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[2015] ZAGPJHC 226
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Man Financial Services (SA) (Pty) Ltd v FST Logistics (Pty) Ltd and Others (15/12692) [2015] ZAGPJHC 226 (5 October 2015)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION JOHANNESBURG
CASE
NO: 15/12692
DATE:
05 OCTOBER 2015
In
the matter between:
MAN
FINANCIAL SERVICES (SA) (PTY)
LTD
..................................................................
Applicant
And
FST
LOGISTICS (PTY)
LTD
.....................................................................................
First
Respondent
VENTER,
MICHAEL
JOHN
..................................................................................
Second
Respondent
MATTHYSSEN,
FANIE
.............................................................................................
Third
Respondent
FS
TRUCKING (PTY)
LTD
....................................................................................
Fourth
Respondent
ROUSSOUW,
DORNÉ
.................................................................................................
Fifth
Respondent
JUDGMENT
YACOOB,
AJ:
[1]
This is an application for the return of
equipment, made up of 15 trucks and 9 trailers, from the first
respondent, FST Logistics
(Pty) Ltd (“Logistics”) to the
applicant (“MAN”).
[2]
The equipment had been the subject of
rental agreements between the fourth responent, FS Trucking (Pty) Ltd
(“Trucking”),
and MAN, in terms of which MAN purchased
the equipment, at the request of Trucking, for the purpose of renting
it to Trucking.
It was among Trucking’s responsibilities under
the rental agreements to maintain and insure the equipment, as well
as to
pay the rental amount, which was liable to change if the prime
rate changed.
[3]
The term of the agreements was from 18 May
2012 to 05 August 2015. The agreements provided that Trucking would
be in default if,
amongst other things, it failed to comply with a
material provision of the agreements, or was placed into business
rescue or liquidation.
[4]
MAN describes the arrangement between
itself and Trucking as one which “financed the
acquisition” of the equipment,
despite the fact that the
agreements provided for the equipment to be returned to MAN at the
end of their term. The agreements
are variously referred to as rental
agreements and credit agreements. For purposes of this judgment I do
not consider their true
nature to be material.
[5]
Before the term of the agreements expired,
and, in fact, shortly after they were concluded, Trucking defaulted
on the agreements
by failing to keep up its payments, and by being
placed in business rescue on 27 August 2012.
[6]
Oddly, the business rescue practitioner is
not cited in these proceedings, nor has consent been obtained for
bringing proceedings
against Trucking while it is in business rescue.
Submissions were made to me to the effect that, while the business
rescue proceedings
had apparently not been conculded, the omission is
of no moment, as no relief is sought against Trucking and the
equipment does
not form part of Trucking’s assets. For purposes
of this application, I shall accept that those submissions are
correct.
[7]
Trucking failed to make payments to MAN in
terms of its Business Rescue Plan. Logistics then approached MAN,
saying that it had
contracts that could be carried out by using the
equipment, and requested permission to use the equipment. MAN agreed,
and Logistics
proceeded to use the equipment for the same purposes
for which Trucking had used them. The Use Agreement was entered into
between
Logistics and MAN, but was only signed on 14 July 2014, a
year after the arrangement between Logistics and MAN had commenced.
[8]
The Use Agreement allowed Logistics to use
the equipment on the terms set out in the “use agreement
clauses” of the
rental agreements, which are called in the Use
Agreement “credit agreements”. Unfortunately the Use
Agreement does
not identify which clauses those are. However, reading
the credit/rental agreements reveals that the only part which deals
with
the actual use of the equipment is Clause 3, which is entitled
“the Goods”. Clause 3, amongst other things, requires
Trucking to maintain the equipment.
[9]
The Use Agreement provides that Logistics
will make monthly payments to MAN which will be at least equal to the
amounts due as “instalments”
in the rental/credit
agreements, and that Logistics will make payments towards Trucking’s
debt (plus interest) to MAN resulting
from Trucking’s
non-payment. Trucking was, however, not precluded from also making
payments towards the debt. Logistics and
Trucking were now
co-principal debtors.
[10]
The Use Agreement provides that if any
payment due is not made punctually, the equipment will be returned to
MAN. It does not contain
a non-variation clause, nor does it provide
that the entirety of its terms are contained in the written document.
[11]
Logistics was unable to pay an amount equal
to the monthly instalments or rental, variously identified as R575
000 and R585 000,
let alone any extra amounts. It made a few small
payments, which in view of the size of the debt (in excess of R20
million) were
insignificant.
[12]
MAN issued summons against,
inter
alia
, Logistics and Trucking in March
2015, and issued this application on an urgent basis in April 2015.
The relief sought in this
application mirrors that in one of the
prayers contained in the summons. This application was eventually
heard in the normal course.
[13]
The summons issued by MAN sought the
payment of amounts outstanding in terms of the rental/credit
agreements, while in this application
MAN seeks only the return of
the equipment.
