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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER:  585/2008

In the matter between:

AFRICA CATERING EQUIPMENT SUPPLIES                                    Plaintiff

AND

FOTIOS PROKOPOS T/A MEGA CAFÉ                                         Defendant

 

CIVIL MATTER

 

KGOELE J

DATE OF HEARING: 23 and 24 October 2017

DATE OF JUDGMENT: 15 FEBRUARY 2018

COUNSEL FOR PLAINTIFF: Adv. H P West

COUNSEL FOR DEFENDANT: Adv. S M Van Vuuren

 

JUDGMENT

 

[1] The plaintiff claims payment of an amount of R256 367-00 together with interest as well as delivery of two items worth R10 300-00 in terms of the amended prayers to the declaration in support of their claim.

[2] The claim emanated from a verbal agreement of the supply and delivery of certain goods which was concluded between the parties.  In terms of this agreement the plaintiff sold and delivered goods details of which are set out in Annexure “A” to “J”.  The initial total amount in Annexure “A” to “J” was R548 428-62.  The plaintiff claims that the defendant only paid R200 000-00 and the outstanding amount before the amendment was sought, was R338 846-00.  The plaintiff only amended its prayers after closing its case.  There was no opposition to the amended prayers sought and it was duly granted by this Court.

[3] It is prudent to set out from the onset why this judgment took more than 3 months to be delivered.  The matter was heard and finalized on the 23 and 24 October 2017.  Due to the fact that only  two days were allocated for the trial of this matter, the parties agreed to submit written arguments by the 7^th and 17^th November 2017 respectively.  I received the plaintiff’s written submissions on the 12^th December 2017 after I requested the Registrar to enquire from both parties about the whereabouts of their submissions when I did not receive same as promised.  The date stamp of the Registrar however indicates that the plaintiff’s submissions were received on the 17^th November 2017.  The written submissions of the defendant were received on the 10 January 2018 after the Registrar reminded them for the second time on the 12 December 2017 to submit same.

[4] The plaintiff called Mr Demetrios Houndalas (Houndalas) to testify and his evidence summarized is as follows:-  He testified that he is the sole proprietor of African Catering Equipment, a catering equipment supplier.  He knew the defendant very well from previous business transactions and further that, they come from the same village in Greece.  Mr Fotios Prokopos (Mr Prokopos Senior/the defendant) approached him looking for second hand equipment to start a business in his shop Mega Café.  He issued a written quotation which has been marked Annexure “FP1”.  This quotation was made after the two visited a Supermarket at Orkney where the defendant was pointing out all the equipment mentioned in the Annexure which he required at the shop.  He indicated that this quotation issued on the 20 October 2006 form the matrix of the agreement between the parties.   He further indicated that Mr Prokopos Senior did not indicate to him that he is acting on behalf of his son George (Mr Prokopos Junior) at the time they concluded the agreement.

[5] He further testified that they spoke regularly about the balance and there was no commitment on Mr Prokopos Senior to effect payment.  The only time that he attempted to make an offer to pay was after the legal proceedings had commenced. According to Houndalas, Prokopos Senior made an offer to pay which amounted to a fraction of the amount owed depicted in the amendment and he refused to accept it.  The offer came through his legal representatives.  Houndalas alleges that Mr Prokopos Senior never indicated to him that he is not personally liable for the amount outstanding.  He furthermore never indicated that he was not trading as Mega Café.  At all the times he made deliveries, he found him at this shop conducting the business of Mega Café.  He further indicated that some items on the list were not delivered as initially agreed because at the time when he went to fetch them from the Supermarket to effect delivery, he found that some were already sold.  He had to make deliveries of the available equipment and they together with Mr Prokopos Senior made changes as and when it was necessary.

