IN THE HIGH COURT OF ESWATINI
JUDGMENT
In the matter Between: Case No. 109/18
PANGOLINE INVESTMENTS (PTY) LTD Plaintiff
And
BAMBANANI MLIBA FARMERS Defendant
LIMITED (PTY) LTD
Neutral citation : Pangoline Investments (Pty) Limited v Bambanani Mliba
Farmers Limited (Pty) Limited (109/18) [2018] SZHC 240
(5th March, 2019)
Coram : M. Dlamini J
Heard : 10th December, 2018
Delivered : 5th March, 2019
Contract : The contention by defendant that they subsequently paid
plaintiff by drawing two cheques in the name of Dumisani is untenable in law. They, for all intent and purpose, remain indebted to the plaintiff by reason that plaintiff is a legal person distinct from Dumisani. In the result, I find that defendant did not pay plaintiff. They, for all intent and purpose, remain indebted to the plaintiff by reason that plaintiff is a legal person distinct from Dumisani.
Summary: The plaintiff claims the sum of E280 161.84 as due and owing for the supply
of irrigation material and servicing irrigation equipment at the instance of defendant. The defendant disputes any sum due and owing. It asserts that it paid plaintiff the sum of E133 500 by bank cheque as full and final settlement.
The Parties
[1] Both the plaintiff and the defendant are companies duly incorporated and registered in terms of the company laws of the Kingdom. They have their principal place of business at Tshaneni area in the Lubombo region.
The Parties’ contentions
[2] The plaintiff alleges that in September 2017 at Tshaneni, it concluded a verbal agreement with the defendant. The plaintiff was represented by Dumisa Vilakati while defendant Senteni Sibiya. Plaintiff was to supply irrigation material and render repairs to the existing irrigation plants. Defendant would pay the plaintiff for such services upon invoices submitted by it. Plaintiff discharged its side of the bargain but defendant failed. The sum due was E280 161.84.
Defendant
[3] In its plea, the defendant disputes the amount reflected in the invoices. It states that the parties had agreed that the entire costs of servicing the irrigation equipment would be E58 538.16 inclusive of value added tax. It further states that the total amount due for repairs and supply of irrigation equipment agreed upon was the sum of E133 500.00. This amount was paid to plaintiff’s director as per his request by means of a bank guarantee cheque. There is therefore no sum due and owing by defendant.
Oral evidence
[4] Dumisa France Vilakati (Dumisa) gave evidence on behalf of plaintiff. He identified himself as one of the directors of plaintiff. He testified that plaintiff supplies irrigation material and services irrigation systems such as pivots. It also sells manure. Defendant was plaintiff’s client. He received a call from defendant inviting them to submit a quotation for servicing centre pivots.
[5] He enquired whether the defendant required a minor or a general services and when last a service was done. Defendant said that it last did a major service three years ago. Plaintiff opined that a major service was needed. Plaintiff submitted the quotation. On September 2017 defendant called plaintiff to collect a purchase order. It reflected a major service for two centre pivots and a long list of irrigation material to be supplied. On 10th September, he commenced work on behalf of plaintiff. He completed it on 15th September. On Monday, 18th September, he submitted a tax invoice for the services rendered in respect of servicing the two centre pivots and supplying the irrigation materials. Defendant advised plaintiff to expect payment at the end of September, 2017.
[6] At all material times he was dealing with Mrs. Senteni Sibiya and six others
who were board members. Plaintiff expected payment to be either in cash or be deposited into the plaintiff’s bank account which was reflected in the tax invoice. Plaintiff did not receive any payment. He went to the defendant’s offices for a follow up. He was told that defendant did not have money in its account and he should wait. At the end of the year 2017, he went to see the defendant’s board and bade them farewell. The sum due was E280 161.84. I shall deal with Dumisani’s cross-examination later in this judgement.
