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[2016] ZAGPJHC 230
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Xspan Meats (Pty) Ltd v Ndyamara N.O and Others (20018 / 2014) [2016] ZAGPJHC 230 (1 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
20018 / 2014
DATE:
1 AUGUST 2016
In
the matter between:
XSPAN
MEATS (PTY)
LTD
....................................................................................................
Applicant
And
AVIWE
NTANDAZO NDYAMARA
N.O
......................................................................
1st
Respondent
FRANS
LANGFORD
N.O
.............................................................................................
2nd
Respondent
DANIESE
ELAINE STEYN
N.O
...................................................................................
3
rd
Respondent
JUDGMENT
MASHILE
J
[1]
On 5 June 2014, this Court per Spilg J, with the consent of the
parties, granted an order in the following terms:
“
1.
The First, Second and Third Respondent will return to XSPAN MEATS
(Pty) Ltd and/or XSPAN LOGISTICS CC and/or Jorge Sebastiano
Paulo,
and connect, the following equipment:-
1.1)
Handman VFQ08 FILLER machine within 24 hours;
1.2)
CUMMINS GENSET and PANEL before 16h00 on 6 June 2014;
2.
The First, Second and Third Respondents note that they formally
abandon the complete paragraph 2 of the Order made by the Magistrate
Dolmas on 18 December 2013 under case number 1133/2013;
3.
XSPAN MEATS (Pty) Ltd and/or XSPAN LOGISTICS CC and/or Jorge
Sabastiano Paulo is to pay monthly amounts of respectively R 7 000-00
and R 5 000-00 as compensation for the use of the items listed In
paragraphs 1.1 and 1.2 respectively, payable on the first day
of each
consecutive month In advance into the Estate Account opened for
OUTSPAN CHICKEN & MEAT CC (In Liquidation) being ABSA
account 408
254 1797, which payments will continue to be made monthly until
proper market valuations are attained and XSPAN MEATS
(Pty) Ltd Is
provided an opportunity to make an offer for payment of/or In
settlement of this respective items;
4.
The First, Second and Third Respondent pay an amount of R 17 000-00
for cost.”
[2]
The Applicant now seeks to:
2.1
Vary the order in terms of Uniform Rule of Court No 42(1)(c);
2.2
Declare certain valuations certificates procured by the Respondents
to be non-compliant for lack of satisfaction of the requirements
of a
valid valuation certificate;
2.3
Order the Respondent to secure forced sale valuations for the Handman
and Cummins machines referred to in the order of Spilg
J of 5 June
2014, such valuations to be prepared by a registered and sworn
valuator;
2.4
Order the Respondents to present the sworn valuation to the Applicant
who will be provided an opportunity to make an offer for
payment of /
or in settlement of the respective items;
2.5
Order the Respondents to furnish the Applicant with VAT invoices for
the purchase of the 4 Hino Trucks, the Freelander and Discovery
vehicles which were sold in the liquidation of Outspan Chicken &
Meat CC. In the alternative, ordering that the Respondents,
as the
parties responsible for the arrangement of the sale of the trucks, to
assist the Applicant in securing such VAT invoices.
[3]
In 2013, Outspan Chicken & Meat CC went into liquidation and the
Respondents were appointed as it’s liquidators. The
business of
Outspan Chicken & Meat CC was forced to fold following that
liquidation. Before its liquidation, Xspan Chicken
and Meat CC
had purchased a Handmann VF608 Filler bearing serial number
VF607-27696 and a 200KVA Cummins Genset and 200KCA bearing
serial
number 9195976 (hereinafter “the equipments”) from
Standard Bank of South Africa.
[4]
In November 2013, the Applicant concluded an agreement with the
Respondents in terms of which it hired the equipment’s
for a
total sum of R12 000.00 per month. On 2 June 2014, the
Respondents removed the equipment’s from the Applicant
in
response of which the Applicant launched a spoliation application in
this Court wherein it claimed the return of the equipment’s
.
On 5 June 2014 and by consent of both parties, this Court granted the
order referred to in paragraph 1 above.
