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[2011] ZAGPJHC 71
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Courier Direct Logistics (Pty) Ltd v Gidani (Pty) Ltd (15683/09) [2011] ZAGPJHC 71 (11 August 2011)
IN THE HIGH COURT OF
SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE No. 15683/09
DATE:11/08/2011
REPORTABLE
(IN THE ELECTRONIC
REPORTS ONLY)
In the matter between:
COURIER
DIRECT LOGISTICS (PTY) LTD
(IN
LIQUIDATION)
Applicant
And
GIDANI
(PTY) LTD
Respondent
JUDGMENT
WILLIS J:
[1] This is an
application for payment of the sum of R1 659 103, 55; interest
thereon at the rate of 15,5% per annum from 26 February,
2011 to date
of payment and costs.
[2] The applicant
rendered courier services to the respondent in distributing various
lottery products to retailers and outlets
in the country. The
respondent is a licensed operator of the National Lottery. The
applicant has been placed in liquidation.
The debt of the
respondent to the applicant is one which the respondent has admitted.
In effect, the claim of the applicant is
one for “goods sold
and delivered”. The goods were sold by the applicant to the
respondent on account. Prior to the
applicant having been placed in
liquidation, the respondent had been making regular payments to the
applicant.
[3] Some time before the
applicant had been placed in liquidation, the applicant had ceded its
book debts to both Nedbank Bank Ltd
(“Nedbank”) and the
Industrial Development Corporation Ltd (“the IDC”), it
having been expressly agreed
that IDC would rank behind Nedbank. Both
Nedbank and IDC have proved their separate claims against the
applicant at meetings of
creditors of the applicant. The application
has been brought with the sanction of the liquidator of the
applicant.
[4] The respondent
contests its liability to pay on three bases:
(i) The cession to IDC
was not a cession
in securitatem debiti
but an “out-and-out”
cession;
(ii) The cession to
Nedbank was not a cession
in securitatem debiti
but an
“out-and-out” cession;
(iii) although the
respondent may have acknowledged its indebtedness to the applicant,
the respondent has a counterclaim which exceeds
the amount of the
applicant’s claim and accordingly the respondent disputes its
liability to pay the applicant.
[5] The agreement between
the applicant and the IDC was entered into on 20 June 2007 (before
the agreement between the applicant
and Nedbank) but records that
“the cession in terms of this document shall rank behind
Nedbank’s rights to the debtors”
The document is headed
“Reversionary Cession of Debtors”. Mr
Hutton
, who
together with Ms
Robertson
appeared for the respondent
contended that this was a cession of the applicant’s
reversionary right in the debts ceded to
Nedbank and accordingly was
an “out-and-out” cession. I disagree for the following
reasons:
(i) the document of
cession refers specifically to the cession being given “as
security for its (the applicant’s) obligations
to the creditor
(the IDC) in terms of the loan”;
(ii) the document of
cession refers in several places to the cession operating
as “continuing covering security”;
(iii) the document
nowhere refers to a cession of any reversionary interest that may
have been held by the applicant;
(iv)
it would have made no commercial sense whatsoever for the IDC to have
taken a cession of the applicant
’
s
reversionary interest in debts ceded to Nedbank;
(v) IDC, by proving its
claim in the liquidation of the applicant, was
ipso facto
disavowing that there could have been any intention as between the
applicant and the IDC that the cession be an “out-and-out”
cession;
(vi) the document seems
deliberately to have avoided any use of any Latin phrases with which
lawyers and those who may have received
some training in commercial
law will be familiar and, in context, the words “Reversionary
Cession of Debtors” must
have been a “plain English”
attempt to translate
in securitatem debiti
– in
other words, in the event that the applicant’s debt to IDC was
extinguished, the applicant’s full
right title and interest to
claim from its book debtors (the debts of whom had been ceded to IDC)
would revert it, the applicant.
[6] I also disagree that
the cession entered into between the applicant and Nedbank was an
“out-and-out” cession. My
reasons are the following:
(i) the document
specifically records that the cession is made
in securitatem
debiti
and even explains that this means that the cession
is given as security for a debt;
(ii) the document refers
to the cession operating as “continuing covering security”;
(iii) the document in
several instances refers to a pledge operating, in circumstances
where, to the extent that this is possible,
the cession is considered
to be coextensive with a pledge.
[7]
The defence of the counterclaim cannot succeed. It is an
afterthought. The respondent does not, in its answering affidavit
dispute the allegation in the applicant’s founding affidavit
that the reason it gave for not for not paying was that applicant
was
in liquidation. The decision in
Chemfos
Limited v Plaasfosfaat (Pty) Limited
[1]
does
not, therefore, assist the respondent. The facts of the present case
are distinguishable from those of the
Chemfos
v Plaasfosfaat
case
on another basis as well. In the
Chemfos
v Plaasfosfaat
case
the plaintiff had relied exclusively on the admission of indebtedness
by the defendant and not on the underlying
causa
of “goods sold and delivered”.
[2]
[8]
Counsel for both parties agreed that the distinction between a
cession made
in
securitatem debiti
and
an “out-and-out” cession has been resolved and made
clear in the cases of
Picardi
Hotels Limited v Thekweni Properties (Pty) Limited
[3]
and
Grobler
v Oosthuizen
.
[4]
The
dominium
in
the book debts remained vest in the applicant. Accordingly, once the
applicant went into liquidation, it fell to the liquidator
to collect
the book debt, including the indebtedness due by the respondent to
the applicant. This has been the position in our
law for more than
100 years. The judgment of
National
Bank v Cohen’s Trustees
[5]
has
been followed in innumerable cases, including the recent
Grobler
v Oosthuizen
[6]
decision
in the Supreme Court of Appeal (“the SCA”). The
position has been re-affirmed, in general terms, by the
SCA in
another recent decision of
Momentum
Group Limited v Van Staden N.O. and Another
.
[7]
The
applicant therefore succeeds.
[9] The following order
is made:
The respondent is to pay
the applicant-
(i)
The
sum of R1 659 103, 55;
(ii)
Interest on the aforesaid sum
at the
rate of 15,5% per annum from 26 February, 2011 to date of payment;
and
(iii)
Costs of suit.
DATED in JOHANNESBURG
this 11TH DAY OF AUGUST, 2011.
N.P. WILLIS
JUDGE OF THE HIGH
COURT
Counsel for the
Applicant: Adv.
B.M. Gilbert
Counsel for the
Respondent: Adv.
R. Hutton SC
(with him, Adv.
C.L
Robertson
)
Attorneys for the
Applicant: Reitz Attorneys
Attorneys for the
Respondent: Bowman Gilfillan Inc.
Date of hearing: 3
August, 2011.
Date of judgment: 11
August, 2011
[1]
1985
(3) SA 106
(A) at 115B-116C
[2]
See,
for example at p113C-E and 114C-H.
[3]
[2008] ZASCA 128
;
2009
(1) SA 493
(SCA)
[4]
2009
(5) SA 500 (SCA)
[5]
1911
AD 235
[6]
2009
(5) SA 500
(SCA) at paragraph [10]
[7]
2010
(2) SA 135
(SCA) at paragraph [20]