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[2011] ZAGPJHC 208
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Excellent Petroleum (Pty) Ltd v Synchrony Logistics (Pty) Ltd t/a Imperial Bulk Services (09/35913) [2011] ZAGPJHC 208 (16 May 2011)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No: 09/35913
Date:
16/05/2011
In
the matter between:
EXCELLENT
PETROLEUM (PTY) LTD (IN LIQUIDATION)
(Represented
by its duly appointed liquidators,
Trevor
Philip Glaum and Peter
Carolus)
…........................................................
Plaintiff
and
SYNCHRONY
LOGISTICS (PTY) LTD
t/a
IMPERIAL BULK
SERVICES
.........................................................................
Defendant
JUDGMENT
___________________________________________________________________
MEYER, J
[1] Excellent Petroleum (Pty)
Ltd (in liquidation) (‘Excellent Petroleum’) has been
placed under winding up on 18 July
2006 by an order of court on the
grounds that it was unable to pay its debts as contemplated in s
344(f) as described in s 345
of the Companies Act.
1
Its winding up is for purposes of s 340(2)(a) read with s 348 of the
Companies Act deemed to have commenced on 3 April 2006.
2
Messrs Trevor Philip Glaum and Peter Carolus are its duly appointed
joint liquidators. They, representing Excellent Petroleum,
seek to
set aside payments adding up to an amount of R4, 860, 000.00, which
Excellent Petroleum made to the defendant company,
3
Synchrony Logistics (Pty) Ltd t/a Imperial Bulk Services
(‘Imperial’), during the period 30 October 2005 until 8
March
2006 as being voidable preferences as contemplated by s 29(1)
of the Insolvency Act
4
read with s 340 of the Companies Act.
[2] It is common cause that
the payments constitute dispositions as defined in s 2 of the
Insolvency Act by Excellent Petroleum
of its property; that such
dispositions were made not more than six months before the winding up
of Excellent Petroleum as contemplated
in s 29(1) of the Insolvency
Act read with s 340 and s 348 of the Companies Act; that the
dispositions were made to the defendant,
Imperial, which was a
creditor of Excellent Petroleum on each occasion; and that the
dispositions had the effect of preferring
Imperial above the other
creditors of Excellent Petroleum.
[3] The plaintiff, in order to
succeed in respect of each payment, must prove that immediately after
the making of each such disposition
the liabilities of Excellent
Petroleum exceeded the value of its assets. In respect of each
payment for which the plaintiff has
established this requirement the
onus
shifts
to Imperial to prove that such disposition was made in the ordinary
course of business without intending to prefer it over
the other
creditors.
5
In order to decide these issues it is necessary to investigate the
facts and circumstances surrounding the payments to Imperial.
[4] Imperial is the logistical
arm of the Imperial group of companies. It is licensed as a
wholesale supplier in petroleum products
and it purchases such
products wholesale from the major producers, such as British
Petroleum, Caltex, and the like. Its purpose
is to secure fuel at
reasonable prices and to ensure a countrywide supply of fuel to the
vehicles used by the Imperial group of
companies, particularly in
smaller towns. Excellent Petroleum was a retail supplier of
petroleum products in
inter
alia
the
town Worcester, Western Cape.
6
[5] Imperial and Excellent
Petroleum concluded an agreement in terms whereof Imperial undertook
to supply petroleum products to
Excellent Petroleum wholesale and
Excellent Petroleum in turn undertook to supply such products on a
retail basis to the Imperial
vehicles at Worcester and to make
available to them truck stop and overnight facilities. The contract
did not prohibit Excellent
Petroleum from supplying petroleum
products to the open market. The contract was subsequently
formalised by the conclusion between
them of a written agreement,
dated 23 September 2004. The written contract
inter
alia
provides
for diesel fuel lubricants to be supplied by Imperial to Excellent
Petroleum at a particular ruling price minus a rebate
and for a 30
day from date of statement credit facility in respect of such sales.
