NHL Tyre & Tire (Pty) Ltd t/a Trentyre Namibia v Tanzler (HC-MD-CIV-ACT-CON-2022/03811) [2024] NAHCMD 356 (28 June 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-CIV-ACT-CON-2022/03811

In the matter between:

NHL TYRE & TIRE (PTY) LTD t/a TRENTYRE NAMIBIA PLAINTIFF

and

CHRISTIAAN TANZLER DEFENDANT

Neutral citation: NHL Tyre & Tire (Pty) Ltd t/a Trentyre Namibia v Tanzler (HC-MD-CIV-ACT-CON-2022/03811) [2024] NAHCMD 356 (28 June 2024)

Coram: USIKU J

Heard: 5 & 8 February 2024 and 11 March 2024

Delivered: 28 June 2024

Flynote: Contract – Defendant alleging that he signed an acknowledgment of debt at the time when blank spaces on a printed form were not filled in – A person who signs an incomplete agreement must be taken to have intended, in the absence of allegations to the contrary, that the agreement shall be made complete by filling in the blank spaces – The court holds defendant bound by the terms of the acknowledgment of debt.

Summary: The defendant executed an acknowledgment of debt in favour of the plaintiff in the amount of N$172 054.39. He denied being bound by the terms of the instrument on the basis that when he signed the instrument, it had blank spaces, and the amount appearing thereon was inserted by the plaintiff at the later stage.

Held that on the evidence presented before court, the amount of N$172 054.39 was already inserted on the instrument when the defendant signed it.

Held further that even if the instrument had bank spaces when the defendant signed, the defendant is still bound by its terms on account that he must be taken to have intended, in the absence of allegations to the contrary, that instrument shall be made complete by filling in the bank spaces.

ORDER

1. The court grants the judgment in favour of the plaintiff against the defendant in the following terms:

(a) payment in the amount of N$172 054.39;

(b) interest calculated on the abovementioned amount at the rate of 20% per annum as from 28 July 2022 to the date of final payment; and;

(c) costs of suit.

2. The matter is removed from the roll and is regarded finalised.

JUDGMENT

USIKU J:

Introduction

[1] In this matter the plaintiff instituted action against the defendant for:

(a) payment in the amount of N$172 054.39;

(b) interest on the aforesaid amount calculated at the rate of 20% p.a. from 28 July 2022 until the date of final payment; and;

(c) costs of suit.

Background

[2] The plaintiff carries on the business of selling tyres. The defendant was employed by the plaintiff as a salesman at the plaintiff’s Gobabis branch, until he was dismissed from the employment on 29 July 2022.

[3] It is alleged in the particulars of claim that, on 22 July 2022, the defendant executed an acknowledgment of debt in favour of the plaintiff, in terms of which the defendant acknowledged being indebted to the plaintiff in the amount of N$172 054.39, together with interest thereon, arising from ‘stock loss’. It is further alleged that the defendant had orally undertaken to repay the aforesaid amount to the plaintiff by 19 August 2022 but had failed to honour that undertaking.

[4] The acknowledgment of debt in question (Annexure TN1 to the particulars of claim) is in a standard printed form, headed with the plaintiff’s name and with blank spaces provided for writing in certain particulars such as the name of the debtor, the amount of the indebtedness and reason for the indebtedness.

[5] In the present case the acknowledgement of debt has written in the relevant blank spaces, the name of the debtor, the defendant herein, the amount of N$172 054.39 as the amount of indebtedness and that the indebtedness arises from stock loss. It was executed on 27 July 2022 and is signed by the defendant and by a representative of the plaintiff, in the presence of one witness.

[6] In his plea, the defendant admits having signed the acknowledgment of debt. However, he avers that at the time of signing it, there was no amount written on it, as the representative of the plaintiff was unable to write the amount at that time because the investigation on the exact amount was on-going.

[7] In support of its claim, the plaintiff called three witnesses, namely Ryno Nolan Swartz (‘Mr Swartz’), Hans Nanub (‘Mr Nanub’) and Henrico du Plessis (‘Mr du Plessis’)

[8] The defendant gave evidence and called no other witnesses.

Plaintiff’s evidence

[9] Mr Swartz testified that, on 27 July 2022, at Gobabis, he completed the acknowledgment of debt from with details appearing thereon, in the presence of the defendant. He inserted the amount of N$172 054.39 on the form and deleted the parts that were not applicable. The defendant thereafter signed the acknowledgment of debt and Mr Nanub signed it as a witness. After all parties have signed, Mr Nanub made copies of the acknowledgment of debt and notice of disciplinary hearing and handed them to the defendant. Thereafter, the defendant left as he was by then already on suspension as from 22 July 2022.

