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[2011] ZAGPJHC 117
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Catai Transport Solutions (Pty) Ltd v Aim Group (Pty) Ltd (14177/2011) [2011] ZAGPJHC 117 (29 July 2011)
IN THE SOUTH GAUTENG
HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
:
14177/2011
DATE
:
2011-07-29
NOT REPORTABLE
In
the matter between
CATAI
TRANSPORT SOLUTIONS (PTY) LTD
APPLICANT
And
AIM
GROUP (PTY) LTD
RESPONDENT
Rei vindicatio
alternatively payment – specialised equipment sold and
delivered – respondent’s defence in nature
of
counterclaims – requirements to be satisfied to order to stay
applicant’s claim and allow respondent to prove counterclaims
in action - failure to show bona fide sustainable counterclaims –
judgment granted in favour of applicant.
J U D G M E N T
VAN OOSTEN; J
:
In this application the applicant seeks an order against the
respondent, by way of a
rei vindicatio,
for the return of
certain vehicles and machinery (the equipment), in the alternative
payment of the amount allegedly owing to it
by the respondent
resulting from the sale of the equipment. As the matter progressed it
became apparent that the respondent had
sold all the equipment
contrary to the reservation of ownership clause in the credit
agreement in terms of which the equipment
was sold. Nothing, however,
turns on this aspect as the applicant is persisting in its
alternative claim for payment only.
No prejudice has resulted
from the applicant’s election and it does not have any bearing
on the costs of this application.
The
facts of this matter are the following: the applicant manufactured
and sold the equipment, consisting of certain specialised
vehicles,
for the respondent in terms of a written credit agreement that had
been concluded between the parties. The applicant
alleges that the
respondent is in arrears with the payment of the invoiced amounts.
The applicant, in order to prove the
quantum of its claim, in the
founding papers, relies on a certificate of balance which is provided
for in the agreement, signed
by a director and chief executive
officer of the applicant. In addition thereto, the applicant
has annexed copies of all
relevant invoices to the founding
affidavit.
The
applicant concedes that the amount stated in the certificate of
balance, in fact, is incorrect and a final reconciliation of
the
amounts due has been made in the replying affidavit, which is the
amount now claimed. The respondent's version concerning the
amount of
its alleged indebtedness must, however, also be considered before a
final determination on the quantum of the applicant’s
claim can
be made. It is, therefore, first necessary to deal with the
respondent's version, after which I will revert to
the quantum of the
applicant's claim.
This brings me to the
defences raised by the respondent. In a nutshell the respondent, one
the one hand, denies any indebtedness
to the applicant and on the
other, relies on a number of defences all in the nature of a
counterclaim.
The
approach that I accordingly propose to adopt in deciding this matter
is firstly, to consider the applicant's claim, and then,
secondly, to
determine whether the respondent has shown a
bona fide
sustainable counterclaim, which if proved at the trial, will at this
stage justify a stay of the applicant’s claim. It is
common
cause that the respondent's counterclaims are incapable of
determination on the papers as they stand and that an order for
the
referral thereof to trial would have to follow. But, there is this
prior hurdle that the respondent needs to overcome and that
is
whether the respondent has shown
bona fide
sustainable
counterclaims. I accordingly turn to consider that aspect.
As
a point of departure, the respondent faces one, in my view,
insurmountable obstacle in showing a sustainable defence and
counterclaim.
It arises from certain email correspondence, annexed to
the papers,, and is the following: On 4 October 2010 the group
financial
manager of the respondent (Johann Kruger) sent an email to
applicant's debtors and creditors manager (May-Ann Volschenk).
Before I deal with its contents it is important to bear in mind that
the email was sent after all the invoices making up the applicant's
claim, but for one or two, had been delivered to the respondent and
furthermore, that it was sent in response to a request by the
applicant's credit manager, dated 1 October 2010, which reads as
follows:
"Johan,
Môre, kan ek
asseblief vra wanneer julle gaan betaal en wat die bedrag sal wees
groot asb, indien jy dalk vir ons solank 'n
remittance kan stuur van
wat julle gaan betaal en dalk wanneer sal ons dit regtig waardeer
groot asb.
Sien asb julle staat
weer aangeheg vir einde September.
May-Ann Volschenk"
I pause to mention that
the statement annexed and referred to, shows a balance owing in the
sum of R857 059,10. The response
to this email reads as
follows:
"Hi Mary-Ann,
Hierby aangeheg is die
rekonsiliasie van julle Witbank rekening. Die betalings is
geskeduleer soos in aangehegte spreadsheet vervat.
Ons beplan
betaling van R127 908.00 die betaling sal die week gedoen word. Ek
het nog nie 'n staat, fakture en bewys van aflewering(s)
julle
Heidelberg rekening ontvang nie. Stuur asseblief dringend aan.
Groete
Johann Kruger."
The response is
significant. It is irreconcilable with the defences now relied upon.
In the answering affidavit, the said Kruger
explains the email as
follows:
“
Annexure “K”
to the applicant’s founding affidavit (ie the email referred to
above) does not purport to be an
acknowledgement of debt. It merely
confirms that I reconciled the invoices received from the applicant
with the invoices reflected
on the respondent’s accounting
system.” t
I have difficulty in
reconciling the explanation with the contents of the email. The email
expressly conveys an undertaking to pay
an immediate fixed amount as
well as further payments in terms of the spreadsheet. If this had
been a mere reconciliation as contended
for, one would plainly not
have expected the spreadsheet setting out scheduled payments, to have
been annexed to the email. But
it does not end there.