[6] In as far as the claim relating to Annexure “A” is concerned, he indicated that all the goods depicted therein were sold and delivered to the defendant.  He insisted that although in the defendant’s plea they claim that he delivered the wrong items, he was not told about this.  He also denied the proposition that he was informed about the wrong items and further that, he told them to choose the items they can use and that he will come later to collect the ones they could not use.

[7] As far as the three industrial boiling plates mentioned in this Annexure are concerned, he reiterated the fact that although defendant says there was no agreement in relation to these equipment, in his own mouth the defendant admitted that he received them but alleges that he requested that they should be collected. Houndalas indicated that he was told some months later after delivery to come and collect same because the defendant claimed that they were no longer cooking meals, and he refused to go and collect them.

[8] As far as the second hand Deli Fridge is concerned, he conceded that he collected it after two or three months of its delivery.  This is one of the items which warranted the amendment of the amount claimed.

[9] As far as the Humidifier Warmer is concerned, which the defendant claims they were no longer using, as they are not getting any good business on it, Houndalas indicated that although he sold it to him for R4800-00, he credited the defendant on the amount owing with an amount of R3000-00 only after taking it back because, he expended some expenses to go and fetch it.  He indicated that he had a choice of not taking it back but felt sorry for him as he was no longer using it.

[10] As far as the item labelled “1 set small” which consists of “cutting knives, pans, tongs etc.” valued at R8000-00 is concerned, he insisted that they were delivered although the defendant says they were not delivered.

[11] As far as the claim as depicted in Annexure B is concerned, he indicated that the signature appearing on this delivery note is that of Mr Prokopos Senior.  He further indicated that the 1 X 8 Chicken Griller was delivered contrary to what they claim that there was no agreement, and Mr Prokopos Senior signed for the delivery thereof.  Few months after the delivery of same they indicated that because they do not make any business from it, he should come and take it back.  He refused.

[12] As far as the Bread Trolleys are concerned, he insists that although the defendant pleads that he did not deliver it, it was delivered as the delivery note signed by Mr Prokopos Senior is proof of that.  The same applies to the Cake Mixer which they claim there was no agreement.  According to him they never even indicated to him that the two should be collected.

[13] As far the claim in respect of Annexure “C” is concerned, Houndalas reiterated the fact that all the items mentioned therein were delivered.  With regard to the 3 x 10 Unit Gondolas, he testified that he delivered all what was ordered.  He further indicated that because of the fact that the defendant only admitted having received only 60 Gondolas, and furthermore, because he was complaining that they were not the ones initially pointed out at the Supermarket, he then credited him with an amount of R20 000-00 in his favor as per Annexure “FP2”. He did that because, he could not get what was initially pointed out at the Supermarket as the owner had already sold them, and furthermore, because he was under pressure to get payment from the defendant. He deemed it fit to discount that amount hoping to get payment, which he never received.

[14] The second item under “Annexure C” is 6 X Gondolas End Units.  He testified that he delivered only 6 and not 10 as indicated by the defendant because of the fact that he could not get the others at the Supermarket where they were seen.  He repeated the fact that for the same reasons as already indicated in paragraph 13 above, the amount he credited the defendant with was included in the R20 000-00 mentioned above.

[15] He did not say anything much under the claim in “Annexure D” is concerned because the defendant admitted his indebtedness in this regard as well.

[16] In as far as “Annexure E” is concerned, he indicated that the defendant disputed only one item, the High Speed Fryer. He indicated that he in fact delivered two Fryers which were not the same. The defendant did not even complain to him that he invoiced them for two deliveries of Fryers when in fact he was supposed to invoice them for only one. He denied that the amount of this other fryer should be credited to them.

[17] In as far as the claim in Annexure “F” is concerned, the defendant pleaded that the plaintiff had already collected the said Three Island Freezers and they are to be credited with an amount of R35 000-00.  Although Houndalas agreed that he indeed collected the said Freezers, he nevertheless testified that he has already credited the defendant with an amount of R35 000.00 as depicted in Annexure “FP2”. In other words, there is no further credit that can be made to the defendant.

