BBT Electrical and Plumbing Construction and Maintenance CC t/a BBT Construction v Retmil Financial Services (Pty) Ltd (A120/2020) [2021] ZAFSHC 199 (14 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Appeal number: A120/2020

Case No: 2690/15

In the matter between:

BBT ELECTRICAL AND PLUMBING CONSTRUCTION Appellant

AND MAINTENANCE CC t/a BBT CONSTRUCTION

and

RETMIL FINANCIAL SERVICES (PTY) LTD Respondent

CORAM: NAIDOO, J et OPPERMAN, J et DANISO J

HEARD ON 10 MAY 2021

DELIVERED ON: 14 SEPTEMBER 2021

JUDGMENT BY: NAIDOO, J

[1] This is an appeal against the whole of the judgment of a single judge of this Division, which comes before us with the leave of the court a quo. The court delivered the judgment on 24 February 2020, in terms whereof it dismissed the applicant’s application with costs. Adv N Snellenburg SC appeared on behalf of the appellant and Adv SJ Reinders on behalf of the respondent. The applicant, BBT Electrical and Plumbing Construction and Maintenance CC t/a BBT Construction (BBT), sought an order against the respondent, Retmil Financial Services (Pty) Ltd (Retmil), in the following terms:

“1. That the Respondent be ordered to render to the Applicant within TWO (2) MONTHS from date of this order, a true and proper statement of account, together with substantiating documentation reflecting how the amounts are made up and calculated in respect of the following accounts from date of conclusion of agreement to date hereof:

1.1 Contract Number 823 totalling R284 888.06;

1.2 Contract Number 547 totalling R190 971.97;

1.3 Contract Number 548 totalling R446 116.13;

1.4 Contract Number 870 totalling R43 831.32;

1.5 Contract number 473 totalling R218 870.27;

1.6 Contract Number 474 totalling R117 957.50;

1.7 Contract Number 529 totalling R25 840.82;

2. The Respondent is ordered to debate the said accounts with the Applicant within ONE (1) MONTH from the date that such account was rendered in terms of prayer 1 above.

3. Costs of suit;

4. Further and/or alternative relief.”

[2] The court a quo recorded that BBT and Retmil had enjoyed a business relationship which commenced over twenty (20) years ago. They entered into numerous loan and credit agreements over the years, most of which have been settled. A dispute arose between them in 2014 in respect of the amounts allegedly owed by BBT to Retmil. The latter’s attorney sent ten (10) letters of demand to BBT in respect of amounts due and payable on various contracts. The total amount claimed was R2 883 42.20. This set in motion a plethora of correspondence between the parties and their legal representatives, as well as a number of meetings in an attempt to resolve the issues between them. Certain recalculations were done and lower amounts were claimed from BBT in order to settle the matter. It seems that such attempts came to naught. BBT contended that Retmil’s claim for numerous differing amounts was indicative of its inability to provide a properly substantiated calculation of monies allegedly owed by BBT. The latter ultimately launched the current application.

[3] The judgment of the court a quo was assailed on a number of grounds as follows:

1. The finding in paragraph 24 of the judgment insofar as it was part of the reasoning for dismissing the application, with respect, constitutes a misdirection. The applicant conceded in its replying affidavit that the relief in the conditional counter application for the inclusion of the Loan and Guarantee in order for the debatement should be incorporated in the order made by the Court. The issue was no longer an alive dispute calling for adjudication.

2. The Court erred in finding that the applicant’s claim that Retmil gave insufficient accounting was opportunistic and not supported by the correspondence between the parties.

3. The Court erred in finding that a debatement, in the sense of proper debatement in law as claimed by the applicant, by means of a spreadsheet took place.

4. The Court erred in not taking into consideration that the respondent relied on the ‘spreadsheet debatement’ which it failed to append or produce. The Court erred in not rejecting the respondent’s version on this basis.

5. The Court erred in not finding that the version of the ‘spreadsheet debatement’ was contradicted by the correspondence on behalf of Retmil thereafter.

6. The Court erred by discounting Retmil’s own evidence and, with respect, speculating on the essence of the ‘old’ contracts without Retmil itself having raised this issue or having denied that the outstanding documents are relevant to the debatement.

