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[2011] ZAGPJHC 168
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Bhambatha Investments Pty Ltd v Vilakazi and Another (3338/2011) [2011] ZAGPJHC 168 (4 August 2011)
IN THE SOUTH GAUTENG HIGH COURT OF
SOUTH AFRICA
JOHANNESBURG
CASE NO
: 3338/2011
DATE
: 2011-08-04
In the matter between
BHAMBATHA INVESTMENTS PTY
LTD
....................................
Applicant
and
ALBERT NDELENI DU PREEZ VILAKAZI
.....................
First
Respondent
DAPHNE SIBONGILE NENE
....................................
Second
Respondent
J U D G M E N T
WILLIS; J
:
[1] This is an application in terms of which the applicant seeks an
order that the first and second respondents are jointly and
severally
liable to pay the applicant the sum of R176 400; interest on the
aforesaid sum from 27 May 2010 to date of payment at
the rate of
15,5% per annum and costs of suit on an attorney and client scale.
The order is sought against the first and second
respondents on the
basis that they are jointly and severally liable the one paying the
other to be absolved. I pause here to mention
that I have not
debated with counsel the question of costs, and I shall invite them
to do so at the end of the judgment.
[2] The second respondent has not opposed the application. There has
been much huffing and puffing and hot air in this matter,
but the
following facts are incontestable and are common cause on the papers
before me:
1. The respondents were removed as directors of the applicant on 14
May 2010.
2. On the very same day they were sent by telefacsimile a letter
informing them not only that they were dismissed on their positions
as directors of the applicant, but also that they had no authority to
effect any payments on behalf of the applicant or to deal
with the
applicant's property.
3. That on the very next day (i.e. on 15 May 2010) the first
respondent at least and perhaps the second respondent as well gave
an
instruction to Nedbank to pay from the account of the applicant the
sum of R176 400 to the Zenzele Family Trust.
[3] This instruction to the bank was clearly unauthorised and,
accordingly, unlawful. On this basis alone the applicant must
succeed. Accordingly, an order is made against the first and second
respondents jointly and severally the one paying the other
to be
absolved in terms of Prayers 1 and 2.
POSTEA:
[4] Earlier in delivering judgment I indicated that I was unsure as
to which would be the appropriate cost order (i.e. an ordinary
order
on a party and party scale or on an attorney and client scale). I had
not had the benefit of hearing argument from counsel
on the issue. I
am now narrowly persuaded that the conduct of the respondents in
deliberately going to a bank and instructing them
to make a payment
when they must have been aware that they were prohibited by the
applicant to do so, is sufficiently reprehensible
to justify a cost
order on an attorney and client scale, even if they may have believed
that the Trust should have received this
money by reason of an
earlier resolution passed at the beginning of May. Accordingly, an
order is made that the costs of suit are
to be paid by the
respondents on an attorney and client scale. The liability is
obviously joint and several, the one paying the
other to be absolved.
Counsel for the applicant: Adv H P Jeffreys SC.
Counsel for the first respondent: Adv B M Gilbert.
No appearance for the second respondent.
Attorneys for the applicants: Bossert and Jaskokla.
Attorneys for the first respondent: Strauss Daly Inc.
Date of hearing 4 August 2011.
Date of judgment 4 August 2011.