[18] Further that, the other item the defendant disputes in this Annexure, the bread slicer, was indeed collected by him because the defendant complained that it was not the one he ordered, but later replaced it.  The third item disputed by the defendant under this Annexure, the two plates stove, he does not remember that he was requested to collect it.  As far as the Printer scale is concerned, the defendant only queries the amount, but Houndalas indicated that he had to order a new one as the one pointed at the Supermarket was not available, and therefore quoted the new price.

[19] The Meat Slicer under this Annexure was not ordered according to the defendant but Houndalas insisted that it was ordered and delivered.  He denied that he was requested on several occasions to collect the said item.  He further added that even if he could have received the request to collect it, he will not have done so because it was agreed to.  In as far as the Provision Bins are concerned, the defendant pleaded that he delivered only two.  Houndalas testified that this issue is debatable as he does not have a delivery note thereof but he thinks he delivered four of them.  As far as the 4 Division Bain Marie’s are concerned, the plaintiff also agrees to the fact that he collected them but went on to say that he credited the defendant with an amount of R3000-00 only on the invoice amount of R8500-00 as per Annexure “FP2”, because he spent a lot of money to collect them, to reconnect, clean and put them into a re-usable state.  This was done because the defendant had already used them as they were collected after three to four months after delivery, and the defendant claimed that he was not selling enough food, he must come and take them.  The cold room was collected as well and he credited the defendant with an amount of R9000-00 as per Annexure “FP2”.  The same applies to the M Freezer Room.  The rest in this Annexure the defendant does not dispute delivery, nor the agreement thereof.

[20] In Annexure “G” the defendant does admit the receipt of goods and amount and he confirmed that that was according to their agreement.

[21] In “Annexure H” Houndalas admits that he loaned all the items mentioned here and does not claim the amount hence the amended prayers sought. He only seek delivery of the said items, and if they are not available to be delivered, the defendant can tender a payment of R11 742-00 including vat.

[22] He testified that the defendant claims in as far as “Annexure I” is concerned, that the items were incorrectly supplied although admitting delivery. They further say that he collected the bread slicer only.  He denied that anybody requested him to collect the bread slicer and insisted that all the goods in this “Annexure” were correctly supplied and invoiced.

[23] He further indicated that there was no dispute as far as “Annexure J” is concerned as the defendant admits the amount and receipt of the goods referred to therein.

[24] He concluded by saying that, he spoke regularly with the defendant, Mr Prokopos Senior, about the balance owing but there was no commitment to pay.  He only made attempts after the legal proceedings started.  He reiterated the fact that the defendant did not say to him that he is not personally liable, including the fact not that he was not trading as Mega Café.  The defendant was at all the time conducting business of Mega Café. The changes to the deliveries were made as and when requested. Sometimes it was his son who were making these changes and requests. He knows his son very well.

[25] The plaintiff closed its case. The defendant Mr Fotios Prokopos Senior testified that he has been a businessman for 20 years.  He cannot read or write.  He uses his wife and a lawyer and somebody in the house to help him do business.  Mega Café has been there for a long time and he became involved in it when his son George (Prokopos Junior) was taking it over.  He knows the plaintiff as they come from the same village in Greece.

[26] He confirmed that he requested the plaintiff to deliver certain kitchen equipment after pointing them out at a certain Supermarket that was closed.  The equipment were required for his son as he was taking over Mega Café and he did tell the plaintiff about this. The plaintiff brought the wrong items when he was supposed to deliver the equipment requested through his men who were working for him. They were equipment that he did not point out at the Supermarket. Because he became crossed about this defective delivery, he then instructed his son to take over the business dealings as he was just helping him at that time.  After the first delivery he was no longer involved with the business and his son, Mr Prokopos Junior took over the business transactions. He denied any knowledge of all the Annexures (Annexure “A-J”).  He admitted that the signature which appears on Annexure “B” is his, but gave a reason that he signed the delivery note because his son was not there at the shop.  He lastly indicated that he did pay an amount of R200 000-00 to the plaintiff with a cheque from his own company but claimed that it was the amount he lent to his son Prokopos Junior, to start his business.

