Unilever South Africa Home and Personal Care (Pty) Ltd v Naidoo and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Henriques J |
| Judgment Date | 12 May 2023 |
| Citation | 2023 JDR 2339 (KZD) |
| Docket Number | 11609/2006 |
| Court | KwaZulu-Natal Local Division, Durban |
Henriques J:
Introduction
This is an action for damages instituted by the plaintiff against the first and second defendants arising from alleged fraudulent representations made by the defendants as a consequence of which the plaintiff suffered damages in the amount of R16 281 221.77. It is common cause that on 14 November 2011 judgment was granted against the second defendant by default. The trial proceeded as against the first defendant only.
A summary of the pleadings
The plaintiff alleges that for the period 2000 to 2005 one Zenzele Joel Mchunu (Mchunu) who was employed as a fixed assets clerk or financial accounts clerk and the first defendant, Naidoo, who was employed in various capacities including as supervisor of Mchunu, made various representations which were false.
The plaintiff had an agreement with Wesbank who would issue individual auto cards for its fleet motor vehicles which bore a specific registration number. The plaintiff’s employees could utilise the cards only for motor vehicle expenses including petrol, oil, servicing, tyres and certain repairs in respect of the vehicle allocated to them on production of the relevant card. The service providers would claim the amounts of such transactions from Wesbank who in turn would claim reimbursement of the amounts from the plaintiff.
Mchunu was responsible for the issue and controlling of such cards. The plaintiff alleges that the first defendant and Mchunu represented to the plaintiff and / or Wesbank that cards were used in respect of vehicles to which they related, the cards were used in bona fide transactions in respect of goods properly acquired or services rendered in respect of the vehicles and as such Wesbank and the plaintiff became liable to make payment to the service provider for such amounts in respect of
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bona fide transactions. The defendants acted in person or represented each other and such representations were made orally, alternatively in writing.
The plaintiff alleges that the representations were false as the cards were not used in respect of the vehicles to which they related and were not used for bona fide transactions and goods properly acquired and services rendered in respect of vehicles in the plaintiff’s fleet as a consequence of which Wesbank and the plaintiff were not liable to the merchants or service providers for the amounts claimed.
It is on this basis that the defendants’ representations are alleged to be wrongful and intentional and further that they acted in common purpose with each other and Mchunu. The plaintiff alleges that service providers required payment in respect of fictitious and/or unauthorised transactions and as a consequence the plaintiff was liable to make such payments and suffered damages.
In his plea, the first defendant denied each of the allegations contained in the particulars of claim and submitted that he ceased being Mchunu’s supervisor in the course of 2002 and was transferred to another department. He alleges that until such period of time, the scope of his employment included the administration of the Wesbank cards. He denied that the cards were used in mala fide transactions and all transactions which fell within the ambit of his knowledge were genuine and bona fide transactions.
He acted in the execution of his duties and he denies making any representations that were false. He denied that transactions administered or processed by him were as a consequence of the unlawful use of Wesbank cards. To the best of his knowledge the goods were properly acquired and services rendered by the plaintiff as a consequence of the use of such cards. He denied acting in common purpose with anyone and that he in any way misrepresented the position to the plaintiff.
The evidence
At the trial the plaintiff led the evidence of several witnesses being Janet Rous,
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a forensic auditor, Mike Irving a handwriting expert, policemen involved in the execution of the search warrant at the first defendant’s home led by Leonard Sheriff, Aatish Maharaj and Nico Kriegler Wesbank officials and Mchunu a former fellow employee of the first defendant.
As the evidence is already a matter of record only a summary of the evidence follows. Leonard Bradford Sheriff (Sheriff), a member of the South African Police Services (SAPS) testified that in June 2005 he was a senior special investigator attached to the Scorpions (The Directorate of Special Operations, DSO). On 7 June 2005 he executed a search warrant he had obtained in Salseeta Road, Merebank. The search warrants obtained authorised a search and seizure at a number of premises relating to the criminal charges proffered against the first defendant including the home of the first defendant’s parents.
