RSA Aartappelsaad Beurs (Edms) Bpk v Weldaad Boerdery (Edms) Bpk (3852/2010) [2010] ZAFSHC 159 (9 December 2010)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH

AFRICA

Case No.: 3852/2010

In the matter between:

RSA AARTAPPELSAAD BEURS (EDMS) BPK ….........................Plaintiff

and

WELDAAD BOERDERY (EDMS) BPK …....................................Defendant

JUDGEMENT: MOCUMIE, J

___________

HEARD ON: 21 OCTOBER 2010

DELIVERED ON: 9 DECEMBER 2010

[1] This is an application for provisional sentence for the amount of R564 286,16 [2] The plaintiff claimed from the defendant payment of nine post-dated cheques, accepted by the plaintiff allegedly in settlement of a debt of the defendant’s company, which cheques were later dishonoured. The defendant admits that it has issued the said cheques and that same have been properly signed. [3] In its opposing affidavit the defendant denies that it owes the plaintiff the amount of R564 286,16. It alleges that the said cheques were given as security for payment of the amount on the account of Weldaad Boerdery. It further alleges that the acknowledgement of debt on which the plaintiff’s cause of action is based did not refer to the said amount but his own personal debt which had since been settled by a provisional order which the defendant sought and obtained against defendant during the year 2008 under case no. 4917/2006. [4] The defendant alleged further that as far as the cheques were concerned it was agreed between the parties, the plaintiff represented by Mr. Myburg and the defendant by Mr. Van der Merwe, that the defendant should write out the cheques and give to the plaintiff. Same would be given back to the defendant on condition that the total amount of Weldaad Boerdery was paid. [5] In the replying affidavit the plaintiff disputes these allegations and avers that the plaintiff

requested the defendant to give security for the amount owed by the defendant for a certain period by furnishing the plaintiff with nine post-dated cheques. The said cheques were given as security for the payment of the amount on the account of Weldaad Boerdery. The acknowledgment of debt in respect of the defendant in his personal capacity under case 4917/2006 did not refer to the said amount. [6] The plaintiff further averred that the parties had agreed that the cheques would be given back to the defendant on condition that the total amount of Weldaad Boerdery was paid off. Since the amount of R564 286,16 had not been paid by Weldaad Boerdery, the plaintiff was entitled to payment on the cheques. That is why it deposited the cheques which were however dishonoured. [7] The defendant denies this and alleges that in the previous provisional sentence against Mr Van der Merwe personally, the plaintiff in its replication had alleged under oath “…dat hierdie tjeks nie gegee is ter betaling van enige skuld wat deur die skulderkenning verteenwoordig word nie.” This according to the defendant was an admission on the part of the plaintiff that the defendant gave out the disputed cheques for the payment of R302 752,98 which was owed by the defendant to the plaintiff as on 30 April 2006 and that the debt was paid through internet banking as agreed upon by the parties. See Saambou

Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A) at 992-993. According to the defendant the cause of the contract on the instrument was non-existent at the time the plaintiff signed it. See Eagle Insurance v NBS Bank 2002 (1) SA 560 (SCA) [39]; Froman v Roberts 1971 (1) SA 115 (A) at 121 – 222. Furthermore, the drawee and payee of a cheque must agree on the debt of which the instrument is given before that debt can be regarded as the cause of the contract on the instrument. In this case there is no such agreement (Saambou Nasionale Bouvereniging v Friedman supra at 992 – 993.) [8] It was clearly stated in the seminal decision of Sonfred (Pty) Ltd v Papert 1962 (2) SA 140 (W) at 143 that: “In the great majority of the applications for provisional sentence which come before our Courts, when the matter of defence is raised, van der Linden's rule comes into operation, and provisional sentence is granted unless the defendant shows by his affidavits that on a preponderance of probabilities he is likely to succeed in the principal case. If upon consideration of the affidavits the Court considers that there is no balance of probabilities in favour of the success of either party in the principal case, as the document shows a liquid obligation, provisional sentence must be granted (1 M., Prefatory note p. 8; Inglestone v Pereira, 1939 W.L.D. 55 at p. 71; Morris and Berman v Cowan,