[27] His son George (Mr Prokopos Junior) testified and informed this Court that he has been in business for +- 15 years. Further that his father does not understand English well, he serves most of the time as an interpreter for him.  He came to South Africa in 2007 from Greece to take over the business of Mega Café. His father introduced the plaintiff to him and told him that he is the person that will deliver the equipment he required. His father gave him a list of the equipment ordered.

[28] When the plaintiff delivered the equipment he was present.  His father did not agree with what was delivered.  His father became irritated and indicated to him that he did not want to become involved with the business transactions anymore because he could see that the plaintiff was not honest.  The equipment that were delivered were rotten, nothing was working.  It was in fact according to him, garbage.  The plaintiff promised to bring the correct ones and said they should accept and use those that were working.  He told him that he will not sign for what he had brought.  Instead, the plaintiff continued bringing equipment through his delivery men and he (Prokopos Junior) continuously told him that he is not a store-room.  This did not help either because plaintiff continued bringing the equipment which he did not order or require at the shop.

[29] He further indicated that he only sells chips, hot dogs, including Russians. He maintained that the only equipment that were requested were on Annexure “FP1”, but the ones which are contained in Annexure A-J were not ordered by them, that is why they were not signed for. He denied having ordered the equipment mentioned in Annexure “B” which his father signed for. He indicated that he does not know why his father signed for their delivery.

[30] In cross-examination he indicated that he dispute the sale and delivery of the same items in Annexure “D”. He also indicated that he is the one that gave their attorney of record the information he used in drafting their plea.  Later on when it was brought to his attention that his father did agree in his plea that the items in Annexure “D” were agreed to and the amount thereof not disputed, he changed and said that he never told his attorney that there was no dispute about these items. He blamed their attorney of record for including these averments in their plea. He also blamed their attorney of record for leaving out the other averments he testified about that were not contained in the plea including having written that they admit certain Annexures as correct. He also indicated that he is the one that offered to pay the correct outstanding amount of R78 000-00 and could not pay it over to the plaintiff because he (Houndalas) ran away. He furthermore attempted to change his earlier version to reflect that he came to South Africa in 2006, but resorted to claiming that he was not sure of the year in which he came to South Africa. This is after he was made aware of the fact that the year 2007 does not tally with the time factor (2006) when the items were ordered and delivered. He lastly indicated that he cannot remember whether he was present or not when asked about his presence when the items in Annexure B, C, E, and F were delivered.

[31] In evaluating the evidence before Court, it is clear that the defendant raised two defenses in the alternative to the claim sought by the plaintiff.  The defendant basically denies ever having concluded the contract on his behalf and also having traded as Mega Café, alternatively, he denies that the plaintiff did perform in terms of the agreement in that the goods delivered were not the goods ordered, alternatively, the goods delivered were not ordered at all.

[32] During the evidence in Court these defenses raised in the plea were continuously developed/extended further to suit the question which was asked at a particular time during cross-examination. Whilst the plaintiff’s evidence remained steadfast and consistent, the same cannot be said in as far as the evidence of the defendant is concerned. The plaintiff was also not shaken during cross-examination and never contradicted himself. On the other hand the evidence of the defendant is riddled with a lot of contradictions. Mr Prokopos Senior portrayed himself as a person that did not have any knowledge in as far as a number of the transactions contained in Annexure “A-J”. On the same breath, Mr Prokopos Junior, although he claimed to have been the one that was transacting with the plaintiff as far as Annexure “A-J” were concerned, was no better than his father as he was evasive in answering questions, could not answer many questions related to these Annexures and ended up not remembering most of these transactions and blaming his memory due to the lapse of time. His fading memory flies against the fact that Annexures “A-J” attached to the papers are the delivery notes that were attached by the plaintiff in his particulars of claim. As to why he did not familiarize himself with the said documents before he came to Court remains a mistry. Mr Prokopos Junior in fact added more woes to the contradictions that were apparent in the evidence of Mr Prokopos Senior.  During cross-examination he contradicted what he said in examination in chief. To make matters worse, he contradicted what was contained in the plea of the defendant.

