Namboer Auctioneers CC V Louw (I 1766-2014) 2015 NAHCMD 130 (26 May 2015)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1766/2014

In the matter between:

NAMBOER AUCTIONEERS CC FIRST PLAINTIFF

NAMBOER REHOBOTH AUCTIONEERS CC SECOND PLAINTIFF

NAMBOER WITVLEI AUCTIONEERS CC AND TRADERS CC THIRD PLAINTIFF

and

ELVIRA MADELEINE LOUW FIRST DEFENDANT

MM LOUW SECOND DEFENDANT

Neutral citation:Namboer Auctioneers CCv Louw(I 1766-2014) [2015]NAHCMD 130 (26 May 2015)

Coram:MILLER AJ

Heard:18– 22May 2015

Delivered:26 May 2015

ORDER

I therefore have come to the conclusion that the plaintiffs have succeeded in establishing their claims against the first defendant in the following amounts.

(a) The first plaintiff in the sum of N$92904.17, the second plaintiff the sum of N$ 29366.10 and the third plaintiff the sum of N$ 36148.50. I accordingly grant judgment against the first defendant against each of the plaintiff in the amount mentioned above.

(b)The plaintiffs claim against the second defendant is dismissed. I turn to the question of costs. As far as the first defendant is concerned, I am of the view that costs should follow the result. In the result the first defendant is ordered to pay the plaintiffs costs on the basis of the costs of one instructing and one instructed counsel. As far as the second defendant is concerned, the plaintiffs failed to establish their claims against the second defendant. I would ordinarily have ordered the plaintiffs too jointly and severally to pay the second defendant’s costs.

(c)However in view of the fact that her defence was for reasons best known to the second defendant’s not disclosed until the witness statements were filed, and only subsequently cured by consequential amendment to the plea, I am of the view that the second defendant should not be entitled to her full costs.

(d)As far as the second defendant is concerned, I will order the plaintiffs to jointly and severally to pay the second defendant’s costs calculated from the date upon which the second defendant’s witness statement was filed.

JUDGMENT

MILLER, AJ:

[1]In this matter the three Plaintiffs instituted action against the first defendant as well as the second defendant. The cause of action against the first defendant is that during the course and scope of her employment as an accountant with the plaintiffs she misappropriated certain monies by drawing cheques of the various plaintiffs in her own favour which she then deposited into her bank account. As far as the first and second defendants are concerned, there is a further claim for payment in the amount of N$30000.00. The cause of action against the first defendant is that she likewise drew this cheque, unlawfully so to speak and deposited the cheque into the account of the second defendant.

[2]During the course of the trial, it became apparent that not all the cheques which were deposited were in fact misappropriated. It transpired in further investigation that some of the cheques had been legitimately issued and banked by the first defendant. The upshot of all that is the plaintiffs claim against the first defendant is for payment in the sum of N$128 0413.97. So far as the second claim against first and second defendants is concerned the claim remain for payment the sum of N$30000.00.

[3]Of the amounts claimed, ninety two thousand nine hundred and four dollars and seventeen cents was drawn on the account of the first plaintiff. On the bank account of the second plaintiff an amount of N$ 29360.10 was drawn. On the bank account of the third plaintiff the sum of N$36138.50. The defendants initially plea to the plaintiff’s particulars of claim was a little more than a bare denial of the allegations to which plaintiff was put to the proof thereof. It was only at a later stage during the proceedings at the time when statements were filed that the real defence raised came to the fore for the first time. In that witness statement the first defendant alleges that the amounts claimed were in fact legitimate payments of commission due to her which she had agreed with the plaintiff. The second defendant pleaded that she was not aware of the fact that the N$ 30000.00 dollars deposited into her bank account were the proceeds of and unlawful activities on the part of the first defendant.