[10] In his testimony, Mr Nanub confirmed that:

(a) he signed the acknowledgment of debt as a witness, in the presence of the defendant and Mr Swartz;

(b) the amount of N$172 054.39 was already inserted thereon, when he signed; and;

(c) he made copies of the acknowledgment of debt and the notice of disciplinary hearing and handed them to the defendant.

[11] Mr du Plessis testified that he served as the chairperson at the defendant’s internal disciplinary hearing held on 29 July 2022. At the disciplinary hearing, the defendant confirmed indebtedness to the plaintiff in the amount of N$172 054.39 and undertook to repay that amount to the plaintiff on or before 19 August 2022.

Defendant’s evidence

[12] In his evidence, the defendant testified that he signed the acknowledgment of debt on 27 July 2022. According to him, at the time of signing, Mr Swartz informed him that he does not know the value of the stock loss because the matter was still under investigation. The defendant asserted that Mr Swartz informed him that the specific value of the stock loss will only be inserted once the investigation is complete.

[13] The defendant further testified that, a week later Mr Swartz called him for a meeting in his office and informed him that the stock loss amount was N$172 054.39

[14] The defendant underlined that he accepts liability for the stock loss but denies the amount claimed by the plaintiff. The defendant further denies having undertaken to repay N$172 054.39 on or before 19 August 2022, and denies having received from Mr Nanub copies of the singed acknowledgment of debt on 27 July 2022.

Analysis

[15] In the present matter, the main issue in dispute is whether the acknowledgment of debt had blank spaces on it when the defendant signed it. Put differently, the main issue in dispute is whether the amount of N$172 054.39 was inserted on the acknowledgment of debt after the defendant had signed the document.

[16] The evidence by Mr Swartz is that he drove to Gobabis from Windhoek on 26 July 2022 to conduct an in-depth stock-take and investigation into alleged stock losses. Having conducted the investigation, he found that a total amount of N$172 054.39 was due and payable by the defendant to the plaintiff. On 27 July 2022, having finalised the investigation he proceeded to complete an acknowledgment of debt, in the presence of the defendant, who signed the acknowledgment of debt.

[17] The disciplinary hearing was held two days later, on 29 July 2022. The evidence by the defendant is that a copy of the acknowledgment of debt with the amount of N$172 054.39 inserted, was delivered to him at his house by Mr Nanub, after two weeks from the date of the signing of the acknowledgment of debt.

[18] Under cross-examination, the defendant admitted that he was arrested by the police on or before the 29 July 2022 and was only released from detention on or about October 2022 or beginning of November 2022.

[19] From the evidence, it highly improbable that Mr Nanub delivered the acknowledgment of debt to the defendant at his house, two weeks after his meeting with Mr Swartz. By that time, the defendant, by his own admission, was already in police custody.

[20] Also of importance, is that the defendant does not explain why he did not fill in the acknowledgment of debt a specific amount that he genuinely believed represented the full extent of his liability to the plaintiff.

[21] In light of the aforegoing, I find that the version of the plaintiff that the defendant signed the acknowledgment of debt when it was fully completed, is more probable than the one put forth by the defendant. Accordingly, I find that the amount in question was already filled in when the defendant signed the acknowledgment of debt and therefore the defendant is bound by the terms of the acknowledgment of debt.

[22] In any event, even if the acknowledgment of debt had blank spaces when the defendant signed it, the defendant would still be bound by the terms of the acknowledgment of debt. It is trite law that, where a party signs an agreement in blank and leaves it to the other party to complete the rest, that party cannot turn around and claim that he is not bound by its terms. In the absence of allegations of misrepresentation, fraud, duress etc, the signatory is bound by the terms of such agreement.¹

[23] In conclusion, the plaintiff’s claim succeeds.

[24] In regard to the issue costs, I am of the view that the general principle that costs follow the result must find application.

[25] In the result, I make the following order:

1. The court grants the judgment in favour of the plaintiff against the defendant in the following terms:

(a) payment in the amount of N$172 054.39;

(b) interest calculated on the abovementioned amount at the rate of 20% per annum as from 28 July 2022 to the date of final payment; and;

(c) costs of suit.

2. The matter is removed from the roll and is regarded finalised.

----------------------------------

B USIKU

Judge

APPEARANCES

Plaintiff: S Horn
Of Theunissen, Louw & Partners, Windhoek

Defendant: T Nanhapo

Of T Nanhapo Incorporated, Windhoek