Nedbank Limited v Fixtrade 760 (Pty) Ltd and Others (19859/2013) [2017] ZAGPPHC 221 (29 May 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 19859/2013

Reportable: No

Of interest to other judges: No

29/5/2017

In the matter between:

NEDBANK LIMITED

PLAINTIFF

and

FIXTRADE 760 (PTY) LTD (Reg. No: 2001/019916/07)

1st DEFENDANT

DANIEL JOSEPH SHALALA (ID No: […])

2nd DEFENDANT

CLAUDE BOULOS AZAR (ID No: […])

3rd DEFENDANT

JUDGMENT

KUBUSHI, J

[1] The plaintiff applies for leave to appeal to the full court against the whole of my judgment delivered on 15 August 2016. At the commencement of the hearing the plaintiff's counsel abandoned the appeal against claim "A".

[2] The test for an application for leave to appeal is set out in section 17 (1) of the Superior Courts Act 10 of 2013, which states that leave to appeal may only be given where the judge concerned is of the opinion that:

2.1 The appeal would have a reasonable prospect of success; or

2.2 There is some other compelling reason why the appeal should be heard.

[3] In this instance the plaintiff relies on the test that the appeal has a reasonable prospect of success in that, based on the grounds raised, another court would come to a different conclusion.

[4] Claim "B" was in essence a claim based on an Invoice Discount Agreement (the agreement) entered into between the plaintiff

and the first defendant and for which the second and third defendants signed suretyship. What I had to determine at the trial was whether the said agreement was breached by the first defendant and if so, on what basis and whether the plaintiff invoked the remedies afforded to it in terms of the agreement and as such proving its case.

[5] The plaintiff's case, as presented in its papers, was that the first defendant breached the terms of the agreement in that 'it ceased to make any payment due in terms thereof promptly on due date or at all. The breach according to the plaintiff entitled it to exercise its rights in terms of the agreement which, amongst others, was to cancel the agreement. As regards quantum, the allegation was that the parties agreed that the nature and amount due and payable would be proved by the mere production of a certificate of balance signed by the manager of the plaintiff.

[6] The plaintiff led the evidence of three witnesses in order to prove the alleged breach of the agreement. Out of the three witnesses, only Mr Kabue could testify as to the validity of the cancellation of the agreement. The other two witnesses' evidence was not helpful as it related to issues that happened after the agreement had been cancelled.

[7] In my judgment I dismissed the plaintiff's claim with costs on the basis that the plaintiff failed to prove its case. I in the process made the following findings:

7.1 The plaintiff failed to prove a breach of clause 18.2.1 of the agreement, that is, that the principal debtor failed to make payment on due date; and

7.2 No case was made out that an amount of R5 536 068, 14 or any other amount was due and payable.

[8] In argument before me the plaintiff's counsel contends that there are reasonable prospects that another court would come to a different finding. According to counsel, having made no credibility findings against the plaintiffs witnesses I should have accepted the evidence as conclusive proof of the breach that resulted in the cancellation of the agreement. According to counsel, the Cashbuild saga, the fraud committed by the first defendant's accountant and the opening of the Standard Bank account should have been accepted as proof of the breach that warranted cancellation of the agreement.

[9] Counsel fails to consider that in regard to the Cashbuild saga the plaintiff did not produce the invoices as proof that such invoices were paid to the first defendant. The evidence tendered proves that the Standard Bank account was opened only after the agreement was cancelled. I could find no prove that the first defendant was vicariously liable for the fraudulent conduct of its accountant. The plaintiff also relied heavily on the internal auditor's report to prove entitlement to cancellation of the agreement but the evidence tendered in this respect was wholly hearsay and I, in my judgment, rejected it. Most importantly, counsel fails to take into account that the plaintiffs evidence unchallenged as it was did not prove the case pleaded by the plaintiff in its particulars of claim.

[10] Counsel further contents that Ishould have accepted the certificate of balance as prima facie proof that the amount of R5 536 068, 14 was due and owing. There was no evidence which convinced me as to how the amount of R5 536 068, 14 was made up. The production of the certificate of balance as proof of the amount owed was complicated by the evidence of Ms Warricker who testified that the certificate did not reflect some of the money she collected and handed over to the plaintiff.

[11] I am as such constrained to come to the decision that another court, would under the circumstances come to a different conclusion.

[12] Another ground raised by the plaintiff is that having found that the defendant did not proceed with the counterclaim I should have dealt with it in my judgment by dismissing it with costs. The submission is another court would come to a different conclusion on this ground as well.

[13] It is my view that on this ground alone the appeal has prospects of success and that another court would come to a different conclusion.

[14] In the premises I make the following order:

14.1 Leave is granted to the plaintiff to appeal to the Full Court of this Division only in regard to the counter claim.

14.2 Costs are costs in the appeal.

___________________

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON THE

: 24 MAY 2017

DATE OF JUDGMENT

: 29 May 2017

PLAINTIFF'S COUNSEL

: ADV. J KILLIAN

PLAINTIFF'S ATTORNEY

: BALOYI SWART & ASSOCIATE INC.

FOR 2nd & 3rd DEFENDANTS

: MR R ZIMMERMAN

2nd & 3rd DEFENDANTS ATTORNEY : TAITZ & SKIKNE ATTORNEYS