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CORPCLO 358 CC t/a Kwa Wicks Group v Macingwane (2556/09) [2013] ZAECGHC 96 (19 September 2013)

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7



IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN


CASE NO: 2556/09


In the matter between:


CORPCLO 358 CC t/a KWA WICKS GROUP ......................................................Plaintiff


And


SABELO MACINGWANE ....................................................................................Defendant



JUDGMENT


DAMBUZA J:


[1] This is a claim by the plaintiff against the defendant for payment of an amount of R235 337.08 in respect of goods sold and delivered. The defendant, in defending this action admits receiving some of the items sold and pleads that he is liable to the plaintiff only in an amount of R 19 600.00.


[2] In the summons the plaintiff originally claimed an amount of R256 865.89. On receipt of the defendant’s appearance to defend the plaintiff filed an application for summary judgment which was opposed by the defendant. The plaintiff then withdrew its application for summary judgement and agreed to the defendant defending the claim.


[3] In its declaration the plaintiff sets out the amount of its four claims against the defendant as:




Claim No: Item: Amount:

Claim 1 3 merino sheep sold for the (2006) Christmas celebration @ R680.00 per sheep R2 040.00

Claim 2 1 red ox sold on 30 April 2007 R4 800.00

Claim 3 Building material sold to the plaintiff during the period May to July 2007 as per agreement concluded in April 2007 R211 537 .08

Claim 4 3 fat oxen and 20 sheep sold during July 2007 together thereof with delivery cost R37 000.00

_______________ R255 377.08

_______________

[4] It is common cause on the pleadings that the plaintiff paid R20 000.00 of the amount claimed; hence the amount of claim at the start of the trial was accepted to be R235 377.00. The plaintiff further pleads that its claim falls to be reduced by an amount of R3 150, 93, that being an erroneous computer generated interest charge levied on the defendant’s account with the plaintiff, contrary to the agreement between the parties.


[5] In respect of claim 1, it was the evidence of Lyle Wicks who is the Plaintiff’s managing member and the person with whom the defendant concluded the agreements, that the agreement was that he would source the sheep and that the plaintiff would pay the “going price” in respect thereof. He had assumed that payment would be made within reasonable time after the Christmas celebration.


[6] On the other hand, the defendant testified as foreshadowed in his plea, to plaintiff’s declaration that the agreement was that the sheep would be sold to him at R500.00 each, and that payment would be made by him within a reasonable time from the date upon which he would be furnished with “an invoice and statement of account in respect of the purchase (thereof)”. He admitted that the sheep were delivered shortly before Christmas in 2006 as agreed. It is not his case that the sheep delivered were in any way defective or unsatisfactory. Nor is it his case that he paid to the plaintiff such amount as he considered as due in respect of the sheep. His only contention, apart from the dispute relating to the price, is that the summons was issued prematurely as he never received any statement of account or invoice from the plaintiff or Mr Wicks.


[7] The evidence of Mr Wicks was clear and straight forward. Cross-examination did not reveal any inconsistencies or discrepancy. There is no submission by or on behalf of the defendant that Mr Wicks or any of the plaintiff’s three witnesses were unreliable witnesses. The defendant on the other hand, was an extremely poor witness. I agree that, as put to him during cross-examination, he has very little or no regard for the oath that he took prior to giving evidence. On numerous occasions during evidence, particularly during cross examination, it became clear that his responses were patently untrue. Apart from the fact that his version does not make sense, the evidence given by him in court to support his case rings hollow and, is by and large, obviously untrue.


[8] I say the defendant’s version makes no sense because he does not deny the agreements. He admits having received most of the items which form the subject matter of the agreements in question. It is not in dispute that he derived value from the items received. However he insists that almost six years after receiving the goods, he is not liable to pay for them as he has received no invoices in respect thereof.


[9] It was Mr Wick’s evidence the he faxed an invoice relating to claims 1 and 2 to a fax number which he had obtained from the defendant. The defendant testified that the fax number belonged to one of his business partners and that he gave it to Mr Wicks so that Mr Wicks would know him “better” by being familiar with his business associates. But it was common cause that the defendant and Mr Wicks grew up together in Engcobo and that their families enjoyed a close relationship, to the extent that in their adult life the defendant frequently visited Mr Wicks at his business in Maclear. I am satisfied that, contrary to the denial by the defendant, he did receive the invoice. In any event, even if he had not received it in April 2007, I am satisfied that the amount due in respect of claims 1 and 2 was communicated to him, as early as January 2007 as Mr Wicks testified.