7
Similar provisions governed the supply by Excellent Petroleum of
fuel to Imperial.
[6] Excellent Petroleum did
not always comply with its contractual obligations to Imperial
timeously and in accordance with its
contractual obligations during
the period in which Imperial was its principal supplier. Telephonic
reminders and meetings between
representatives of Excellent Petroleum
and of Imperial aimed at ensuring payment by Excellent Petroleum of
its indebtedness owing
to Imperial under the contract occurred from
time to time. Arrangements outside the contract were agreed upon to
accommodate Excellent
Petroleum and to secure payment to Imperial.
[7] The managing director of
Imperial, Mr Gerald Rudman, testified that the business of Excellent
Petroleum grew exponentially in
a short period of time as a result of
it commencing to supply diesel to fishing fleets in the Western Cape.
His evidence in this
regard is corroborated by the financial
statements of Excellent Petroleum for its financial years ending 30
September 2003 and
30 September 2004, and its draft financial
statement for its financial year ending 30 September 2005. These
statements reflect
sales of R7, 862, 357.00 for the year ending 30
September 2003, of R19, 946, 117.00 for the year ending 30 September
2004, and
of R45, 639, 100.00 for the year ending 30 September 2005.
[8] Imperial, as it was fully
entitled to do in terms of the contract, begun a process of reviewing
the security cover that it had
obtained from Excellent Petroleum,
which appeared to be inadequate in the light of the increased
difference between its much higher
sales of petroleum products to
Excellent Petroleum than its purchases from Excellent Petroleum. It
appears that this process was
abandoned once Imperial had resolved to
discontinue its supply of petroleum products to Excellent Petroleum.
Mr Rudman testified
that the growth in turnover of Excellent
Petroleum caused Imperial to indirectly compete with its suppliers,
the major petroleum
companies. Imperial did not wish this to happen,
but only to secure diesel for the Imperial fleet. It was agreed that
Imperial
would withdraw from being the principal supplier to
Excellent Petroleum with effect from 1 October 2005, since which date
Total
Commercial Services (Pty) Ltd (‘Total’) became
Excellent Petroleum’s principal supplier in the stead of
Imperial.
It was agreed that Imperial would pay Total directly for
the petroleum products that were to be supplied to it by Excellent
Petroleum.
It was also agreed that ‘... the September
month-end must be fully settled...’ between Excellent Petroleum
and Imperial
and that Imperial would relinquish all the securities it
held, except for the personal surety of Mrs Valentyn until the
account
between it and Excellent Petroleum had been settled in full.
[9] The amount due and payable
by Excellent Petroleum to Imperial at the end of September was the
sum of R6, 819, 392.68, and the
amount due and payable by Imperial to
Excellent Petroleum R1, 861, 738.30. Set-off was applied and the
indebtedness owed by Excellent
Petroleum amounted to R4, 957, 654.38.
It appears that Imperial on occasion still supplied Excellent
Petroleum with fuel during
the months October and November 2005,
although, it is common cause, Total became its principal supplier.
The further supply of
fuel by Imperial increased Excellent
Petroleum’s outstanding indebtedness to it by nearly a million
rand. Excellent Petroleum
paid Imperial an amount of R3, 500, 000.00
on 31 October 2005. Mr Rudman testified that it had been the usual
business practice
of Imperial to contact its debtors two or three
days before month end to press for payment. It is reasonable to
accept that Excellent
Petroleum was also telephonically contacted
from time to time and pressed for payment. Excellent Petroleum paid
to Imperial an
amount of R250, 000.00 on 11 November 2005, an amount
of R100, 000.00 on 16 November 2005, an amount of R800, 000.00 on 8
November
2005, and an amount of R50, 000.00 on 23 November 2005.