1940 W.L.D. 33; Smith v Snyman, 1940 OPD 113; Allied Holdings Ltd v Myerson, 1948 (2) SA 961 (W) at p. 966).” [9] It is clear that the plaintiff’s version contradicts the defendant’s. The point of departure of our courts in instances where the versions of the witnesses are in direct conflict is as stated by Lombard J in Hochfeld Commodities (Pty) Ltd v Theron 2000 (1) SA 551 (O) A at 559 where he states with reference to Employers' Mutual General Insurance Association v Gany 1931 AD 187 at 199: “ ‘Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version, and that in this case absolute reliance can be placed upon the story as told by A.' ” [10] When one considers the version of the plaintiff it is simply that the defendant owed it money for goods sold during a certain period. It failed to pay the amount owing. The plaintiff instituted a claim against Mr. Van der Merwe in his personal capacity for “aartappel moertjies” during a certain period. A provisional sentence was granted against him. When the defendant,

did not pay its debt, the plaintiff deposited the post-dated cheques which were given by the defendant which cheques were dishonoured. [11] The defendant’s case is that it did not owe the plaintiff any money. Whatever it had owed the plaintiff was obtained by a provisional sentence granted against Mr. Van der Merwe personally. The defendant no longer owed the plaintiff any money. Apart from the fact that the plaintiff had written off the defendant’s debt (another point in limine raised by the defendant) the post-dated cheques which Mr. Van der Merwe had given to Mr Myburg representing the plaintiff was as security for payment of debts owed to the plaintiff which debts were paid off by internet banking or payments. Thus, the causa of the cheques had been extinguished. [12] On the papers and even during oral submissions both counsel stuck to their versions and consequently both versions remain divergent and mutually destructive versions. I am constrained to accept that the two versions cannot be reconciled. In the light thereof and on a conspectus of all the evidence on the papers it cannot be said that the probabilities favour the defendant. Having two conflicting versions before me I am unable to chose between the two versions. In which event and in line with the Sonfred-decision supra which is still good law today provisional sentence ought to be granted. [13] In the circumstances provisional sentence on the cheques is granted with costs. ___ B. C. MOCUMIE, J On behalf of the plaintiff: Adv. S. J. Reinders Instructed by: Rosendorff Reitz Barry

BLOEMFONTEIN On behalf of the defendant: Adv. P. J. T. de Wet Instructed by: Lovius-Block

BLOEMFONTEIN /eb

[1] This is an application for provisional sentence for the amount of R564 286,16

[2] The plaintiff claimed from the defendant payment of nine post-dated cheques, accepted by the plaintiff allegedly in settlement of a debt of the defendant’s company, which cheques were later dishonoured. The defendant admits that it has issued the said cheques and that same have been properly signed.

[3] In its opposing affidavit the defendant denies that it owes the plaintiff the amount of R564 286,16. It alleges that the said cheques were given as security for payment of the amount on the account of Weldaad Boerdery. It further alleges that the acknowledgement of debt on which the plaintiff’s cause of action is based did not refer to the said amount but his own personal debt which had since been settled by a provisional order which the defendant sought and obtained against defendant during the year 2008 under case no. 4917/2006.

[4] The defendant alleged further that as far as the cheques were concerned it was agreed between the parties, the plaintiff represented by Mr. Myburg and the defendant by Mr. Van der Merwe, that the defendant should write out the cheques and give to the plaintiff. Same would be given back to the defendant on condition that the total amount of Weldaad Boerdery was paid.

[5] In the replying affidavit the plaintiff disputes these allegations and avers that the plaintiff requested the defendant to give security for the amount owed by the defendant for a certain period by furnishing the plaintiff with nine post-dated cheques. The said cheques were given as security for the payment of the amount on the account of Weldaad Boerdery. The acknowledgment of debt in respect of the defendant in his personal capacity under case 4917/2006 did not refer to the said amount.

[6] The plaintiff further averred that the parties had agreed that the cheques would be given back to the defendant on condition that the total amount of Weldaad Boerdery was paid off. Since the amount of R564 286,16 had not been paid by Weldaad Boerdery, the plaintiff was entitled to payment on the cheques. That is why it deposited the cheques which were however dishonoured.