7. The Court erred in, by implication, holding that the applicant is entitled to rely on the remedies created by the National Credit Act 34 of 2005 without then finding that the applicant was in law entitled to proper and full accounting.

8. The Court erred in not finding that Retmil admitted BBT’s right to a debatement. Retmil relied on the fact that it did take place, alternatively that BBT abandoned the right. Neither of the defences raised by Retmil constitutes bona fide disputes.

9. The Court erred in finding that the renunciation of certain common law exceptions in the bond prevented debatement in terms of the loan agreements where the common law exceptions were not renounced.

10. The Court erred in not taking into consideration the nature of a bond specifically that it is subordinate and ancillary to a loan agreement. The Court thus also erred in deciding that it is artificial to separate the terms of the bond and the loan agreements.

11. The Court therefore erred in not granting an order in terms of prayers 1.1 up to and including 1.6 of the notice of motion and the Loan and Guarantee referred to in Retmil’s ‘conditional counter application’.

[4] The law on the issue is clear. The court a quo correctly stated the legal position in citing various cases in its judgment (See paras [6] to [8]). The court stated that in an action for a statement of account the Plaintiff should aver his/her right to receive an account, and the basis of such right, whether by contract or by fiduciary relationship or a statutory duty. The court cited with approval the case of Victor Products (SA) (Pty) Ltd v Lateulere Manufacturing (Pty) Ltd 1975 (1) SA 961 (W) at 963, where the court held that:

“The right at common law to claim a statement of account is, of course, recognized in our law, provided the allegations in support thereof make it clear that the said claim is founded upon a fiduciary relationship between the parties or upon some statute or contract which has imposed upon the party sued the duty to give an account. Allegations which do no more than to indicate a debtor and creditor relationship would not justify a claim for a statement of account.”

[5] In para [7] the court said:

“If the plaintiff relies upon such a contractual right as in the present matter, the terms of the contract must be alleged and proved (Beck’s Theory and Principles of Pleading in Civil Actions (6th Edition) Butterworths 190). Furthermore, the defendant’s failure to render an account or, if an incomplete account has been rendered, the failure to render a proper account has to be established. (Doyle and Another v Fleet Motors P.E. (Pty) Ltd 1971 (3) SA 760 at 762 F – H). On proof of the aforegoing the court will usually order the rendering of an account within a specific time. The degree or amplitude of the account to be rendered will depend on the circumstances of each case. In some cases it might be necessary that vouchers, or other substantiating documents or explanations be included in the order. The parties should then proceed to debate the account between themselves. If they are unable to reach an agreement, they should then formulate a list of the disputed items. If they are unable to agree upon the outcome, they should, whether by pre-trial conference or an amendment of the pleadings then set the matter down for debate in court. (Doyle at p. 763 A).”

[6] If the plaintiff has already received an account which he avers is insufficient, the court may enquire into and determine the issue of insufficiency, in order to decide whether to order the rendering of a proper account. What is clear is that the procedure to be followed is not rigid and should enjoy such measure of flexibility as practical justice may require. (See para 8)

[7] At best, the duty (which is common cause) was to deliver monthly statements which the respondent avers it did. In Moila v Tshwane Metropolitan Municipality (249/16) [2017] ZASCA 15 (22 March 2017), at paragraph [10], the court remarked that the right to debate an account is not to be confused with the right to receive same. The two are not coextensive.

[8] In terms of ABSA Bank Beperk v Janse van Rensburg 2002 (3) SA 701 at 708 paragraphs [15] and [16], the court held that the debatement of an account is not merely there for the asking. To be successful with such an application the appellant must have shown that it is entitled to the said delivery of documents and the debatement thereof. In particular, it is expected of an applicant where reliance is placed on a legal provision to aver and prove same.

[9] The court a quo undertook a detailed examination and analysis of the evidence placed before it , before concluding that BBT had not made out a case for the relief it sought. The court examined the various arguments put forward by BBT and Retmil in support of their respective cases. In essence, the applicant who seeks an order for account and debatement must aver the following:-

(a) The right to receive an account either based on a fiduciary or contractual relationship;

(b) Any contractual terms of the circumstances having a bearing on the account sought; and

(c) The respondent’s failure to render the account.