[10] By letter dated 1
December 2005, a formal demand in terms of s 345(1) of the Companies
Act was made upon Excellent Petroleum
to pay its outstanding
indebtedness to Imperial in the sum of R1, 006, 859.73 plus interest
thereon and the letter concludes by
recording that a copy thereof
would ‘... be forwarded to the surety in respect of this
indebtedness, Ms. Dailina Benita Valentyn.’
Mr Rudman
testified that he participated in the decision to send this letter to
Excellent Petroleum. The purpose of the letter
was to bear pressure
for payment and to ‘frighten’ Mrs Valentyn. This letter
of demand was followed by further payments
from Excellent Petroleum
to Imperial of R20, 000.00 on 22 December 2005, of R100, 000.00 on 9
January 2006, of R20, 000.00 on 9
February 2006, and of R20, 000.00
on 8 March 2006.
[11] A formal demand dated 16
January 2006 in terms of s 345 of the Companies Act was also made on
behalf of Total upon Excellent
Petroleum for payment of an amount of
R2, 205, 975.65. It appears that the amount owing to Total was for
petroleum products purchased
by Excellent Petroleum from it at a
total purchase price of R2, 205, 975.65, which amount in terms of the
agreement between Excellent
Petroleum and Total became due and
payable on 31 December 2005. In reply to this letter of demand the
attorneys for Total were
advised that Excellent Petroleum had sold
its Worcester depot, that transfer thereof would be effected on 31
May 2006, that the
indebtedness owing to Total would be paid out of
the proceeds of that sale, and monthly payments of R50, 000.00 were
offered in
the interim. An application for the winding up of
Excellent Petroleum was issued by Total on 3 April 2006.
8
[12] An amount also remained
outstanding and owing to Imperial. On 16 August 2006, Imperial
issued summons against Mrs Valentyn
as surety in favour of Imperial
for the outstanding indebtedness owed to it by Excellent Petroleum.
An application for the winding
up of Excellent Petroleum was also
issued by Imperial on 18 May 2006.
9
Excellent Petroleum was, however, placed under winding up pursuant
to the earlier application of Total.
[13] I now turn to the first
issue whether or not the plaintiff has discharged the
onus
in proving on a preponderance of probabilities that Excellent
Petroleum’s liabilities exceeded the value of its assets at
the
time of each payment.
10
Mr Johan Andre Gerber, a partner of Greenwoods Chartered Accountants
in Cape Town, gave evidence of an expert nature on the financial
position and solvency of Excellent Petroleum as at 30 September 2003,
30 September 2004, 30 September 2005, and 31 October 2005.
11
The plaintiff, through the evidence and opinions of Mr Gerber,
attempted to establish that Excellent Petroleum was uninterruptedly
insolvent since the year 2003 until the commencement of its winding
up on 3 April 2006, and that its insolvency had been increasing
throughout this period until it was ultimately wound up.
[14] The audited financial
statements in respect of Excellent Petroleum’s financial years
ending 30 September 2003 and 30
September 2004 reflect that the
liabilities of Excellent Petroleum exceeded its assets by R697,
285.00 as at the former date and
by R198, 568.00 as at the latter
one. Based on the entries contained in a creditors’ statement
dated 25 September 2004,
which originates from Imperial, Mr Gerber
expressed the opinion that the financial statements for the year
ending 30 September
2004 understate Excellent Petroleum’s
creditors and its accumulated loss by R180, 000.00. Mr Gerber
accordingly adjusted
the accumulated loss reflected in these
financial statements to an amount of R378, 568.00 (R198, 568.00 +
R180, 000.00).
[15] Only draft financial
statements were prepared for Excellent Petroleum’s financial
year ending 30 September 2005. They
reflect accumulated profits
(retained income) of R3, 681, 674.00. Based on the entries contained
in Excellent Petroleum’s
general ledger, Mr Gerber expressed
the opinion that the draft financial statements overstate its
accumulated profits since the
amount representing its total purchases
for that financial year only account for eleven months. Based on the
entries contained
in a creditors’ statement dated 25 December
2005, which also originates from Imperial, Mr Gerber expressed the
opinion that
the draft financial statements wrongly reflect the
balance in respect of Excellent Petroleum’s creditors. The
draft financial
statements should, in the opinion of Mr Gerber, be
corrected and adjusted to reflect that the liabilities of Excellent
Petroleum
exceeded its assets by R2, 599, 796.00 as at 30 September
2005.