The matter related to garage cards issued by Wesbank allegedly unlawfully used by the first defendant and others to the detriment of the Unilever, the plaintiff. He and a number of other members of SAPS were present, namely Sergeant Henry Ngema, special investigators Meera Ramdeen and Wellington Mbokazi as well as Janet Rous and Nico Kriegler a representative of Wesbank,.
Sheriff testified that he was responsible for overseeing the search of the various premises and Mbokazi was responsible for preparing a receipt and inventory together with Ramdeen who was the scribe. Ramdeen’s role would be to take notes of what transpired during the search and to note any questions put to the first defendant and the answers provided. Rous and Kriegler would have assisted in identifying the necessary documentation to be seized. He confirmed that the address on the search warrant was that of 3[. . .] S[. . .] Road, Merebank which was the address of the first defendant’s father.
Upon their arrival at the premises at 3[. . .] S[. . .] Road they were directed to S[. . .] Road the first defendant’s home. He produced a copy of the search warrant and explained to the first defendant the ramifications thereof. The first defendant was informed of his right to obtain legal representation and the first defendant exercised
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such right, as a consequence of which he had a telephonic discussion with the first defendant’s his legal representative. He also explained to Naidoo’s legal representative the difference in the address reflected on the search warrant and that of the first defendant and informed the legal representative that if he insisted on it, he could return after having the address on the search warrant altered. The first defendant’s legal representative indicated that this was not necessary as the authorisation of the search was a fait accompli.
As a consequence they then proceeded with the search in the presence of the first defendant and his wife. During the course of the search the first defendant’s attorneys arrived, being Vicky Persadh and Leon Pillay who discussed the matter with the first defendant and were present for part of the search. He confirmed that they conducted a search of the entire premises and the inventory reflects what was seized and in which particular room items were seized from.
A briefcase was retrieved from a cupboard in the first defendant’s bedroom which contained garage cards relevant to the matter under investigation as well as speed-point slips. [1] He confirmed that these items seized were eventually inventoried and placed in exhibit bags and handed over to the investigating officer. Every item seized was inventoried in the presence of either the first defendant or his wife. He indicated that apart from the incorrect address referred to on the search warrant the authorisation of the search warrant was legal and so too was the search and seizure which occurred at the first defendant’s premises.
During cross-examination by the first defendant, Sherriff confirmed that a search of Naidoo’s father’s premises did take place and a cheque book was seized from his father’s home. He further disagreed with the suggestion by the first defendant that they only searched one room and that the ramifications of the search warrant were not explained to him. Sherriff confirmed that although he prepared the affidavit to which the inventory was attached, he did not prepare the inventory and could not confirm the contents of such inventory. He confirmed that the search warrant authorised not only members of the DSO to conduct the search, but identified other
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persons who could also be on the premises at the time of the search being conducted and could assist in conducting the search, including members of Wesbank and the firm conducting the forensic audit.
Even though he had no clear recollection of the morning’s events, he did not dispute that he requested the first defendant to shower and meet him at his offices at the Unilever premises for purposes of searching the first defendant’s office and his desk. In summary Sheriff confirmed that they did not have a search warrant for the specific address at S[. . .] Road, Merebank, that members other than the DSO officers assisted in the search, that the premises were searched together with the vehicles found on the premises at the time, and the first defendant’s father’s home at 1[. . .] S[. . .] Road was also searched. He confirmed that he did not specifically recall that foreign currency was seized from the premises. He confirmed that as far as he was aware although attempts were made to challenge search warrant it was not set aside and declared invalid.
Colonel Wellington Mbokazi (Mbokazi), testified that he was a special investigator at DSO and confirmed Sheriff’s evidence that he was part of the team that attended at the first defendant’s home to execute the search warrant. He prepared the inventory of the...
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