Sarens Siba (Property) Limited v Mafate Business Enterprise (8860/2019) [2023] ZALMPPHC 54 (18 July 2023)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE.

CASE NO.8860/2019

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

DATE: 18/07/2023

In the matter between: SARENS SIBA (PROPERTY) LIMITED PLAINTIFF And MAFATE BUSINESS ENTERPRISE DEFENDANT

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives via email and released to SAFLII. The date and time of handing down id deemed to be the 18 July 2023 at 10:00.

SEMENYA AJP.

[1] Plaintiff instituted action against the defendant, comprising of three separate claims, hereinafter referred to as Claim A, Claim Band Claim C. Plaintiff seek payment in the amount of R483 138.46, R492 565.00 and R14 007.00 in respect of Claim A, B and C respectively, together with costs of the suit and interest.

[2] In respect of Claim A, plaintiff alleges in the particulars of claim that during or about July 2018, the parties, duly represented by their respective authorised representatives, entered into a written agreement for the hire of 50 tons All Terrain Crane. It is further alleged that pursuant to the written agreement, the parties entered into two verabal agreements in or around August 2018 and September 2018 to extend the rental period of the first agreement to 31 August 2018 and 7 September 2018 on the same terms as in the written agreement.

[3] In Claim B, it is alleged that in August 2018, both parties, duly represented by their authorised representatives, entered into a written agreement for the hire of a 300-tons All Terrain Crane and for a 50 tons Crane in respect of Claim C which was concluded in October of the same year.

[4] Plaintiff further alleges that the written agreement entered into by the parties in respect of Claim A and B comprises of the quotation, the plaintiff's General Terms and Conditions of the agreement, which,

according to the plaintiff, constituted the offer, the defendant's Purchase Order and the plaintiff's Job Contract which are the

defendant's acceptance. Claim C comprises of the quotation, the General Terms and conditions and the Job Contract only. The relevant

documents are annexed to the particulars of claim.

[5] The defendant denies in his plea that the quotation, the General Terms and Conditions and the Job Contract form part of the agreement. According to the defendant's plea, the Purchase Order is the sole and exclusive document that gives rise to the contractual relationship between the parties. The delivery of the cranes, the hourly rates charged, the establishment of the site and the fee charged are however admitted by the defendant. He denies liability in respect of the extended hours as well as the agreement in Claim C on the basis that he did not sign a Purchase order pertaining to that claim.

[6] Two witnesses testified on behalf of the plaintiff and one for the defendant. Ilse Jonas testified that she is employed by the plaintiff as credit controller, the position that is currently referred to as administrator. Part of her duties are to load customers into the plaintiff's system, doing credit check, liaising with sales representatives and to follow up on outstanding accounts. She further stated that one Gareth Langley was the plaintiff's sales representative who was dealing directly with the defendant and that he has since left the plaintiff.

[7] During the course of her duties, she received the defendant's documents which includes company letterheads, the defendant's CK, customer request form, CRM form and the Purchase Order for the 50ton crane. She also received the General Terms and Conditions of the Contract which was duly signed by the plaintiff and the defendant's representatives.

[8] Upon inspection of the defendant's document, she became aware that there were certain outstanding amounts that the defendant still owed to the plaintiff. On the 11 October 2018, she caused to be sent to the defendant a letter of demand for the outstanding payment in the amount of R975 703.46. The letter brought it to the attention of the defendant that it has been ignoring several emails and requests that have been forwarded to it regarding the outstanding amounts. One Lucas Makua of the defendant responded by email dated 12 October 2018 stating that "Gareth I do not want this type of rubbish."

[9] Miss Jonas further testified that on the 16 November 2018, she again sent another letter of demand to the defendant in which payment of the same outstanding amount. On the same date, Mr Makua responded as follows "pls tell Gareth to make follow-ups with Glencore on those invoices, as soon as they pay I will pass the money to you."