[4]During the course of the trial, an amended plea of the first and second defendants was filed without any objection by the plaintiffs ordinarily. I could not have been inclined to allow the amendment at that late stage, but in view of the fact that there was no opposition thereto, the plea was accordingly amended. The issues between the parties are merrily factual and depends essentially on the evidence of Mr Coetzee who testified on behalf of the plaintiffs and the evidence of the first and second defendants. It is so that the evidence of the first defendant and that tendered on behalf of the plaintiffs are mutually destructive. Mr Coetzee was adamant in his testimony that no commission was agreed to or in fact paid by any of the plaintiffs to the first defendant. His evidence is to the effect that when auctions were held by either of the plaintiffs cheques would be signed in advance and left blank to be used if necessary at the auction to make payments and so forth. His evidence further is that at the conclusion of the auction that file together with any blank signed cheques were returned to the first defendant in order for her to do the necessary reconciliation. Those cheques then remained in her possession for as long as it took to complete her work in that regard hereafter the signed blank cheques will be locked up in the safe.

[5]The inference he seems to make is that while the cheques were in possession of the first defendant, she misappropriated some of them for her own purposes. He further testified about certain short message services, messages that were exchange between himself and the first defendant’s one the irregularities had come to light. It is the first defendants’ version that although the messages were correct, she was in dire stress as result of the fact that the plaintiffs had threaten to arrest herself and her mother on charges of theft. It is apparent from the messages exchange that the first defendant in fact admitted to misappropriating salary cheques which in fact later transpired lawfully belong to her.

[6]Very little reliance in my view can be place on the accuracy and reliability of the contents of the short message services. As already indicated the first defendant testified that she agreed with Mr Coetzee that she will receive a commission of 4% on the net proceeds of any auction accruing to either of the plaintiffs. She is at a less to explain why it is now alleged that she had misappropriated the money. In addition the evidence of the first defendant stand alone and it is not supported by any of the objective facts. It is apparent and admitted by the first defendant that in respect of each of the cheques, the counterfoil in respect of that cheque recorded a different ostensibly legitimate transaction and not an entry that it was paid as commission. Her best effort to explain the six instances was simply that she had neglected to do so. The correct completion of the counterfoil is a basic book keeping function and I fail to understand how on each occasion the first defendant could have neglected to correctly conclude the counterfoil. In addition, there is no indication on any of her payslips that any commission was paid to her. One would normally have expected that to be reflected on her payslip.

[7]Furthermore she admitted that none of the commissions she earned were declared to the receiver of revenue in her employment payment certificate. In fact the employment payment certificates for the relevant periods do not reflect any commission being paid to her in spite of space on the form for the payment of commission to be declared. All in all the first defendant was and unsatisfactory witness whose evidence is improbable and not acceptable. As far as the second defendant is concerned, the weight of the probabilities is that she was unaware of the fact that the first defendant has misappropriated any money from her employers. I accept as probable her evidence that she approached the first defendant to assist her financially and that the first defendant agree to do so by saying that she had secures a loan for the amount of N$30000.00 from Mr Coetzee. There is nothing to indicate that that version is improbable or should not be accepted. On the other hand the evidence of Mr Coetzee clearly supported by the objective facts and it has a distinct ring of probability about it.

[8]I therefore have come to the conclusion that the plaintiffs have succeeded in establishing their claims against the first defendant in the following amounts.

(a)The first plaintiff in the sum of N$92904.17, the second plaintiff the sum of N$ 29366.10 and the third plaintiff the sum of N$ 36148.50. I accordingly grant judgment against the first defendant against each of the plaintiff in the amount mentioned above.

(d)As far as the second defendant is concerned, I will order the plaintiffsto jointly and severally to pay the second defendant’s costs calculated from the date upon which the second defendant’s witness statement was filed.

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PJMILLER

Acting Judge

APPEARANCES

PLAINTIFF:Mr Small

Instructed by M B De Klerk. Windhoek

DEFENDANT:Mr Diedericks

Instucted byIsaacks& Associates, Windhoek