[7] The next witness on behalf of plaintiff was Mcitfwa Philemon Magagula (Mcitfwa). He testified under oath. He was at the time of the work given to plaintiff, the deputy chair. He knew Dumisani who came to defendant’s offices and was hired to do some work of servicing pivots. Dumisani did the work which summed up to E200 000. However, plaintiff was never paid for the work done. They, as heard members left office in 2018 and plaintiff had not been paid. Mcitfwa was cross-examined. He was asked several times if he recalled that plaintiff was paid. He was consistent with his answer that plaintiff was not paid. The plaintiff then closed its case.
[8] The defendant called Senteni Sibiya on oath. She was the chairperson of defendant since 2015 to November 2017. She narrated how plaintiff approached them requesting for work. They gave him work. The invoice submitted for work done was E280 000. Plaintiff was paid the sum of E133 500. Thereafter he came demanding the balance. Plaintiff gave her committee the sum of E7000 after paying him E133 500 as a token of appreciation. She was cross-examined and I shall refer to it later.
[9] The second witness on behalf of defendant was Gabsile Nokwanda Dlamini. Under oath she described herself as the clerk for the defendant. She corroborated all the witnesses that plaintiff received work from defendant. After he had completed the work, plaintiff came for payment. The board instructed her to make a payment voucher. However, defendant did not have the full amount. Senteni informed the board that plaintiff had asked that the payment be made into his personal account. She drove Senteni and Dumisani to the bank. At the bank, they gave Dumisani two cheques totalling E133 000. Thereafter she left Dumisani and Senteni. She did not know what they discussed thereafter.
Determination
[10] It is common cause that the plaintiff, having been given some work to do, mainly of servicing defendant’s irrigation plant and supplying irrigation implements, duly discharged it. He then invoiced defendant for the services rendered and irrigation equipment delivered. Dumisani on behalf of plaintiff was cross-examined as follows:
Mr. B.G. Mdluli : “You agree that you have not told the court that you were paid the sum of E33 000 and E100 000 on 15th and you cashed the cheques on the very same day?”
Dumisani : “Yes. Why I did not include this evidence is
because it does not have any relationship with the matter before court.”
Mr.B.G.Mdluli : “What was this payment for?”
Dumisani : “As I was at the premises or fields of
defendant, I received a call from Senteni Sibiya, chairperson of the board with the account’s clerk Gabsile Dlamini. They were at Swazi bank at Simunye and the time was 3:20 p.m. and the bank was about to close at 3:30 p.m. They said they were requesting me to cash the two cheques into my account and give them the cash there and there. Senteni Sibiya and Gabsile received the money as it was except for bank charges. I then left.”
Mr.B.G.Mndluli : “You are quite aware that this matter is still
pending before Buhleni police station.?”
Dumisani : “I do not know that. The police have not
called me on this. It has been a year since”
Mr.B.G. Mdluli : “You are not aware that the matter is part
of the E3 million fraud and the sum of E133 500 is part of the E3 million fraud”
Dumisani : “I am not aware of that”
[11] He was later cross-examined:
Mr.B.G. Mdluli : “You agree that as a result of payment it was as per your instructions that you needed cash immediately. This was part payment.”
Dumisani : “It was not as invoices were not furnished and I expected payment as of 30th September.”
Mr.B.G.Mdluli : “You are not honest. You said you had to be paid by cash. Evidence will be led that you required E133 500 in order to settle revenue authority.”
Dumisani : “Not true.”
[12] The evidence of Mcitfwa on behalf of plaintiff was simple to corroborate Dumisani’s evidence that plaintiff was not paid for the services rendered and the irrigation system delivered. On the other hand the defendant’s witnesses, Senteni and Gabsile gave evidence that plaintiff was paid by means of two cheques summing E133 000.
Issue
[13] From the above the court’s duty is to ascertain whether the plaintiff was paid the sum due.
Analysis
[14] This matter rests on all fours on a question of law. If a question of fact is considered, it is because law cannot be applied in a vacuum but on a set of fact.