[33] To demonstrate how the contradictions in the defendant’s case cut across the root of their defenses raised, the following can be cited:-

33.1 Mr Prokopos Junior indicated that he came to South Africa in 2007 to take over the business from his father. His father claims that he is the one who negotiated the first transaction of the goods in Annexure “FP1” which basically forms the agreement. Annexure “FP1” is dated October 2006.  There are some of the delivery notes that were made in November and December 2006. The said delivery notes include Annexure “B” which his father admitted that he signed on behalf of his son when he was not at the shop. On being made aware of this contradiction, he then resorted to blaming his memory in failing him;

33.2 There is another contradiction that relates to this “Annexure B” which was signed by his father Mr Prokopos Senior.  Mr Prokopos Junior testified that in fact he did not order the items depicted thereon at all, whereas Mr Prokopos Senior told this Court that he signed it as he was told his son ordered the said items.  It begs to question why Mr Prokopos Senior signed this delivery note when from his own mouth he indicated that, he did not want to do any transaction anymore on behalf of his son when he realized that the plaintiff was not honest by delivering wrong items during the first delivery;

33.3 Mr Prokopos Junior testified that all of the items the plaintiff delivered were rotten, damaged and labelled them as garbage, that is why he did not sign for them. He refused signing the further items delivered later.  He furthermore during his evidence in chief said that the plaintiff delivered the items not ordered. In the plea that was apparently signed by his father, it was indicated that the items were either not ordered, some were ordered but the price was not correct, others were not delivered at all or were collected and not credited for. Nowhere in the plea was there any mention of the rotten or damaged items, nor was there any mention of the fact that they both refused to sign for some of the items delivered;

33.4 Mr Prokopos Senior admitted in his plea that the items in as far as Annexure “D”, “G”, “H” and “J” were correctly delivered, the price was correct and they do not dispute anything as they were ordered.  His son Mr Prokopos Junior vehemently denied during his testimony that the items in these Annexures were correctly delivered;

33.5 As far as the sandwich toaster on Annexure “A” which also appears on Annexure “FP1” is concerned, his father testified that they ordered it whereas his son denied that, claiming that he is not selling sandwiches;

33.6 Mr Prokopos Junior testified further that the only equipment ordered by them are found on Annexure “FP1” and not in the rest of the Annexure (A-J) referred to, that is why they those Annexures were not signed. This evidence also contradicts the plea of the defendant as already indicated above because, whereas there are a number of items which were disputed in these Annexures, there were also some other items which the defendant did not dispute. The defendant in his plea even indicated in some of the Annexures that the other equipment or the rest which were not specifically disputed were correctly delivered.

33.7 In addition to all of the contradictions mentioned above, the last one that puts a final nail to the coffin of the defendant is to the effect that, according to Mr Prokopos Junior, he was the one that was relating the information that was used by their attorney of record to draft the plea, but went on to say that his father was just made to sign the plea statement only.  He could not answer why his father was made to sign the plea which contained information about what was delivered and what was not, when according to him (the father), he did not know anything about the deliveries in Annexure A-J or further transactions after the first defective delivery and or was not involved in the further dealings of the business.

[34] To sum up the above considerations, it is noteworthy to point out that, the evidence of the defendant, Mr Prokopos Senior, to the effect that he did not deal with the plaintiff in regard to the sale and delivery of goods as described in Annexure “A” - “J” of the plaintiff’s declaration to the claim, is in stark contrast with ‘material facts’ relied upon by him as the defendant in his plea.  His plea is replete with admissions by himself as he indicated therein that he had in fact received most, if not all, of the goods.  Of importance is that although certain of the goods received by him were allegedly not ‘ordered’, those goods continue to remain in the defendant’s possession.