[14]
Logistics claims that the Use Agreement was
a common law letting and hiring of property agreement, which, in
addition to the terms
of the written agreement, imposed the
obligation upon MAN to
14.1
deliver the equipment to Logistics;
14.2
guarantee Logistics undisturbed enjoyment
of the equipment;
14.3
maintain the equipment, and
14.4
guarantee Logistics against defects in the
equipment and damages resulting from those defects.
[15]
Logistics claims also that the agreement
was continually renegotiated, and the upshot of these renegotiations
was that Logistics
was to be permitted to pay what it could, when it
could. As a result, Logistics’s intermittent payments of
approximately
R55 000 in March 2015, which is less than 10% of the
full monthly rental or instalment, would, on Logistics’s
version, have
fulfilled Logistics’s obligations under the Use
Agreement.
[16]
Logistics claims also that it was not given
undisturbed enjoyment of the equipment, that at least some of the
equipment was never
delivered to it in a condition in which it was
fit for purpose, and that MAN failed to maintain the equipment.
Logistics was, therefore,
in any event not obliged to make payments
to MAN.
[17]
Unsurprisingly, MAN denies Logistics’s
version.
[18]
Mr
Theron, for the first, second and fourth resondents, relies heavily
on the principle established in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), to the effect that application proceedings in
which final relief is sought must be determined on the respondent’s
version,
unless the respondent’s version is “so
far-fetched or clearly untenable that the Court is justified in
rejecting [it]
merely on the papers”.
[1]
[19]
Mr Theron submitted also that Logistics did
not bear the
onus
of proving the agreement that it alleged, but that because MAN relies
on breach of an unvaried agreement, MAN bore the
onus
of disproving the varied agreement. In
support of this submission, Mr Theron relied on the judgments of the
then Appellate Division
in
Kriegler v
Minitzer
1949 (4) SA 821
(A)
(“
Kriegler
”);
Topaz Kitchens (Pty) Limited
v Naboom Spar (Edms) Beperk
1976
(3) SA 470
(A) (
Topaz Kitchens
)
and
Stocks & Stocks (Pty) Limited v
T J Daly & Sons (Pty) Limited
1979
(3) SA 754
(A) (“
Stocks &
Stocks
”), all of which hold that
it is part of a plaintiff’s
onus
of proving the terms of the agreements
on which it relies to prove also that the agreements do not include
the terms alleged by
the defendants.
[20]
I have considered these submissions
carefully and have come to the conclusion that this case is
distinguishable from the cases of
Kriegler
;
Topaz Kitchens
,
and
Stocks & Stocks
.
In each of those cases, the defendant had admitted the terms of the
agreements alleged by the plaintiff, but alleged an additional
term.
The courts held that the plaintiff’s
onus
was to prove its complete agreement, that is, that there were no
other terms of the agreement.
[21]
In this case, however, the Logistics does
not simply admit the terms of the agreement alleged by MAN, and
allege further terms.
This might have been the case, for example, had
Logistics pleaded that the terms of the Use Agreement were as set out
in the written
document, with the addition of the terms of a common
law letting and hiring of property agreement. However, Logistics went
further
than that.
[22]
Logistics has alleged what is, in essence,
a completely different agreement. Although the written Use Agreement
refers to and relies
on the rental/credit agreements, Logistics
alleges that the actual Use Agreement requires delivery afresh to
Logistics, of equipment
in a better condition than Logistics alleges
the equipment was in when it obtained permission to use the equipment
instead of Trucking,
or when the Use Agreement was entered into.
Logistics alleges also that the actual Use Agreement contains terms
regarding maintenance
very different to those in the rental/credit
agreements.
[23]
While it is arguable that these allegations
may be subsumed under the category of terms additional to the written
agreement on which
MAN relies, Logistics alleges that the terms
of the actual Use Agreement regarding payment to MAN are
fundamentally different
from those contained in the written Use
Agreement.
[24]
The written Use Agreement states that
Logistics is to pay to MAN every month a minimum amount which is
equal to the instalment (or
rental) due in terms of the credit (or
rental) agreements, which on Logistics’s version, was an amount
of R585 000 per month.
Logistics contends that the actual Use
Agreement has been amended so that Logistics will, essentially, pay
what it can, when it
can. This is clearly a fundamental amendment to
the terms of the Use Agreement. Logistics is therefore not simply
alleging an additional
term to an admitted, otherwise common cause,
agreement, but is disputing the terms of the agreement alleged by
MAN, and alleging
different
terms. The
onus
to
prove those different terms is therefore on Logistics.
[25]
However,
it appears to me that in application proceedings the
onus
is
irrelevant. This is because, whether the
onus
lies
with the applicant or the respondent, the evidence on which an
application is decided (that is, the probabilities) is determined
in
accordance with the rule in
Plascon-Evans
.
[2]
[26]
I must therefore decide the matter on the
Logistics’s version, unless that version contains allegations
which are untenable
or far-fetched.
