event the appeal court is free to substitute in part or in the whole the findings of the trial court (Rex v Dlumayo and Another 1948 (2) 677 at 705 – 706; Santam Bpk v Biddulph 2004 (5) SA 586). That is why a trial court in giving reasons for its findings is obliged to explicitly explain how it arrived at its conclusions.

On whether there existed proof on a preponderance of probability, Harcourt J said in Twigger v Starweave (Pty) Ltd 1969 (4) 369 (NPD) at 373 D-E:

“……where the court a quo has misdirected itself as to the incidence of the onus of proof, the Court of appeal is at large to embark upon a re-hearing of the case and on the evidence (and credibility findings, if any, and views, of probability based upon observation of the parties and witnesses, if any) unaffected by the misdirection in regard to onus, to decide whether there is a substantial preponderance of probabilities in favour of either party; only if it is not satisfied in this regard must the Court conclude that it is in a state of inability to decide and give effect to the correct view of the law relating to the incidence of onus of proof to decide whether the judgement appealed from is wrong”.

[7] In my view, the court a quo erred by overemphasizing the role played by Black in so far as concluding the agreement was concerned, to such a degree that untenable findings on credibility of the parties was made.

[8] An analysis of the evidence establishes the following:

8.1 That there was an agreement between the Appellant and Respondent for the loan in the sum R1644.09;

8.2 Respondent effected payment of the loan by way of a post dated cheque endorsed “not transferable” and made out in favour of Appellant;

8.3 Appellant confirmed with Respondent (a fact which she admitted) that the agreement was between them and had nothing to do with Black;

8.4 The Appellant notified the Respondent that he was presenting the cheque for payment and she conceded. He did not consult with Mr Black in this regard because it was unnecessary, he did not have an agreement with him.

[9] The evidence of the Respondent should therefore be rejected in as far as it seeks to establish that it was Black who was responsible for payment of the loan to the Appellant. The facts show that it was always the intention of the Respondent to advance money to Black and that she was willing at first to do so on his behalf at Edgars and when this failed she entered into an agreement with the Appellant for his benefit.

[10] It is for these reasons that I differ from the Magistrate’s conclusion and am of the view that there should have been a judgment for the Appellant with costs.

[11] The appeal therefore succeeds with costs and the Magistrate’s order is altered accordingly to read:

“Judgment for the Plaintiff in the amount of R1 644.09 with costs”.

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V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

I agree.

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SAMKELO GURA

JUDGE OF THE HIGH COURT

Attorneys for the Appellant : Smit & Stanton Inc

Attorneys for the Respondent : Herman Scholtz Attorney

Counsel for the Appellant : Adv J Pistor

Counsel for the Respondent : No Appearance

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