A physical meeting was later arranged between the representatives of the parties in this matter after the defendant failed to pay the outstanding amount was sought. She stated that she could not remember the details of the discussions in the meeting. She however stated that she did not hear Mr Makua disputing any of the invoices.

[10] Miss Jones took this court through the General Terms and Conditions of the Contract. In terms of clause 2 of the agreement, where the agreement is for specified period of time, the hirer (defendant) was required to give the owner (plaintiff) of the equipment a 24 hour written notification whenever it wishes to terminate the agreement. Should the hirer fail to do so, the agreement was to be deemed to be automatically extended for continuous additional periods of 24 hours on the same terms and conditions.

[11] In terms of clause 16, charges payable by the hirer are based upon the hours or days as reflected in the daily time sheets kept by the owners' operator. It is the responsibility of the owner's operator to present the time sheets to the hirer for signature. The hirer is required to give the owner a written notification of any dispute or refusal to sign the time sheet within 24 hours of presentation of its presentation. It was agreed that failure to give such notice will

automatically constitute an agreement by the hirer to such information contained in the time sheet. The hirer shall waive its,

his or her right to dispute the contents of the time sheet after the expiry of the 24 hour period.

[12] It was further agreed that the time sheets which are duly completed by the owner's operator shall constitute prima facie evidence of the correctness of its contents. The signature of or on behalf of the hirer will constitute acceptance of the correctness of the contents of the time sheets. In terms of clause 16, the hirer warrants that whoever signs the time sheets of its behalf will be duly authorised by the hirer to do so.

[13] The parties agreed that the defendant will provide the plaintiff with

a copy of insurance cover for the hired equipment. Should the hirer fail to do so, that of the owner will be used and the hirer will be charged at the rate of 20% of the total hours on the time sheet. It is common cause that the defendant did not provide the plaintiff with an insurance cover for any of the cranes that he had hired from the plaintiff.

[14] Ms Jonas testified that the plaintiff never received any written notification of any dispute from the defendant as required in terms of the agreement. She further stated that Mr Makua of the defendant did not dispute the time sheets contents in a meeting arranged between him and the representative of the plaintiff. She could not respond to the questions put to her during cross-examination in respect of the documents discovered by the plaintiff. Such documents relate to the purchase orders, the time sheets and quotations.

[15] Mr Shawn Reeves testified that he is the current finance administrator of the plaintiff. He compiled invoices which were forwarded to the defendant and which were discovered in this case. He stated that the quotation in respect of claim A was for a 50 ton crane and was hired for a period of ten days. The job contract number on the quotation is S-18-13898 and the crane was to be delivered at Glencore Merafo Lion Smelter, Steelpoort. The hire rate is R950 per hour with excess hourly rate of R903.00. The site establishment was for R1200. It is stated on the job contract that the defendant will be charged 20% of the hire rate in relation to insurance which translated into R190.00 per hour.

[16] Mr Reeves testified that in so far as the minimum hours are concerned, if the crane worked for one hour, the hirer will be charged for minimum 12 hours. He stated that the defendant accepted that the offer and acceptance are subject to the Standard Terms and Conditions of the agreement.

[17] Mr Reeves testified further that he referred to the job contract, the quotation and the purchase order in the compilation of the invoices. He stated that the time sheet will generally reflect the name of the

customer, the site to which the crane is be delivered, the name of the operator, the description of the crane, the job/contract number, the dates and hours, including lunch hour on which the crane was on site and the names and signature of the hirer's representative. Mr Reeves testified that a Mr Mandla Mabilu signed the time sheets on behalf of the defendant.

[18] In respect of claim B, Mr Reeves testified that the defendant hired a 300 ton crane at the hourly rate of R3 850.00 for a period of seven days. It was to be charged an amount of R770.00 per hour in respect

of insurance. He stated that the hiring period of one hour as reflected on the job contract is an error as the defendant intended

to hire crane for seven days. The crane was nevertheless with the defendant from the 12 August to the 23 August 2018, i.e for a total 12 days period. According to Mr Reeves, the defendant was charged for the extra five days as it neither returned the crane nor furnished the plaintiff with a written termination of the agreement after the expiry of seven days.