In
the respondent’s answering affidavit, Kruger, says nothing
concerning the undertaking or the proposed payments referred
to in
his email. The offer of payments is clearly irreconcilable with
either the version now proffered by the respondent or, as
will become
apparent, the counterclaims now relied upon. The email undoubtedly
conveys an acknowledgement of indebtedness coupled
with an offer to
pay in instalments. The respondent’s general stance, showing an
intention to pay its indebtedness, already
arose in an earlier email,
dated 17 September 2010, in which a request was made for the increase
of the respondent’s credit
limit with the applicant, from R350
000 to R1_million, for the reason "sodat dit die uitstaande
saldo sal dek".
The
main counterclaim relied upon by the respondent is that certain items
of the equipment sold and delivered to it, were defective.
The
respondent states that the costs of rectifying the defects amounted
to some R125 000 in support of which it has annexed copies
of a
series of invoices to the answering affidavit. A mere superficial
examination of the invoices reveals a number of suspicious
aspects.
Some of them were made out as invoices to third parties (it is not
explained by the respondent why this is so or how these
were further
dealt with) and others, appearing on the respondent's own letterhead,
reflect grossly inflated amounts, including
so-called mark-ups of
between 37% and 487%. But it goes further.
There is nothing in the
papers before me to show that the respondent communicated any of the
alleged defects at any stage to the
applicant. Furthermore, the
following apparent improbability arises: assuming an amount of more
than R164 000, according to the
respondent’s invoices, having
been expended in respect of alleged repairs of the defects by the
time the October email was
sent, one would have expected some
reference to this in the email. It is plainly inconceivable that the
respondent would not have
raised this issue as well as the other
defences now relied upon, in what it now prefers to call its
"reconciliation"
in the October email, which it must be
remembered, pertinently addressed the payments of amounts that were
due.
The
further counterclaims relied upon by the respondent are an alleged
loss of turnover, the applicant's breach of a confidentiality
agreement, the applicant's copying of a design by "reverse
engineering" and finally, late delivery of certain orders.
None
of these, however featured at any time in the interactions between
the parties, from May 2010 to November 2010. Counsel for
the
respondent was unable to point to any reference to any of the
counterclaims in any of the documents exchanged between the parties.
On the contrary, at the stage when the alleged damages now relied
upon for purposes of the counterclaims, had already occurred,
the
respondent, in the face thereof, offered to pay the full amount
claimed by the applicant. This is my view seriously compromises
the
bona fides
of the alleged counterclaims. The allegations in
regard to each of the alleged counterclaims reveal a glaring absence
of material
allegations to sustain the defences and are in general,
vague, sketchy and argumentative. They lack substance and I am left
with
the inevitable impression that they were created much by way of
an afterthought as a smokescreen in order to delay the inevitable,
which is payment of the amount due to the applicant. For these
reasons I am driven to the conclude that the respondent has
failed to
meet the first threshold of showing
bona fide
counterclaims.
The
finding of course does not disentitle the respondent from pursuing
its alleged claims against the applicant, but I am not satisfied
that
those justify a stay of the present proceedings in order to allow the
respondent to prove its counterclaims. It follows that
the applicant
must succeed in its claim.
Reverting to the quantum
of the applicant’s claim, which as I have mentioned, was
shrouded in some uncertainty. The applicant
has disavowed further
reliance on the certificate of balance. The reconciliation the
replying affidavit shows that the applicant
in its re-calculation of
the amount due, has deducted certain credits in favour of the
respondent for it to arrive at the final
amount of R781 067,37.
Counsel for the applicant, very properly asked for judgment in this
amount, or in the alternative
for the lesser amount reflected in the
applicant’s statement annexed to the October email.
In
my view, there are no reasons for doubting the accuracy of the
applicant's calculations. Nothing has been put before me
to
show that any of the applicant's calculations (except for the credits
I have referred to) were at any time wrong. The
respondent
always trusted the applicant's calculations and in fact offered to
pay the amount as had been calculated by the applicant.
The
certificate of balance, merely failed to take into account certain
credits. That in my view is of no moment. In
view thereof
there is no reason for not accepting the amount of R781 067,37 as
having been duly proven.
In
the result I grant judgment in favour of the applicant, against the
respondent, for:
1. Payment of the
sum of R781 067,37.
2. Interest on the
amount in paragraph 1 above at the rate of 15,5 percent per annum
from 6 April 2011 to date of final payment.
3. Cost of the
application.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL FOR THE
APPLICANT
.......................................
ADV
X STYLIANO
APPLICANT’S
ATTORNEYS
.................................................
RAMSAY
WEBBER
COUNSEL FOR THE
RESPONDENT
..................................
ADV
EB CLAVIER
RESPONDENT’S
ATTORNEYS
............................................
GILDENHUYS
LESLIE INC
DATE OF
HEARING
................................................................
28
JULY 2011
DATE
OF
JUDGMENT
............................................................
29
JULY 2011