[16] Mr Gerber determined the
financial position of Excellent Petroleum as at 31 October 2005 by
using the draft financial statements
for the year ending 30 September
2005 as adjusted by him as a starting point and by taking into
account Excellent Petroleum’s
transactions for the period 1 –
31 October 2005. Based on certain assumptions and calculations made
by him, Mr Gerber expressed
the opinion that as at 31 October 2005
the liabilities of Excellent Petroleum exceeded its assets by R2,
734, 253.00.
[17] Mr Gerber did not
investigate and was unable to express any opinion on the solvency of
Excellent Petroleum after 31 October
2005. The summary of the
evidence and the reasons for the opinion of Mr Glaum, who is a
qualified chartered accountant and co-liquidator
of Excellent
Petroleum, is admitted as evidence.
12
Mr Glaum is of the opinion that Excellent Petroleum was insolvent at
the date of the commencement of its winding up on 3 April
2006. In
terms of the first liquidation and distribution account its total
assets amounted to R2, 363, 417.29, its total liabilities
to R6, 461,
017.62, and hence a shortfall of assets compared to liabilities of
R4, 097, 600.33. Concurrent claims amounted to
R5, 805, 023.08.
[18] The nature of the
business of Excellent Petroleum was to purchase fuel at wholesale
prices and to resell it at retail prices.
Its income statements
reflect a gross profit (gross income minus total costs of purchases)
equivalent to 9.93% on its costs of
purchases for its financial year
ending 30 September 2003, and of 11.63% for its financial year ending
30 September 2004. Its
draft financial statements reflect a gross
profit percentage of 17.21% for its financial year ending 30
September 2005. In adjusting
the draft financial statements for the
financial year ending 30 September 2005, Mr Gerber left its gross
income amount of R45,
639, 100.00 undisturbed and adjusted its costs
of total purchases amount upwards to an amount of R45,383, 689.00,
leaving it with
a gross profit percentage of only 0.56%.
[19] The average gross profit
percentage for Excellent Petroleum’s financial years ending 30
September 2003 and 30 September
2004 according to its financial
statements was 10.51%. I find Mr Gerber’s determination and
opinion of a dramatic shrinkage
in the gross profit percentage of
Excellent Petroleum to a mere 0.56% for its financial year ending 30
September 2005 without explanation
to be unrealistic and improbable.
Its gross income for its financial year ending September 2005 was
more than double that of its
previous financial year, but yet its
gross profit was a mere R255, 411.00 in terms of the adjustments made
by Mr Gerber as opposed
to its gross profit of about R2,3 mil for its
previous financial year ending 30 September 2004. If the average of
10.51% for its
financial years ending September 2003 and 2004 is
applied to its financial year ending 30 September 2005, it would
translate into
a gross profit of R4, 795, 483.00. Mr Gerber conceded
that even if a lesser gross profit margin is applied in respect of
this
financial year and for the period 1 – 31 October 2005,
Excellent Petroleum would have been solvent as at 30 September 2005
and 31 October 2005. Mr Rudman, who is experienced in the diesel
industry, testified that a 10% - 11% gross profit margin for
the sale
of diesel was reasonable and a relatively low profit margin.