[19] Mr Reeves agreed that in some of the time sheets, the names of the customer are recorded as Lion Smelter or Cleveland Crane Hire CC. In his explanation of that fact, he stated that the plaintiff had cross-hired the crane from Cleveland as it did not have the crane required by the defendant. On the issue that in some of the job contract the names of the customer is reflected as Lion Smelter instead of the defendant, he stated that most probably it was because Mr Ishmael Shabalala, who operated the crane on behalf of the plaintiff at Lion Smelter site, did not know the names of the customer and simply used the name of the site where he operated it. He however stated that this is not supposed to be an issue in that the representative of the defendant signed the time sheet and the crane was operated at Lion Smelter, Glencore at the instance of the defendant.

[20] In respect of claim C, Mr Reeves acknowledged that the job contract was not signed by or on behalf of the defendant. He stated that the quotation was for a 50 ton crane to be hired for a period of three days. The time sheet for the 4 October 2018 was nonetheless signed by M Mabilu. He stated that according to the agreement, the absence of a signature on job contract did not invalidate the agreement and that the customer will be invoiced on the quotation. He stated that the crane was with the defendant for one instead of four days.

[21] Mr Reeves, like Ms Jonas, testified that the plaintiff never received any written dispute of any of the time sheets or invoice presented to the defendant. He stated that the total amount owing is R989 710.46.

[22] During cross-examination he admitted that some of the time sheets attributed to the defendant did not reflect the names of the customer at all. He stated that he used the job contract number S-18-13898 to

identify them as those of the defendant in his compilation of the invoice. It was put to him that the defendant will deny liability in respect of time sheets which bare the letterheads of Cleveland or which states that Sarens and Lion Smelter are the customer. He confirmed that there was no purchase order in respect of claim C and that the defendant had indicated that it will advise the plaintiff in this regard. This was the evidence as presented by the plaintiff.

[23] Mr Mohlaka Lucas Makua testified on behalf of the defendant. He confirmed that he received the invoices and that he did not pay the amount claimed. He testified that he did not pay because the order was for ten days and the plaintiff unilaterally extended the period. He did not know a person called Mandla Malibu who is said to have signed the time sheets on behalf of the defendant and that as far as he knows no one signed on behalf of the defendant. He stated that he knows the person called Bilus who is employed at Lion Smelter.

[24] Mr Makua confirmed that the defendant is bound by the terms and conditions of the contract, in particular clause 2 and 16 thereof. He did not take issue with the documents pertaining to the hire of the crane in claim A except for the extended days. It is important to note at this stage that the time sheet in respect of this claim was signed by Mandla Mabilu on behalf of the defendant. According to the terms and conditions of the agreement, it is assumed that he was authorised to do so. It later transpired that Silos and Mabilu was in fact one and the same person.

[25] Mr Makua stated that it is not correct that he, on behalf of the defendant, did not dispute the contents of the time sheets and invoices. He said he told Gareth that he does not accept it. He testified that he also said it in the meeting with the representative of the plaintiff. He denied that the defendant was liable to pay insurance and stated that it was Glencore's responsibility to do so. He paid an amount of R500 000.00 in full and final settlement of the amount due to the plaintiff.

[26] Mr Makua admitted during cross-examination that he did not provide the plaintiff with a copy of insurance cover as per the terms of the agreement. He further admitted that he agreed to pay insurance at the rate of 20% per hour. He confirmed that the defendant was on site at Lion Smelter rendering services for Glencore Crane Hire CC. In respect of claim A, he confirmed that he did not dispute the time sheets in writing but that he told Gareth that he knows nothing about the extended hours. He agreed that the crane was never returned to the plaintiff after the expiration of ten days and that the defendant did not cancel the contract in writing. He also agreed that he signed the agreement and that there is a deeming provision in clause 2 in as far as a signature of a representative of the hirer is concerned.

