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[2011] ZAGPJHC 198
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South African National Tuberculoses Association v Isseri and Others (33194/11) [2011] ZAGPJHC 198 (23 September 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE
NO: 33194/11
DATE:23/09/2011
In
the matter between:
SOUTH AFRICAN NATIONAL
TUBERCULOSES ASSOCIATION
Applicant
and
SATEESH ISSERI First
Respondent
DECAWIZ INVESTMENTS (PTY) LTD
Second Respondent
SURVEY PLEX 24 CC Third
Respondent
FIRST NATIONAL BANK Fourth
Respondent
PRIMI SUB-ACUTE MEDICAL CC
Fifth Respondent
NORWAMY READY Sixth
Respondent
ELIZABETH CHETTY Seventh
Respondent
JUDGMENT
NOTSHE AJ:
[1] In this matter the Applicant, a
non-profit benefit organization sought an order against the Applicant
for the following relief:
“
6. That it is directed that
the matter be heard as one of urgency and that the usual time periods
for the service and filing of
documents are dispensed with and the
failure to comply with the usual methods of service are condoned.
7. That the arbitration award made
by His Lordship Mr. Justice Streicher on the 18 day of August 2011 is
made an order of this Court.
8. Tat Respondents, save for the
4
th
Respondent, are ordered to restore possession of the premises
situated at 33 – 35 Hingham Field Office Park, Boeing Road,
Bedfordview.
9. That the Respondents, save for
the Fourth Respondent, are interdicted and restrained from:
a. In any manner dealing with the
assets or business affairs of the Applicant;
b. Transferring or causing to be
transferred to the Respondents or any Third party any of the movable
or immovable assets of the
Applicant.
c. Issuing any instructions to the
Applicant’s bankers or signing any cheques on the Applicant’s
bank account and/or
accessing the bank account of the Applicant.
d. Representing to any person/s
that the Respondents in any way act for and on behalf of the
Applicant in any manner.
10. That the Fourth Respondent is
interdicted and restrained from permitting the First to Third and
Fifth Respondents from operating
or transacting in respect of any of
the Applicant’s accounts held at the Fourth Respondent.
11. Costs of the application on an
attorney and scale.
”
[2] The application was brought in two
parts. Part A was disposed of and an order to that effect was made.
The dispute before me
is in relation to the Part B of the relief
sought.
[3] The relief sought in relation to
the arbitration award arises from the arbitration proceedings that
were commenced by the parties
by agreement. It is common cause that
after the Applicant had led its first witness the First, Second and
Third Respondents agreed
that the matter should be settled by
agreement between the parties. They concluded an agreement which was
made an arbitration award.
It is the aforesaid arbitration award that
the Applicant seeks to have it made an order of Court. The
arbitration award reads as
follows:
“
1. The Respondents will
restore occupation and possession of the building situated at 33-38
Hingham Field Office Park to the Claimant
by no later than 26
th
of August 2011.
2. Pending restoration of the
building as aforesaid the Respondents shall allow the Claimant to
monitor and control the management
by the Respondents of the
Claimant’s affairs in accordance with the order of Court issued
out by the South Gauteng High Court
inbt he urgent application.
3. The Respondents shall cause the
properties already transferred to Second Respondent or any other
legal entity under the control
of the First Respondent, save for the
Fort Grey property, to be restored to the Claimant at the
Respondents’ expense. In
the event of the Respondents failing
to do so within thirty days from date of this award, the Sheriff is
hereby duly authorized
to sign such documents necessary to give
effect to such transfers.
4. The Respondents shall in
addition be liable to pay on request any other costs relating to the
transfer of the said properties
inter
alia
arrear rates and taxes,
electricity accounts, water accounts, as may be necessary to effect
transfer of the properties to the Claimant.
5. The conveyancers who shall
attend to the transfer of the properties aforesaid shall be nominated
by the Claimant. The Respondents
record that the conveyancing
attorneys attending to the transfer are Carol Coetzee.
6. The conveyancers’ fees
shall be paid by the Respondents who shall pay such expenses and the
transfer costs as referred
to supra upon presentation of an invoice
from the conveyancing attorneys.
7. The Respondents shall as at date
that this agreement is made an award issue instructions to the bank/s
at which the Claimant
holds any banking account in terms of which
they shall terminate any signing powers that any of the Respondents
and/or their employees
may have on such banking account/s.
8. The Respondents further
undertake that as from the date that this agreement is made an award
they will not transfer or cause
to be transferred out of the bank
account/s of the Claimant any funds.
9. The Respondents shall within
5(five) days of the date of this agreement being made an award return
to the possession of the Claimant
the motor vehicles transferred to
the Respondents and/or any other legal entity under the control of
the First Respondent.
10. The Respondents undertake to
sign all the necessary documents to cause the aforesaid vehicles to
be transferred back into the
name of the Claimant upon request.
11. The Respondents shall on or
before the 26
th
of August 2011 restore to the Claimant all the financial records or
other business records of the Claimant.
12. The Respondents undertake as
from the date of this award not to remove any property of the
Claimant from the Claimant’s
premises. This includes an
undertaking not to remove, delete or otherwise interfere with the
accounting records of the Claimant.
13. The Respondents shall pay the
costs of the urgent application and the arbitration proceedings,
jointly and severally the one
paying the other to be absolved. All
other obligations undertaken by the Respondents herein shall also be
joint and several.
14. The parties agree that this
agreement shall be made an award in the aforementioned arbitration.
”
[4] The Respondents’ defence to
this relief is to the effect that there are proceedings pending
wherein the Respondents seek
to set aside the award.