[10] My view is that the defendant’s “defence” to all the plaintiff’s claims cannot succeed. In respect of claim 1, the defendant’s version is that he approached Mr Wicks about the sheep and requested him to sell him the sheep. In the same breath he insisted that it was more convenient and cost effective for him to buy the sheep at Engcobo which is nearer his home in Clarkbury. There is no explanation as to why he would approach Mr Wicks if, for all intents and purposes, buying the sheep at Engcobo was the best option. The defendant’s case was that at Engcobo sheep were sold at R500 per sheep and that Mr Wicks agreed that he would “match” the Engcobo price.


[11] From the evidence I can only conclude that after the sheep were delivered to the defendant in December 2006, the relationship between the parties remained “healthy” to the extent that, in April 2007, although the purchase price for the December agreement remained unpaid, Mr Wicks agreed to further supply the plaintiff with an ox.


[12] I cannot accept that the price for the December agreement was never discussed after delivery of the sheep. And it is my view that the reason why the friendship between Mr Wicks and the defendant endured as long as it did is that the agreement was that the defendant would pay the purchase price as set by Mr Wicks. Had there been disagreement in this regard the friendship would have been so strained that the further three transactions would not have happened.


[13] It was in April 2007, subsequent to supplying the ox that Mr Wicks issued an invoice. The invoice relates to both the December and the April transactions. And even after the invoice was issued and faxed to the defendant, the friendship remained unshaken.


[14] During May, June and July 2007 the April invoice remained unpaid and the parties concluded two further agreements in terms of which the defendant was supplied with building material and further livestock (claims 3 and 4). It was common knowledge between the defendant and Mr Wicks that the building material (claim 3) was to be used for renovations to the defendant’s home in Clarkbury in preparation for the (umgidi) traditional ceremony that was to be held in July 2008 for the defendant’s son. Although the moneys due in respect of the goods supplied remained unpaid by the defendant, Mr Wicks attended the ceremony.


[15] As I have stated, it was the defendant’s evidence that he never received the April invoice although he did not dispute that it was faxed to the fax number that he had given to Mr Wicks. He also never bothered to take the initiative in settling his debt, at least, in as far as the items he admits to having received and the extent to which he considered himself to be liable to the plaintiff or Mr Wicks. An admission is made in the plea that the defendant admits liability in respect of two of the three oxen and for the 20 sheep which are the subject of claim 4. The amount admitted is calculated by the defendants at R4 800.00 per ox and R500 per sheep (hence the admitted amount of R19 600.00).


[16] Another admission by the defendant, both in his plea and in evidence is that he did receive building material from the plaintiff for an amount of R108 934.00. This, according to the defendant is for building material delivered at the defendant’s Clarkbury home and received by the defendant’s brother, LITHA MACINGWANE. His response, on being asked during cross-examination why he had only paid R20 000.00 towards the claim, was that he did so to demonstrate good faith on his part. But this does not make sense as, on his own case, he is liable for R19 600. 00, R108 934.00, (the amounts of R500.00 for each of the sheep received and the R4 800.00 for each of the oxen).


[17] The summons in this matter was issued in June 2009 and the defendant pleaded thereto in June 2010. Until December 2012 the defendant (in his plea) denied the agreements which are the subject matter of these proceedings. In December 2012 a Notice of intention to amend the plea was filed in which the plaintiff admitted the agreements for the first time. When questioned about this during cross examination, he blamed his previous attorneys for the plea denying any knowledge of the agreements. It is improbable that the attorneys would have deviated from the defendant’s instructions to the extent suggested by the defendant. I can find no evidence to support the suggestion that the plea in which the defendant disputed the agreements was contrary to the defendant’s instructions to his attorneys. On his own version, the defendant is an experienced business person and I am satisfied that his level of sophistication is such that he would have had no difficulty in giving clear instructions to his attorneys as to what his case is for purposes of drafting a plea. I can only conclude that he was intent on untruthfully disputing the agreements until it dawned on him that the denial was unsustainable.