[27] On claim B, Mr Makua agreed that the defendant received a quotation from the plaintiff for a 300 ton. He agreed that the entry that it was for one hour was incorrect. He stated that the initial term was seven days. He agreed that the purchase order of one hour does not form part of the contract. The delivery of the crane on site, the time sheets with the letter heads of Cleveland and the reference to Lion Smelter and the invoice were not placed in dispute. Mr Makua stated that he was referring to the use of lawyers by the plaintiff when he told Gareth that he does not want rubbish. He stated that he wanted to pay the amount claimed without the involvement of lawyers. He agreed that the defendant paid an amount of R500 000.00 after receipt of the letter of demand.

[28] In respect of claim C, Mr Makua denied liability because the purchase order was not signed by any of the defendant's representatives. He stated that if Gareth delivered the crane on site, it was not at the request of the defendant. He nevertheless admitted that he received the quotation and the invoice and that the told Gareth to make a follow up with Glencore and that he will pay as soon as Glencore pays the defendant. Mr Makua conceded that clause 2.8 of the agreement provides that if the hirer accept the quotation, but fail to sign the job contract or produce the purchase order, the hirer could be invoiced in accordance with the quotation. He conceded that, as with claim A and B, the time sheet in respect of claim C was signed by Mandla Mabilu on behalf of the hirer.

[29] Mr Makua conceded during cross-examination that the contract number that appears on the job contract, the time sheets and the invoice in respect of claim B is the same as those on documents pertaining to Claim A and that it is the defendant's number. That concludes the evidence in the defendant's case.

[30] In Minister of Safety and Security v Slabbert[1] (Slabbert) it was stated that:

"The purpose of pleadings is to define the issues for the other party and the court. A party has a duty to allege the pleadings the material facts upon which it relies. It is impermissible for a plaintiff to plead a particular case and seek to establish a different case at the trial. It is equally not permissible for the trial court to have recourse to issues falling outside the pleadings when deciding a case."

[31] The plaintiff pleaded in claim A that the defendant breached the two oral agreement that extended the first written agreement. However, as it appears from the summary of the evidence presented in this case, the plaintiff did not produce evidence to prove any oral agreement between the parties that was intended to extend the first written agreement. It is evident that the plaintiff is relying on the automatic extension of the written agreement, in view of the defendant's failure to return the crane or to serve the plaintiff with a written notice of termination, as provided for in clause 2 of the General Terms and Conditions of the agreement.

[32] On the basis of what has been stated in Slabbert above, counsel for the defendant submitted in the written argued that, in view of the plaintiff's failure to prove the existence of oral agreement, this court cannot grant the plaintiff an order as prayed for in claim A.

[33] In reply to the argument raised by the defendant in claim A, counsel for the plaintiff stated that counsel for the defendant is misleading the court by failing to refer it to paragraph [12] of Slabbert, where it was stated that the court is empowered to grant an order in circumstances where the evidence tendered in court is not in line with the pleadings, as long as the issue has been properly ventilated by the parties. The SCA in Slabbert relied on the decision in South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd[2] where it was said that:

"However, the absence of such an averment in the pleadings would not necessarily be fatal if the point was fully canvassed in evidence by both sides in the sense that the Court was expected to pronounce upon it as an issue."

[34] In the present matter, the plaintiff's witnesses testified about the automatic extension of the agreement. This court was taken through the Terms and Conditions of the written agreement. The two witnesses

were cross-examined at length by counsel for the defendant on the evidence regarding those aspects. Furthermore, Mr Makua on behalf of the defendant, admitted that he signed the written agreement with the clause relied upon by the plaintiff. He admitted that he neither returned the 50 ton crane that he had hired from the plaintiff, nor gave the plaintiff a written notice to cancel the agreement. On this basis, I find that this is a case where this court can grant and order even though the evidence does not go along with the pleadings, in line with the decision in Slabbert.