[20] Mr Gerber conceded that
he did not verify the correctness of the audited financial statements
for the financial years ending
30 September 2003 and 30 September
2004. His adjustments to the financial statements for the financial
year ending 30 September
2004 were only based on a creditors’
statement dated 25 September 2004 that originated from Imperial. Mr
Gerber’s
verification of the draft financial statements for the
financial year ending 30 September 2005 was essentially limited to an
inspection
of the ledger for the relevant period and a creditor’s
statement dated 25 December 2005, which originated from Imperial
without
an inspection of the relevant source documents. His
determination of the financial position of Excellent Petroleum for
the period
1 – 31 October 2005 was premised on the draft
financial statements for the financial year ending 30 September 2005
as adjusted
by him as well as an inspection of the ledger, invoices,
creditors’ statements, and bank statements of Excellent
Petroleum.
[21] Mr Gerber’s opinion
that Excellent Petroleum had a trend of growing insolvency since the
year 2003 until the commencement
of its winding up on 3 April 2006
is, in my view, not supported by the evidence presented at this
trial. The evidence does not
permit such an extrapolation of
continuous and growing insolvency. The audited financial statements
of Excellent Petroleum reflect
insolvency as at 30 September 2003 and
30 September 2004, but such insolvency cannot be extended to that
which existed at the time
of its demise since the financial position
of Excellent Petroleum changed dramatically during its financial year
commencing on
1 October 2004 as a result of the exponential growth in
its sales of fuel. I consider solvency on the part of Excellent
Petroleum
as at 30 September 2005 and as at 31 October 2005 on the
evidence presented more probable in the light of Excellent
Petroleum’s
average gross profit percentage of 10.51% for its
financial years ending 30 September 2003 and 30 September 2004, which
percentage
was on the uncontroverted evidence reasonable and a
relatively low profit margin for the sale of fuel, and the dramatic
increase
in its turnover after 30 September 2004. The plaintiff has
accordingly not proved that the liabilities of Excellent Petroleum
exceeded its assets immediately after the making of the payment of
R3, 500, 000.00 on 31 October 2005. Any finding on whether or
not
Excellent Petroleum’s liabilities exceeded its assets
immediately after the making of the payments during the month
November 2005 will be based on mere speculation and dubious
reasoning.
[22] In
assessing where the balance of probabilities lies on a review of the
whole of the evidence, I, however, consider insolvency
on the part of
Excellent Petroleum immediately after each payment that was made
during the period December 2005 until March 2006
to have been
established on a preponderance of probabilities. Continuous and
increasing insolvency of Excellent Petroleum throughout
this period
until the commencement of its winding up on 3 April 2006 is the
ineluctable inference to be drawn from the extent by
which its
liabilities exceeded the value its assets at the time of its winding
up,
13
its inability to have complied with its contractual payment
obligations owed to Imperial and to Total throughout this period, its
neglect to have paid to Imperial the sum of R1, 006, 859.73 plus
interest thereon or to have secured or compounded for it to the
reasonable satisfaction of Imperial within the statutory prescribed
period after service upon it of Imperial’s demand dated
1
December 2005 in terms of s 345(1) of the Companies Act, its payments
of only the sums of R20, 000.00 on 22 December 2005, of
R100, 000.00
on 9 January 2006, of R20, 000.00 on 9 February 2006, and of R20,
000.00 on 8 March 2006 to Imperial following the
statutory demand,
and its neglect to have paid to Total the sum of R2, 205, 975.65 or
to have secured or compounded for it to the
reasonable satisfaction
of Total within the statutory prescribed period after service upon it
of Total’s demand dated 16
January 2006 in terms of s 345(1) of
the Companies Act.
[23] Having
arrived at the foregoing conclusion it is now necessary to consider
whether Imperial has discharged the
onus
of proving
that each payment made to it on 22 December 2005, on 9 January 2006,
on 9 February 2006, and on 8 March 2006 was made
in the ordinary
course of business without intending to prefer it over the other
creditors.