(See Amler’s Precedent of Pleadings, 9th edition, page 13).

[10] The court (at para 27) was satisfied that that the first two elements listed in (a) and (b) above had been established. With regard to (c), the court found that accounts were rendered by Retmil and that the onus was on BBT to show that the rendered accounts were insufficient. The court found that BBT had failed in that regard, on the basis that BBT did not explain in which respect the accounts received were insufficient, and merely relied on the discrepancies in the amounts claimed by the respondent, namely, R1 198 816.02 on 22 August 2014 and R900 000 on 04 September 2014. On the available facts the latter amount was merely an attempt to settle the dispute not the revised amount and it corresponds with the letter from the appellant’s letter dated 13 August 2014 (para 28 of the judgment)

[11] I pause to mention here that the amount of R1 198 816.02 was an amount proposed by BBT’s attorney for the settlement of the matter at a meeting between the parties on 22 August 2014. In his Heads of Argument in the appeal before us, Mr Snellenburg pointed out that the meeting on 13 August 2014 at which Retmil alleges that the accounts were debated to the satisfaction of BBT’s attorney, the accounts that were discussed and agreed upon were in fact, only in relation to the Limo and Hennenman projects, which are mentioned in the papers. Mr Snellenburg referred to a previous application between these parties. He further alleges that the reliance by the court a quo on the spreadsheet emanating from this meeting as a debatement of all the accounts in dispute in this matter, is a misdirection and that this is one of the grounds upon which the appeal should succeed. I interrupt myself to point out that BBT did not deal meaningfully with the aspect of the agreement on 22 August 2014, nor the proposal by its attorney of the amount that should be paid by BBT to settle the matter.

[12] The discrepancy in the versions of Retmil in the cession application and in this application was not specifically raised before the court a quo and was clearly not considered by the court, in the context now presented. Even if it were to be held that the court a quo ought to have considered the version by Retmil placed before the court in the previous cession application, and that it should have found that a ‘debatement’ of the accounts relevant to this matter had not taken place, it does not, in my view, alter the correctness of the order ultimately made. The court a quo correctly placed reliance on the Absa v Van Rensburg case in its analysis of the evidence and in finding that debatement of an account is not there simply for the asking and that BBT ought to have alleged and proved the contract/s between the parties and, more especially in what manner the accounts or statements relevant thereto were insufficient.

[13] BBT did not mention such deficiency or insufficiency in the statements rendered by Retmil, but, as correctly pointed out by the court a quo, merely relied on the discrepancies in the amounts claimed from it by Retmil on different dates. There could be a variety of reasons for this, one of which being fluctuating costs, including interest on the amounts due. It was not the function of the court a quo or of this court to speculate about the reason for discrepancies. It is also correct, as found by the court a quo, that a claim for debatement of an account is usually brought by way of action proceedings. In bringing such a claim by way of motion proceedings, this application is subject to the Plascon Evans-rule that when factual disputes arise relief should be granted only if the facts stated by the respondent, together with the admitted facts in the applicant's affidavits, justify the order. The court a quo dealt with the respective versions, conscious of the Plascon Evans-rule and correctly found that the application should be dismissed, as it could not come to the assistance of the parties in determining if there were insufficiencies in the statements or in calculating the debt owed.

[14] In summary, I am unable to fault the reasoning of the court a quo, or its application of the law to the facts in arriving at its ultimate decision. In my view, the order made by the court does not warrant the interference of this court. In the circumstances, the following order is made:

14.1 The appeal is dismissed with costs.

S NAIDOO, J

I Concur

M OPPERMAN, J

NS DANISO J

On behalf of Appellants : Adv N Snellenburg SC

Instructed by : Blair Attorneys

35 First Avenue

Westdene

Bloemfontein

(Ref: Mr Blair)

On behalf of Respondent : Adv SJ Reinders

Instructed by: : Van Wyk & Preller Inc

67 President Paul Kruger Ave

Universitas

(Ref: Mr Ahrens)