Common cause
[15] It is common cause between the parties that defendant engaged plaintiff to deliver services and irrigation implements to it. Plaintiff duly performed. It is further common cause that two cheques were encashed by Dumisani through his personal account. The correct question for determination under the circumstances of this case is, was plaintiff paid for the services rendered and the irrigation equipment delivered? As already alluded to, the answer lies in the position of the law.
[16] Principles of law: a company
Gibson[1] authored:
“In its primary sense, the word ‘person’ connotes a human being (Nathan’s Estate v Commissioner for Inland Revenue 1948 (3) SA 866 (N) at 882). But in a legal sense, any entity that can acquire rights and duties is considered a ‘person’. Although a company is a purely legal conception and it has no physical existence but exists only in contemplation of law, it such an entity (Madrassa Anjuman Islamia v Johannesburg Municipal Council 1919 AD 439). It is a legal entirely distinct from the members who compose it (Dadoo Ltd v Krugersdorp Municipal Council (supra) at 550). A company has ‘neither body, parts nor passions’, but it can have rights and duties of its own. And such rights and duties do not attach to the members of the company but to the company itself (ibid). A company cannot eat or sleep, but it can keep house and do business (De Beers Consolidated Mines Ltd v Howe [1906] AC 455 (HL), cited in Estate Kootcher v Commissioner for Inland Revenue 1941 AD 256).”
[17] The learned author further highlighted:
“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are….A company [has] a legal existence with…rights and liabilities of its own…’(Solomon v Solomon & Co Ltd[1897] AC 22 (HL) at 30).” (my emphasis)
Case at hand
[18] It is common cause that the plaintiff is a company named Pangolin Investment
(Pty) Ltd. It is common cause as borne out by the evidence adduced by all the witnesses and the two copies of cheques admitted in these proceedings that Dumisani received two cheques sum of E133 000 from defendant. These cheques reflected the drawee as Dumisani and not plaintiff.
[19] Having alluded that plaintiff as a company is a legal personal with its own rights and liability, completely distinct from its members, it cannot in law under the circumstances be said that defendant paid the plaintiff the sum of E133 000. Further, Dumisani cannot in law be held to have a mandate to instruct defendant to pay him in his person instead of plaintiff. The services rendered and the irrigation scheme delivered was work done not by Dumisani, albeit under his hand but by the plaintiff.
[20] The contention by defendant that they subsequently paid plaintiff by drawing two cheques in the name of Dumisani is untenable in law. They, for all intent and purpose, remain indebted to the plaintiff by reason that plaintiff is a legal person distinct from Dumisani. In the result, I find that defendant did not pay plaintiff. The invoices submitted to court were for the total sum of E280 161.84.
[21] There appears to be no issue on the figures as it was submitted during trial that the sum of E133 000 was part payment. Gabsile also testified that plaintiff was owed the sum of E280 000. For the above reasons, it is unnecessary for me to examine the evidence and make a pronouncement on whether Dumisani received the two cheques as part payment for the work done and supply of equipment or encash it for purposes of returning it to Senteni and Gabsile so as to pay defendant casual workers as contended by Dumisani.
Costs
[22] It appears to me that the defendant ought to have excepted to the defendant’s plea. It was unnecessary for the matter to go on a full blown trial therefore. Much time was wasted in this regard. However, for the reason that defendant in its plea challenged the amount on the invoice as well only to admit in evidence that the sum due was E280 000, I shall grant plaintiff full costs of suit.
[23] In the final analysis, I enter the following orders:
24.1 Plaintiff cause of action succeeds;
24.2 Defendant is ordered to pay plaintiff the following:
24.2.1 E280 161.84;
24.2.2 Interest at the rate of 9% per annum atempore morae;
24.3 Costs of suit.
______________________
M. DLAMINI J
For the Plaintiff : I. Du-Pont of Dunseith Attorneys
For the Defendant : B. Mdluli of Bongani G. Mdluli & Associates
[1] South African Mercantile and Company law, 8th ED, Juta, page 259