[7] The defendant denies this and alleges that in the previous provisional sentence against Mr Van der Merwe personally, the plaintiff in its replication had alleged under oath

“…dat hierdie tjeks nie gegee is ter betaling van enige skuld wat deur die skulderkenning verteenwoordig word nie.”

This according to the defendant was an admission on the part of the plaintiff that the defendant gave out the disputed cheques for the payment of R302 752,98 which was owed by the defendant to the plaintiff as on 30 April 2006 and that the debt was paid through internet banking as agreed upon by the parties. See Saambou Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A) at 992-993. According to the defendant the cause of the contract on the instrument was non-existent at the time the plaintiff signed it. See Eagle Insurance v NBS Bank 2002 (1) SA 560 (SCA) [39]; Froman v Roberts 1971 (1) SA 115 (A) at 121 – 222. Furthermore, the drawee and payee of a cheque must agree on the debt of which the instrument is given before that debt can be regarded as the cause of the contract on the instrument. In this case there is no such agreement (Saambou Nasionale Bouvereniging v Friedman supra at 992 – 993.)

[8] It was clearly stated in the seminal decision of Sonfred (Pty) Ltd v Papert 1962 (2) SA 140 (W) at 143 that:

“In the great majority of the applications for provisional sentence which come before our Courts, when the matter of defence is raised, van der Linden's rule comes into operation, and provisional sentence is granted unless the defendant shows by his affidavits that on a preponderance of probabilities he is likely to succeed in the principal case. If upon consideration of the affidavits the Court considers that there is no balance of probabilities in favour of the success of either party in the principal case, as the document shows a liquid obligation, provisional sentence must be granted (1 M., Prefatory note p. 8; Inglestone v Pereira, 1939 W.L.D. 55 at p. 71; Morris and Berman v Cowan, 1940 W.L.D. 33; Smith v Snyman, 1940 OPD 113; Allied Holdings Ltd v Myerson, 1948 (2) SA 961 (W) at p. 966).”

[9] It is clear that the plaintiff’s version contradicts the defendant’s. The point of departure of our courts in instances where the versions of the witnesses are in direct conflict is as stated by Lombard J in Hochfeld Commodities (Pty) Ltd v Theron 2000 (1) SA 551 (O) A at 559 where he states with reference to Employers' Mutual General Insurance Association v Gany 1931 AD 187 at 199:

“ ‘Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version, and that in this case absolute reliance can be placed upon the story as told by A.' ”

[10] When one considers the version of the plaintiff it is simply that the defendant owed it money for goods sold during a certain period. It failed to pay the amount owing. The plaintiff instituted a claim against Mr. Van der Merwe in his personal capacity for “aartappel moertjies” during a certain period. A provisional sentence was granted against him. When the defendant, did not pay its debt, the plaintiff deposited the post-dated cheques which were given by the defendant which cheques were dishonoured.

[11] The defendant’s case is that it did not owe the plaintiff any money. Whatever it had owed the plaintiff was obtained by a provisional sentence granted against Mr. Van der Merwe personally. The defendant no longer owed the plaintiff any money. Apart from the fact that the plaintiff had written off the defendant’s debt (another point in limine raised by the defendant) the post-dated cheques which Mr. Van der Merwe had given to Mr Myburg representing the plaintiff was as security for payment of debts owed to the plaintiff which debts were paid off by internet banking or payments. Thus, the causa of the cheques had been extinguished.

[12] On the papers and even during oral submissions both counsel stuck to their versions and consequently both versions remain divergent and mutually destructive versions. I am constrained to accept that the two versions cannot be reconciled. In the light thereof and on a conspectus of all the evidence on the papers it cannot be said that the probabilities favour the defendant. Having two conflicting versions before me I am unable to chose between the two versions. In which event and in line with the Sonfred-decision supra which is still good law today provisional sentence ought to be granted.

[13] In the circumstances provisional sentence on the cheques is granted with costs.

___

B. C. MOCUMIE, J

On behalf of the plaintiff: Adv. S. J. Reinders

Instructed by:

Rosendorff Reitz Barry

BLOEMFONTEIN

On behalf of the defendant: Adv. P. J. T. de Wet

Lovius-Block

/eb