[35] The defendant's argument that the crane did not stay on the site at its instance and that he could not be held liable for payment of the extended stay is faulty. The purchase order that caused the crane 's delivery at the site is not disputed. The hire was for a specified period of time, which is common cause. It was the defendant's duty to

either return the crane on the expiration of that period or to give the plaintiff written notice of cancellation of the agreement. There can be no other finding other than that it was at that site during the extended period at the instance of the defendant. The defendant cannot escape liability based on its witness' evidence in claim A.

[36] The plaintiff is required to establish by evidence on a preponderance of probabilities that it has delivered the cranes and performed work at the site at the instance of the plaintiff, that remuneration was payable for the work done with the cranes, the time of performance and that the defendant failed to pay as agreed.

[37] On the issue of Lion Smelter, Glencore, Cleveland and time sheets, it is correct, as argued by the plaintiff, that the defendant's witness kept on chopping and changing his version during cross-examination. It is further correct that his manner of answering questions put to him necessitated follow up questions from the Court. This was done in order for the court to find out what the defendant's defence was really about.

[38] Mr Makua denied that the defendant is liable to pay for the stay of the cranes beyond the period stated in the purchase order. He however admits that in terms of the agreement, the defendant would be liable if it fails to terminate the agreement in writing or to return the crane. Counsel for the defendant contends that the clause will be applicable only in instances where the defendant is the hirer and that in this case evidence shows otherwise. It is, according to

counsel, Lion Smelter and Cleveland who, as customers, should pay. This contention is not supported by the evidence. Although it was put to the plaintiff's witness during cross-examination that the defendant will deny that it was the customer, Mr Makua agreed during cross-examination that the purchase order number was that of the defendant and further that the entry that the crane was rented for an hour was erroneous as it was required for a period longer than an hour.

[39] Counsel for the defendant contends that the plaintiff bares the onus to prove its case and was expected to call Mr Shabalala and Mabilu to support its version. As already stated, Mr Makua admitted the purchase order in claim A which was signed on its behalf by Mr Mandla Mabilu. It was not necessary to call Mr Mabilu to come and corroborate the plaintiff's version that he was signing as a representative of the defendant in other time sheets as well. This court accepts the explanation that the plaintiff is not relying on the name that appear on the documents as the names of the customer only, but also on the purchase order or job card numbers. It is correct, as submitted by counsel for the defendant that the entries in some of the time sheets are not visible enough, however, Mr Makua was taken through each entry and could not dispute it.

[40] Although Mr Makua admitted that he paid an amount of R500 000.00 towards the defendant's debt, he could not explain to which of the three claims should the amount be allocated.

[41] Mr Makua was not an impressive witness. His version contradicted what was put to the plaintiff's witnesses during cross-examination. He, as stated earlier in this judgment, kept on adapting his version from one question to the other. He is found not to be a credible witness.

[42] I am satisfied that the plaintiff has discharged its onus of proving its claims on a preponderance of probabilities.

[42] In the result I make the following order:

1. The defendant is ordered to make payment to the plaintiff in the following amounts:

1.1 In respect of Claim A R483 138.46 1.2 In respect of Claim 8 R492 565. 00 1.3 In respect of Claim C R14 007.00

2. The defendant shall pay costs of the suit;

3. Interest on the rate agreed upon by parties or on the rate as at the date of the order.

M V SEMENYA

ACTING JUDGE PRESIDENT

LIMPOPO DIVISION.

APPEARANCE: For the plaintiff: ADV: C Cremen Instructed by: LOA INCORPORATED ATTORNEYS For the defendant: ADV DD Mosoma Instructed by: MT RAMABALE ATTORNEYS

Date reserved:

14 March 2023

Date delivered (electronically): 18 July 2023.

[1] (668/2009) (2009) ZASCA 163; (2010) 2 All SA 474 {SCA) )30 November 2009) at (11)

[2] 1968 (3) SA 98 (A) at 102A