[18] Part of the defendants’ case was that the plaintiff’s case was fatally flawed as the plaintiff failed to comply with the provisions of the National Credit Act 34, of 2005 the (NCA). At the start of the trial Mr Sandi who appeared on behalf of the defendant informed me that the defendant was withdrawing this defence. He was, however questioned on this (withdrawn) plea at the trial as it had been part of his opposition to the application for summary judgment. The defendant testified at the trial that no agreement was reached between Mr Wicks and himself regarding interest on overdue amounts due by him. He was questioned during cross examination on the contents of the affidavit which he filed in opposition to the plaintiff’s application for summary judgment, in which he alleged that the agreement’s were subject to the provisions of the NCA as there was an agreement between plaintiff and himself that interest would be payable on overdue payments. His response was that overdue payment was explained to him (by his erstwhile attorneys) as “deadlock”. This is an illustration of the poor quality of the defendant’s evidence.


[19] The defendant also sought to dispute, in evidence, that he received building material from “Engcobo Build It” as arranged by Mr Wicks. The evidence on behalf of the plaintiff was that Mr Wicks arranged that some of the building material supplied to the defendant be delivered by Build It Engobo, for convenience, as Build It Engobo was closer to the defendant’s Clarkbury home. The plaintiff paid Build It Engobo and was therefore entitled to payment from the defendant. The defendant disputed, in evidence, that his brother LITHA placed orders for building material directly with Build It, Engobo. However Litha did not testify at the trial. On the other hand the defendant had admitted in his plea that building material was received at his Clarkbury home from Build It, Engcobo. The defendant could not explain himself out of this contradiction during cross-examination.

[20] Evidence was led of Barney Durant, the transport manger at Engcobo Build It and Mbuyiseli Mqikela, a driver for Build It Engcobo. They testified that building material was delivered to the defendant’s Clarkbury home from Build It Engobo. The evidence of these witnesses was not criticized and I am satisfied that they were honest witnesses. Mqikela’s evidence was that the building material would be received by various people present at the defendant’s home, including the builders that were renovating the home. When it was put to him that the defendant’s instructions were that building material should only be received by Litha, he responded that it was the practice at Build It Engobo that before delivery of goods was made a phone call would be made to the person who purchased the goods to ascertain whether there would be a person to receive the goods at the home of the buyer. This practice was put in place because they deliver to rural areas some of which are situated very far from their shop. The practice was aimed at avoiding delivery waste of time and fuel. I cannot find any reason why the same practice would not have been observed in respect of the goods bought by the defendant and I am satisfied that either the defendant himself or Litha authorized delivery and receipt by whoever would be at the defendant’s home when the goods were delivered.


[21] Evidence was also led of William Nqunqa. His evidence was that he personally delivered the 3 oxen and 20 sheep (claim 4) to the plaintiff’s home. Ngunqa testified sincerely and his evidence contains detail which he could not have thought of if he was fabricating, including the fact that the defendant gave him a bottle of brandy for his efforts; that he gave the permit that he had in his possession for the livestock to the defendant; and that one of the oxen had to be killed on his truck because of wild behaviour. Of most relevance in his evidence was that 3 oxen were delivered to the plaintiff’s home as opposed to the plaintiff’s allegation that he received only 2 oxen.


[22] Having considered all this evidence I am satisfied that the plaintiff has proved its case and accordingly grant payment as follows:


  1. Payment of R235 377.08;

  2. Interest on R235 377.08 calculated at the legal rate from the 31st of July 2007 to date of payment;

  3. Costs of suit together with interest thereon calculated at the legal rate from a date fourteen days after taxation to date of payment.






















______________________

N DAMBUZA

Judge of the High Court



















Appearances:



Counsel for the plaintiff: Adv SH Cole

GRAHAMSTOWN


Instructed by: Whitesides Attorneys

GRAHAMSTOWN



Counsel for the defendant: Adv N Sandi

GRAHAMSTOWN


Instructed by: Knowles Husain Lindsay Inc

c/o NN Dullabh & Company

GRAHAMSTOWN


Date Heard: 21 June 2013


Date Delivered: 19 September 2013