[24] The test whether or not
the dispositions were made ‘in the ordinary course of business’
is concisely thus stated
by Griesel J in
Gore
and others NNO v Shell South Africa (Pty) Ltd
:
14
‘
While it is
clear from the authorities that there can be no comprehensive
definition of the expression, it is equally clear that
the test in
this regard is an objective one. The Court must ask itself whether,
given all the circumstances under which the disposition
was made, it
is in accordance with ordinary business methods followed by solvent
men of business. The transaction must not be
seen in isolation; it
must be considered in the light of all the surrounding circumstances,
including the actions of both parties
to the transaction. The fact
that one of the parties to the transaction was insolvent at the time
is, however, to be excluded
from te circumstances that are
relevant.’
15
[25] In
Cooper and
Another NNO v Merchant Trade Finance Ltd
,
16
Zulman JA said this:
‘
The best
formulation of the test, in my view, is that of De Villiers JP in
Malherbe’s
case, where the learned Judge put the matter succinctly as follows:
‘
... (W)hether
the disposition is in accordance with ordinary business methods and
principles obtaining amongst solvent men of business;
that is to say
a disposition, in order to be in the ordinary course of business,
must be one which would not to the ordinary man
of business appear
anomalous or un-businesslike or surprising.’
17
[26] The
payments under consideration that were made to Imperial were in the
performance of obligations arising from a pre-existing
contract.
Such contract, I accept, is not one which is unusual or
unbusinesslike. Also, payment different from that provided
for in a
contract is not necessarily out of the ordinary course of business.
18
However, a consideration of all the surrounding circumstances and
the actions of both Excellent Petroleum and those of Imperial
to
which I have alluded earlier on in this judgment, and particularly
the sporadic few payments of varying and relatively small
amounts
that were made to Imperial following its s 345(1) of the Companies
Act demand dated 1 December 2005, make each disposition
inevitably
one outside the ordinary course of business. The payments made to
and received by Imperial on 22 December 2005, on
9 January 2006, on 9
February 2006, and on 8 March 2006 were not in accordance with
ordinary business methods followed by solvent
men of business. They,
in my view, would ‘appear anomalous or un-businesslike or
surprising’ to ‘the ordinary
man of business’,
[27] The
general principles applicable to the second leg of the enquiry - an
intention to prefer - were set out by Zulman JA in
the
Cooper
judgment.
19
The relevant principles that may be extracted from that judgment
were summarised as follows by Griesel J in the
Gore
judgment.
20
‘
The Court must
weigh up all the relevant facts and circumstances in order to
determine what, on the probabilities, was the ‘dominant,
operative or effectual intention in substance and in truth’ of
the debtor for making the disposition.
The test with regard to
intention is a subjective one and can only be present if the debtor
actually applied its mind to the matter.
The mere fact that the
debtor who made the disposition does not give evidence does not
ipso
facto
mean
that one must infer that there was an intention to prefer. As far as
inferences are concerned, however, the plaintiff is aided
by the
natural inference that arises where the debtor, knowing that
liquidation is substantially inevitable, selects for payment
out of a
number of creditors one who has no right to such selection. In those
circumstances, the inference from its conduct is
a fair one, namely
that the debtor intended to prefer such creditor above the rest, to
disturb in the creditor’s favour the
proper distribution of its
assets in insolvency.
An intention to prefer
requires that the debtor must, at the time of the disposition, have
been in a position to exercise a free
choice. Thus, where a debtor
pays a creditor out of turn under great pressure, for example to
shield himself from prosecution,
an intention to prefer will not be
proved. It is not any pressure or coercion, however, which will
displace the free will or intention
to prefer, but rather pressure
which is akin to duress or undue influence, or what has been
described in the cases as ‘an
overwhelming sense of imminent
peril’; ‘great pressure’; or even ‘severe
or terrifying pressure’.
21
[28] An
inference from the proved facts of an intention to prefer as far as
the payments on 22 December 2005, on 9 January 2006,
on 9 February
2006, and on 8 March 2006 are concerned, is, in my view, on a balance
of probabilities, the most probable one to
be drawn. It is
established by ineluctable inference that Excellent Petroleum knew
that it was insolvent and that liquidation
was substantially
inevitable on the occasions when it made these payments. It
accordingly follows, in the absence of evidence
to the contrary, that
Excellent Petroleum intended, in making the payments, that Imperial
should benefit above creditors who were
not paid. Moreover, Ms
Valentine had a strong motive to prefer Excellent Petroleum. She was
reminded of her personal surety and
subsequently sued on it.