[35] In addition, the fallaciousness of his evidence to the effect that he had no knowledge of the sale and delivery of goods as set out in Annexure “A” - “J” of the plaintiff’s declaration, is summarily exposed in the evidence given by the defendant’s son, Mr Prokopos Junior, which as already indicated above, contradicts the defense pleaded by the defendant (Mr Prokopos Senior) in his plea.  For example, the evidence given by Mr Prokopos Senior that the only agreement entered into with the plaintiff was in regard to a written quotation, a copy of which is attached to the defendant’s plea marked Annexure “FP1”, and that there was no agreement for the purpose of any of the goods described in annexure “A-J” of the plaintiff’s declaration, is a material contradiction because almost all of the goods described in the foresaid written quotation, Annexure “FP1”, are in fact repeated in the Annexures marked “A” to “J” to the plaintiff’s declaration.

[36] In my view, the contradictions enumerated above are material. There is a further insurmountable mountain facing the defendant in addition to the contradictions enumerated above.  The defendant is blowing hot and cold at the same time in their defense.  In their evidence Mr Prokopos Senior testified that he told the plaintiff that he was acting on behalf of his son in concluding the agreement and that is why he is not liable to pay anything.  He maintained that plaintiff sued a wrong person.  A perusal of his affidavit opposing the Summary Judgment application that was sought by the plaintiff indicates that this fact that plaintiff knew that he was acting on behalf of his son was never pleaded as he claims.  On the contrary, in paragraph 6 of this affidavit he says:-

“I agreed to purchase this equipment specified in the quotation annexed hereto as Annexure “X1” for an agreed amount of R312 000-00”

AND

“I paid the applicant the amount of R200 000-00 in advance” [My Emphasis added]

There is nothing in these paragraphs that indicates that he was acting on behalf of his son or that he told the plaintiff that he was purchasing the equipment on behalf of his son.  One can clearly see that this defense was developed or extended during trial and does not correspond with the plea in both the Summary Judgment affidavit and worse, the plea filed by the defendant in this action.

[37] What is more telling is what is contained in paragraph 10 and 11 of the same affidavit in the Summary Judgment application which paragraphs were couched as follows:-

“When the applicants first delivered equipment to the premises, it was clear that the applicant did not deliver the correct equipment.  My son and I whom at that stage started to operate the business Novea Trading CC t/a Mega Café on the premises.  I informed the applicant that he delivered incorrect equipment.  The applicant’s answer was that we must see which of these other equipment we can use and that the remaining equipment must be returned to him” [My Emphasis added]

AND

“My son thereafter took over the negotiations in the name of Novea Trading CC and I was no longer involved in any further agreements.  I annex a confirmatory affidavit of my son hereto as annexure “X3”. [My Emphasis added]

What comes out clear of paragraph 10 is that they were both operating the business.  Paragraph 11 does not also indicate that the son took over the business, but that he thereafter took over “the negotiations”.  But of importance is the fact that the defendant loses sight of the fact that he is being sued for equipment mentioned in the quotation that he agreed to, which he claims is the only agreement he concluded.  This is the agreement whereupon the whole of the plaintiff’s claim is premised on.  As indicated earlier, the items in the delivery notes (Annexure A-J) that forms the matrix of the plaintiff’s claims contains the same items which are found in the quotation (Annexure FP1) agreed upon.

[38] In paragraph 17 of the same affidavit he says the following amongst other things:-

“I have indicated that I received and could make use of only a few of those items” [My Emphasis added]

Here again the paragraph gives us an impression that he admits having received some of the items and also using only a few of those items.  He does not refer to his son.  Unfortunately these flies against the defense that the items delivered were wrong, they were also garbage and further that the son refused to sign for them.  In addition, if Mr Prokopos Senior was no longer conducting this business as he claims, why would he be using a few of these of these items?

