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[2011] ZAGPJHC 118
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Catai Transport Solutions (Pty) Ltd v Aim Group (Pty) Ltd (2011/14177) [2011] ZAGPJHC 118 (16 September 2011)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: 2011/14177
DATE:16/09/2011
In the matter
between
CATAI
TRANSPORT SOLUTIONS (PTY) LTD
.............................
APPLICANT
and
AIM GROUP
(PTY)
LTD
...............................................................
RESPONDENT
J
U D G M E N T
(LEAVE
TO APPEAL)
VAN
OOSTEN J:
[1]
The unsuccessful respondent now seeks leave to appeal against the
judgment and order I granted in favour of the applicant. For
ease of
reference I will retain the nomenclature of the parties as in the
main application.
[2]
In support of the application for leave to appeal counsel for the
respondent, with reference to the interpretation I afforded
to the
October email, submitted that another court may reasonably interpret
the contents thereof differently or decide that further
evidence may
well provide a satisfactory answer to the difficulties which
admittedly arise from a plain reading of the document.
I am unable to
agree. The document, on a plain interpretation thereof, can only be
reconciled with an unreserved intention to pay
an existing
indebtedness in regard to the respondent’s Witbank account with
the applicant resulting from a reconciliation
of that account and is
therefore in the nature of an acknowledgement of debt. The contention
that further evidence as to the meaning
if its contents may well be
held to be justified is without merit: the author of the email was
afforded the opportunity to address
and explain the contents of the
email which he availed himself of. I have dealt in the judgment with
the unsatisfactory explanation
he has tendered. There is nothing to
show why he should be afforded a further opportunity to again deal
with the selfsame issue.
Finally, this of course was not the only
ground on which I found against the respondent. Preciously little was
submitted concerning
the other findings I have made.
[3]
It was lastly contended by counsel for the respondent, that my
finding that the respondent could still avail itself of the right
to
institute action against the applicant in respect of the alleged
counterclaims, was unfair to the respondent in that the applicant,
in
the meanwhile, will have been paid in full in respect of its claim
and the respondent then facing the possibility of the applicant
eventually being unable to pay, should it be successful in its
counterclaims. There is no merit in the contention. The respondent
has had the benefit of the equipment manufactured for and sold to it.
The respondent, as alluded to in the judgment, has onsold
all the
equipment contrary to the provisions of the credit agreement
concluded between the parties for which it was paid and thereby
depriving the applicant of its security, pending payment. The
respondent’s payment in terms of the order I have made,
accordingly
cannot result in the kind of prejudice now contended for.
As fully dealt with in the judgment, the respondent has failed to
meet
the threshold of showing
bona
fide
sustainable counterclaims
justifying the stay of the applicant’s claim in these
proceedings. I am not satisfied that another
court may reasonably
come to a different conclusion on this aspect.
[4]
For these reasons I conclude that there are no reasonable prospects
of a successful appeal. It follows that the application
for leave to
appeal must fail.
[5]
In the result leave to appeal is refused, with costs.
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
...............................................................
16
SEPTEMBER 2011
DATE OF
JUDGMENT
…......................................................
16
SEPTEMBER 2011