[29] Finally,
the matter of costs. Counsel, Adv J Muller SC for the plaintiff and
adv PF Rossouw SC for the defendant, did not
deal with the issue of
costs should the plaintiff only be successful in having the payments
that were made during the period December
2005 until March 2006 set
aside. Such payments constitute an amount of R160, 000.00 of the
plaintiff’s claim of R4, 860,
000.00. I accordingly consider
it appropriate to reserve the issue of costs in order to permit the
parties to address me thereon,
either by means of written heads of
argument only or by means of both written heads of argument and oral
address should they so
elect.
[30] In
the result the following order is made:
1. The payment of R20, 000.00
made on 22 December 2005, of R100, 000.00 made on 9 January 2006, of
R20, 000.00 made on 9 February
2006, and of R20, 000.00 made on 8
March 2006 by the plaintiff to the defendant, are hereby set aside in
terms of
s 29(1)
of the
Insolvency Act 24 of 1936
read with s 340 of
the Companies Act 61 of 1973.
2. The defendant is ordered to
pay to the plaintiff the sum of R160, 000.00 plus interest thereon at
the rate of 15,5% per annum
from date of service of the summons to
the date of payment in full.
3. The costs of suit are
reserved for determination at a date and time to be arranged with my
clerk.
4. The parties are ordered to
file heads of argument on the matter of costs within fifteen days of
the date of this order.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
16
May 2011
1
Act
No. 61 of 1973.
2
The date of presentation of the winding up application.
3
It is common cause that Excellent Petroleum paid Imperial Bulk
Services an amount of R3, 500, 000.00 on 31 October 2005; an
amount
of R250, 000.00 on 11 November 2005; an amount of R100, 000.00 on
16 November 2005; an amount of R800, 000.00 on 8 November
2005; an
amount of R50, 000.00 on 23 November 2005; an amount of R20, 000.00
on 22 December 2005; an amount of R100, 000.00
on 9 January 2006;
an amount of R20, 000.00 on 9 February 2006; and an amount of R20,
000.00 on 8 March 2006.
4
Act No. 24 of 1936.
5
Gore and Others NNO v Shell
South Africa (Pty) Ltd
2004 (2)
SA 521
(CPD), para [3].
6
It appears that Excellent Petroleum also conducted a petroleum
depot in Maitland, Cape Town.
7
The contract expand on this term by stipulating that ‘...all
product purchased from the 26
th
of one month through to the 25
th
of the following month needs to be paid for by the last day of the
month thereafter.’
8
This application was issued out of the Cape of Good Hope Provincial
Division.
9
This application was issued out of the North Gauteng High Court.
10
See:
Lipschitz and Another NNO
v Landmark Consolidated (Pty) Ltd
1979 (2) SA 482
(WLD), at p 494D
11
See: Planitiff’s Notice in terms of Rule 36(9)(a) and (b) in
respect of Mr Johan Andre Gerber.
12
See: Notice in terms of Rule 36(9) dated 31 August 2010, and
annexure ‘A’ thereto.
13
See:
Ensor, N.O. v. New
Mayfair Hotel
1968 (4) SA 463
(NPD), at pp 464H – 465A
14
2004 (2) SA 521
(CPD), para [9].
15
I have omitted the footnote at the end of this passage.
16
2000 (3) SA 1009
(SCA), para [29].
17
The reference of
Malherbe’s
case is
Malherbe’s
Trustee v Dinner and Others
1922 OPD 18
at 22.
18
Fourie’s Trustee v Van
Rhijn
1922 OPD 1.
19
Paras [3] – [16].
20
Para [24].
21
I have omitted the footnotes to this passage.