[5] In other words their defence is to
the effect that I should not make an award because there are
proceedings pending regarding
the same matter. In this regards the
Supreme Court of Appeal held the following:
“
Lease
_____ is a discretionary remedy…
”
1
[6] In the exercise of the discretion
the Court should consider the merits of the two actions. If the
prospects of success in the
other matter are remote it will be
inconvenient to delay the other proceedings. In this case the award
was made by agreement between
the parties. The Respondents seek to
rely on some remote event to attack the award. They aver that some
money was paid into the
account of the main probably to influence her
to give false evidence. It is not explained why the evidence of that
witness was
not attacked. The fact that a witness is bribed to give
false evidence does not preclude a party from exposing the
untruthfulness
of that evidence. In this case the Respondents do not
even attempt to attack the evidence of the witness. As stated above
after
the evidencing chief they capitulated and agree to the award.
[7] In the circumstances I should
entertain the application.
[8] Except for the defence that there
are proceedings pending there is no other defence raised to the
relief sought. In the circumstances
the relief sought in paragraph 7
of Part B of the Notice of Motion namely that making the award of His
Lordship Mr. Justice Streicher
on 18 August 2011 an order Court
should be granted.
[9] Insofar as the relief sought in
paragraph 8 of the Notice of Motion, namely the restoration of
possession of premises situated
at 33-38 Hingham Field office park,
Boeing Road, Bedfordview the Applicants aver that they were
spoiliated those premises. They
aver that after the award was made
its employees moved into the premises they took possession of the
premises and changed the locks
thereof. They brought new security
personnel, took control of the remote of the alarm to the premises
and instructed the security
personnel not to allow the erstwhile
employees of the Third Respondents to enter the premises.
[10] It is common cause that on 24
August 2011 the Respondents and their attorney arrived at the
premises and took the possession
thereof without any Court order.
[11] The Respondents deny that they
despoiled the Applicant. Their defence is to the effect that the
Applicant was not in possession
of the premises.
[12] It is common cause that the
employees of the Applicant were at the premises on 24 August 2011
when the Respondents and its
attorneys arrived there. It is also
common cause that the locks have been changed by the Applicant and
they had replaced the security
personnel with theirs. It is telling
that the Respondents attorneys wrote to the Applicant’s
attorneys to say
inter alia
that his client, the Respondents had taken back possession of the
premises.
[13] On these facts I am satisfied
that the Applicant had taken possession of the premises. The
Respondents took possession of the
premises without any process. In
the circumstances its act amounts to spoliation. The Applicants are
entitled to the relief that
they seek in this regard namely the
restoration of possession of the premises.
[14] The relief sought in paragraphs 9
and 10 of the Notice of Motion is a final interdict. The Applicant
avers that it has cancelled
the management agreement it had concluded
with the Respondents. The relief against the Fourth Respondent is a
consequential relief
that will emanate if the relief sought in
paragraph 9 is granted.
[15] The Applicant further relies on
the award that was made by agreement.
[16] The Applicant avers that on 22
June 2011 it terminated the mandate of the Third Respondent to manage
its affairs. In this regard
it attached a copy of the resolution to
that effect. The Respondents merely make a bold denial in that
regard.
[17] It is trite law that the
principal is entitled to terminate the mandate of the agent. Whether
the termination is justified
or not does not come into the picture.
If the termination was done wrongfully the agent is left with an
action for damages. In
the absence of a mandate the Respondents have
no justification in insisting to manage the Applicant. I am satisfied
that the Applicant
has satisfied the requirements for the granting of
the final interdict they have every right not to be managed by the
Respondent.
The Respondents are insisting to manage them thereby
threatening to interfere with the Applicant’s right. The
Applicant has
no other adequate remedy except an interdict.
[18] In the circumstances I make the
following:
1. The arbitration award made by Mr.
Justice Streicher on 18 August 2011 is made an order of Court.
2. The First, Second, Third, Fifth,
Sixth and Seventh Respondents are directed to restore possession of
premises situated at 33-
38 Hingham Field Office Park, Bowing Road,
Bedford to the Applicant forthwith.
3. The First, Second, Third, Fifth,
Sixth and Seventh Respondents are interdicted and restrained from:
3.1 Dealing in any manner with the
assets of business affairs of the Applicant; and
3.2 Transferring or cause to be
transferred to them or any third party any immovable or movable
assets of the Applicant;
3.3 Issuing any instructions to the
Applicant’s bank account or signing any cheques from the
Applicant’s bank accounts
and/or accessing the bank account of
the Applicant;
3.4 Representing to any person/
persons that the Respondents in any way act for and on behalf of the
Applicant in any manner.
3.5 Interdicting and restraining
Fourth Respondent from permitting the First, Second, Third, Fifth,
Sixth and Seventh Respondents
from operating or transacting in any
respect any of the Applicant’s accounts held at the Fourth
Respondent.
3.6 Directing the First, Second,
Third, Fifth, Sixth and Seventh Respondents to pay the costs of this
application jointly and severally
the one paying the other to be
absolved.
__________________________
V.S
NOTSHE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Applicant:
M Smit
Attorneys
for the Applicants:
Messrs
D.C Veldman Attorneys
Counsel
for the Respondents:
Nigel
Riley
Attorneys
for the Respondents:
Messrs
Brider and Associate
Date
of the Hearing:
Date
of Judgment:
1
Janse Van Rensberg and Others NNO v Steenkamp and Another Janse Van
Rensberg and Others NNO v Mayberg and Others 2010(1) SA 649
(SCA) at
663