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[2015] ZAGPJHC 126
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Olmex (Pty) Limited v Kyriacou Incorporated and Another (2014/39212) [2015] ZAGPJHC 126 (12 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
JUDGMENT
CASE NUMBER: 2014/39212
DATE: 12 JUNE 2015
In the matter between:-
OLMEX (PTY)
LIMITED
.......................................................................................................
Applicant
And
KYRIACOU
INCORPORATED
................................................................................
First
Respondent
MARIO
KYRIACOU
...............................................................................................
Second
Respondent
JUDGMENT
HEARD: 10 JUNE 2015
DELIVERED: 12 JUNE 2015
HERTENBERGER, AJ:
[1] This is an application by the
applicant to enforce payment in terms of an undertaking given by the
respondents jointly, being
a firm of attorneys and the relevant
attorney in his personal capacity, to the applicant.
[2] The respondents in the application
requested this court to condone the late filing of respondent’s
answering affidavit.
I can find no reason to refuse such condonation
as I do not agree with the argument advanced by the respondent that
the respondents’
opposition of this matter is without merit.
Accordingly the condonation is granted.
[3] The applicant in this matter seeks
a judgment in its favour based on a letter of undertaking written by
the respondents in which
the respondents undertake to “retain
the amount of R211 605,75 in trust until such time as the dispute in
the matter has
been resolved, either by way of operation of law or
agreement between the parties”. It goes on further to state:
“We
trust you find the above in order and welcome you to
contact us insofar as you may not be satisfied with the wording of
this undertaking.”
The undertaking in this matter was given on
instructions of the respondents’ client, Zero Unlimited
Earthworks CC (“Zero”)
in an attempt to avoid the winding
up of Zero.
[4] It is undisputed between the
parties that the undertaking was given on the 22nd of February 2013
by way of a letter. It is
further undisputed that there was no
response to the undertaking until the applicant’s attorneys in
a letter dated 23 September
2014 sought to enforce the undertaking
against the respondents. By this time however, the respondents no
longer held the funds
in trust and Zero had already been wound up and
a liquidator had been appointed. It is important to consider the
events that took
place from February 2013, when the undertaking was
given to September 2014 when the applicant requested payment based on
the undertaking.
[5] The applicant had launched an
application for the liquidation of Zero in or during 2012. Zero
opposed the application and the
undertaking that is the topic of this
application was given by the respondents in order to fend off the
winding up application.
The winding-up application was unsuccessful
and the applicant’s attempt to appeal same, as well as the
petition to the Supreme
Court of Appeal in respect thereof were
likewise not successful. On 3 December 2013, the applicant issued
summons and obtained
a judgment by default against Zero for R536
067.90 on 28 January 2014. When the sheriff was instructed to
execute the writ issued
in respect of the default judgment on Zero,
it became apparent that Zero had been wound up. The sheriff’s
return in this
regard is dated 27 May 2014. The applicant then
through its attorney of record conducts various investigations, the
result of
which, do not assist this court greatly. What is curious
though is that the first written contact between the respective
parties
comes in the form of a letter dated 23 September 2014 in
which the applicant’s attorney now seeks to call upon the
respondents
to honor the undertaking. The respondents’ reply
indicating that their client has been liquidated and that the
respondent
ought to contact the liquidator. At this time the monies
where no longer in the possession of the respondents.
[6] The court has had regard to the
argument by the applicant that the undertaking was made and ought to
be honored. The respondents
have argued that the undertaking
constituted an offer, that had not been accepted and if acceptance
was not a requirement, then
the offer had to accepted within a
reasonable time. See in this regard Oos-Vrystaat Kaap Bedryf Bpk v
Van Aswegen
2005 (4) SA 417
(O) and Wissekerke and ‘n ander v
Wissekerke
1970 (2) SA 550
(A) at 557A It is on the latter basis
that this court is convinced by the respondents’ argument. The
respondents advance
on Zero’s instruction the undertaking to
avoid a winding up of Zero. Instead of engaging with the respondents
on Zero’s
behalf, the applicant chooses the route of remaining
silent in the face of the undertaking that was given and continuing
with steps
to have Zero wound up. These are the very steps that Zero
wished to avoid by advancing the funds to be held in trust. So
vehement
is the applicant’s attack on Zero that it does not end
in its attempt until the Supreme Court of Appeal declines its
petition.
Only then does the applicant issue summons, obtain default
judgment and seek to enforce the judgment through a writ of
execution.
Upon learning the status of Zero, the applicant does not
immediately contact the respondents (and in saying so the court is
not
conceding that this would have changed the outcome of this
matter), but continues with “investigations” for a
further
four months before writing to the first respondent and
requesting the payment in terms of the undertaking.
[8] It appears to this court that the
applicant had long since abandoned the right to claim against the
respondents’ undertaking.
It was determined to see to it that
Zero would be wound up. Summons was issued long after the
undertaking was given and in fact
only some time after the attempts
to wind-up Zero had failed. The applicant did not even acknowledge
the undertaking and upon
obtaining judgment, chose to serve the writ
on the premises of Zero. At the very latest at the time of the
granting of the default
judgment, the applicant ought to have
contacted the respondents to obtain payment of the monies still in
trust. The applicant
seeks to rely on the judgment of Aero-duct
Installations CC v Degaturn (Pty) Ltd t/a Profour Projects and
another
(2006) JOL 17631
(N) in an effort to convince this court that
by placing the funds in trust with the first respondent, Zero had
given up any right
to recall these funds. The applicant’s
conduct of not having accepted the undertaking either conditionally
or at all negates
this argument. The fact that they did not respond
at all is a clear indication that they had accepted the fact that the
monies
would not remain with the respondents forever. The respondent
argued that the respondents had paid the monies to the liquidator
who
had been appointed for Zero and that even if this court ordered the
respondents to pay the amount due, they could simply not
perform. As
the court does not find in favor of the applicant for the reasons
stated above, it is not necessary for this court
to make any finding
in regard to this argument. In as far as the applicant is not
successful, it follows that the applicant must
pay the respondents
costs.
In the result the following order is
made:
(1) The application is dismissed;
(2) The applicant shall pay the costs
of the respondent on the scale between party and party.
R HERTENBERGER
ACTING JUDGE OF THE HIGH COURT
1. Representation of Applicant :
Adv. A Friedman
2. Representation of Respondent:
Adv. W Strobl
3. Date Heard : 10 June 2015
4. Date Judgment delivered : 12 June
2015