[39] Unfortunately all of the above does not assist this Court to be able to discern what the actual defense of the defendant is.  It is therefore not correct that “Mr Prokopos fully set out the position of him acting on behalf of his son” in the Summary Judgment application as argued by his Counsel.   Their evidence is once more not only in stark contrast with the material facts relied upon in their plea, but also in their affidavit resisting Summary Judgment.  The submission that the defenses raised by the defendant were clear at all the times is without devoid of substance.  The same applies to the submission which was to the effect that the plaintiff only attempted to deny this issue because he appreciated the fact that summons had been issued against the wrong entity and he is now forced to continue as the claim against the correct party (Mr Prokopos Junior) had prescribed.

[40] There is a further consideration to make on this issue. The defendant has been cited as a natural person. In addition to the analysis made above, he does not contend that he was merely an agent acting on behalf of a principal. The plaintiff’s cause of action is premised upon the sale and delivery of goods to him. In his plea he does not deny that goods were sold and delivered to him. It is accordingly immaterial whether the defendant traded as Mega Café or not.

[41] The defendant’s Counsel further submitted that should the Court find that this defense was not properly raised in the plea, an Appeal Tribunal held that a Court is entitled to go beyond the pleadings where the issue had ben traversed in evidence. The said tribunal according to him relied on the case of Shill v Milner 1937 AD 101 at 105 where De Villiers JA said:-

“The importance of pleadings should not be unduly magnified.  The strict object of pleadings is to define the issues, and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry.  But within those limits the Court has a wide discretion.  For pleadings are made for the Court, not the Court for the pleadings.  Where a party has had every facility to place all the facts before the Trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is not justification for interference by an appellate tribunal merely because the pleadings of the opponent has not been as explicit at it might have been.  Robinson v Randfontein Estates GM Co Ltd 1025 AD 173”.

[42] Unfortunately in our case, the same cannot be told that the defendant has had every facility to place all the facts before this Court and the investigation into all the circumstances has been as thorough and patent.  The case of the defendant is hopelessly weak.  It is furthermore highly improbable that the plaintiff knew that Mr Prokopos Senior was acting on behalf of his son from the facts of this case.  In my view, the plaintiff has on a balance of probabilities managed to discharge the onus rested on it, and its claims as depicted in the amended prayers supported by Annexure “FP2” ought to succeed.

[43] In a civil trial the onus of proof is discharged on a balance of probabilities.  What a Court does is draw inferences from proven facts.  The inference drawn is the most probable, though not necessarily the only inference to be drawn.  See: Cooper and Another v Merchant Trade Finances 2000 (3) SA 1009 (SCA) at page 1027F to 1028D.

[44] Judgment is therefore granted against the defendant for:-

44.1 Payment of the sum of R256 367-00;

44.2 Mora interest at the rate of 15,5% per annum from 1^st October 2007 until date of payment;

44.3 The defendant is to deliver the items described in Annexure “H” of the declaration to the plaintiff’s summons alternatively, to effect payment of an amount of R10 000-00 to the plaintiff within 30 days of the Order of this Court coming to his notice;

44.4 The defendant is ordered to pay the costs of suit, the wasted costs of the 20^th February 2012, including the costs of the application by the plaintiff to compel the defendant to deliver further and better particulars in terms of Rule 21.

 

 

                            

A M KGOELE

JUDGE OF THE HIGH COURT

 

ATTORNEYS

FOR PLAINTIFF: Charles Sherman Kruger & Prosser Inc,

C/O Van Rooyen Tlhapi Wessels Inc.

9 Proctor Avenue Mahikeng

2745

FOR DEFENDANT: Smit Stanton Incorporated

29 Warren Street

MAHIKENG

2745

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