[27]
Logistics’s contention that MAN had
an obligation to deliver the equipment to Logistics, in a condition
that was apparently
better than the condition the equipment actually
was in, and to guarantee Logistics undisturbed enjoyment must be
weighed against
Logistics’s own allegation that the use of the
equipment was simply “taken over” by Logistics from
Trucking,
and that the written Use Agreement was entered into in
order for Logistics “to retain usage of the trucks and
trailers”.
The two sets of allegations are so inconsistent with
one another that they cannot both be true.
[28]
Logistics clearly already had use of the
equipment, which it took over from Trucking, before the Use Agreement
was entered into,
and could not expect any fresh delivery other than
the delivery it obtained by way of MAN’s agreement that it
could take
over from Trucking, nor could Logistics expect delivery of
the equipment in any condition other than the condition the equipment
was in when Logistics took it over from Trucking.
[29]
It is common cause that the rental/credit
agreements placed the obligation of maintenance on Trucking. Having
found that the “use
agreement clause” of those agreements
must be clause 3, in which the maintenance obligation is contained, I
am inclined to
reject Logistics’s contention that, in terms of
the actual Use Agreement, MAN was now obliged to maintain the
equipment.
[30]
This inclination is supported by an
examination of the probabilities of the essence of Logistics’s
version. The essence of
Logistics’s version is that, in
exchange for intermittent and uncertain payments of a fraction of the
monthly payment amount,
MAN agreed to let Logistics use the equipment
and accepted an additional obligation of maintaining that equipment,
which it had
not had when it was entitled to monthly payments of the
full amount. MAN is therefore said to have relinquished its right to
a
substantial monthly payment in exchange for shouldering a
considerably more onerous obligation, for which it reaps little or no
return. This is, in my view, both clearly untenable and so
far-fetched that I am entitled to reject this version on the papers
alone.
[31]
In the circumstances, I find that
Logistics’s version is not only far-fetched and untenable, but
also internally contradictory.
I therefore reject Logistics’s
version, and find, on a balance of probabilities, for MAN.
[32]
During argument, Mr Strydom made it clear
that MAN sought an order only against Logistics.
[33]
For the reasons above, I make the following
order:
1.
The
first respondent is to cause delivery of the following assets to the
applicant:
1.1.
2012 MAN TGS 26.440 BLS LX 6X4 T/T C/C
With chassis number:
AAM…………..
And
with engine number: 51……..…….
1.2.
2012 MAN TGS 26.440 BLS LX 6X4 T/T C/C
With chassis number:
AAM78……………
And
with engine number: 51………….
1.3.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM7…………..
And
with engine number: 515………..
1.4.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM………….
And
with engine number: 51……………
1.5.
2012 MAN TGS 26.440 BLS ………..
With chassis number:
AAM78……………
And
with engine number: 51………….
1.6.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM7……………
And
with engine number: 515………..
1.7.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM78…………..
And
with engine number: 515…………..
1.8.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM7…………..
And
with engine number: 515……………
1.9.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM7…………….
And
with engine number: 515……………….
1.10.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM7…………..
And
with engine number: 515…………..
1.11.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM…………..
And
with engine number: 515…………………
1.12.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AAM7…………….
And
with engine number: 515…………….
1.13.
2012 MAN TGS 26.440 BLS LX 6X4
With chassis number:
AA……………
And
with engine number: 51……………..
1.14.
2012 MAN TGS 26.440 BLS LX 6X4
with chassis number:
AAM……………….
and
with engine number: 515……………..
1.15.
2012 MAN TGS 26.440 BLS LX 6X4
with chassis number:
AAM………………
and
with engine number: 51………………
1.16.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV7…………….
1.17.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV7…………..
1.18.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV……………….
1.19.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: AD……………..
1.20.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV7………………..
1.21.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV7………………
1.22.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV76……………….
1.23.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: A………………………….
1.24.
2007 AFRIT 6 12 M TANDEM AXLE I
with
chassis number: ADV7……………….
2.
If the first respondent refuses to hand
back the assets listed in paragraph 1 of this order, the Sheriff is
authorised to take into
possession the assets described in paragraph
1 of this order, wherever they may be found, and hand them over to a
representative
of the applicant.
3.
The first respondent is ordered to pay the
costs of this application.
S YACOOB
Acting Judge of
the South Gauteng
High Court,
Johannesburg
Date of Hearing:
20 May 2015
Dare
of Judgment: 05 October 2015
APPEARANCES
APPLICANT:
R Strydom SC
Instructed
by Smit Sewgoolam Incorporated
FIRST,
SECOND and
FOURTH
RESPONDENTS: EL Theron SC
CA
du Plessis
Instructed
by Brits & Weideman Inc
[1]
At
635C
[2]
See,
in this regard,
Ngqumba
en ‘n ander v Staatspresident en andere; Damons NO en andere v
Staatspresident en andere; Jooste v Staatspresident
en andere
1988 (4) SA 225
(A) at 259C-263E and the authorities there cited.