[5]
A terse uncontested background of the circumstances that unfolded
before the granting of the order on 5 June 2014 is that its
wording
and contents were a subject of intense negotiations between the
parties. Two difficult issues arose during the negotiations
and
they concerned contribution towards the costs of the applicant (Xspan
Chicken and Meat CC) and reference to ‘proper valuations’.
Costs were ultimately resolved with the Respondents agreeing to
contribute an amount of R17 000.00 as captured in the order.
[6]
Attorney Yasmin Omar insisted to the attorney of the Respondents, Ms
Hartzer, that reference to ‘proper valuations’
was to be
substituted for ‘market valuations’. Both parties
finally resolved that the order should read as it
stands now.
Spilg J perused the proposed order and amended it to reflect the
intention of the parties.
[7]
It is now paragraph 3 of the order of Spilg j that the Applicant
seeks to vary by the deletion of the words, “market valuations”
and substituting therefor with “forced sale valuations”.
In doing so, it is enthused by the fact that if the
order is not
varied, the Respondents will unlawfully and in contravention of the
agreement that they have with it, endeavor to
exert the optimal price
from it to which it is not ordinarily entitled.
[8]
In 2014, the Respondents and the Applicant entered into an agreement
in terms of which the latter purchased certain vehicles
from the
Respondents. The Respondents secured VAT during the sale and
promised to furnish Applicant with a VAT invoice to
enable it to
recover it’s VAT from the South African Revenue Service.
The Respondents are said to have declined to
furnish the Applicant
with the VAT invoices to enable it to claim from the South African
Revenue Service.
[9]
This Court is asked to decide whether or not:
9.1
It can vary its order dated 5 June 2014 in the manner suggested by
the Applicant;
9.2
The valuations that the Respondents obtained for purposes of
paragraph 3 of the order of 5 June 2014 are legally competent;
9.3
The Respondents should be ordered to provide VAT invoices to the
Applicant for the purchase of the vehicles to enable it to
claim VAT
from the South African Revenue Service.
[10]
The Respondents have contended that the Applicant does not have
locus
standi
to launch these proceedings
because it was not a party to the proceedings of 5 June 2014 the
order of which it now seeks to vary
by this application. They
have submitted that this Court is entitled to dismiss the Applicant’s
claim solely on that
point alone. They have further asserted
that the Applicant cannot vary the order as it was the product of
comprehensive negotiations
between the parties and in any event this
was not one of the instances where a court could vary its own order.
[11]
With regard to the validity of the valuations, the Respondents
conceded albeit not in so many words that the documents do not
constitute valid valuations as legally contemplated because they do
not comply with some of the requirements, which will be pointed
out
as this judgment unfolds. Lastly, the Respondents deny that the
Applicant is entitled to receive VAT invoices from them
because the
money was not paid to them. In those circumstances they fail to
understand how the Applicant could demand to
be provided with the
invoices.
[12]
In its endeavour to amplify its application for the variation of the
order, the Applicant argued that the draft order
was prepared
by the Respondents’ legal representatives and that it and
its attorneys did not think that the term “proper
market
value”, now captured in the order, would entail a valuation on
the open market.
[13]
It was always contemplated, contended the Applicant, that the
valuations to be attached would be the value that the Respondents
would secure from an auction sale. More particularly, this
valuation would be a “forced sale” value in view of
the
Respondents selling same by auction in terms of liquidation
proceedings. From this, the Applicant concludes that the
common
continuing intention of the parties at the time that the court order
was agreed to, was that the Applicant would offer to
the Respondents
the amount they would likely secure at an auction.
[14]
Accordingly, to the extent that the order fails to reflect that
common continuing intention at the time when it was granted,
it
stands to be varied so that it can be consistent with the intention
of the parties at the time. The words, ‘proper market
valuation’ must be deleted and substituted therefor with
‘proper forced sale valuations’. Insofar as the
provision of VAT invoices is concerned, the Applicant simply believes
that it purchased the vehicles from the Respondents and the
latter
promised to provide VAT invoices, which it must now honour.
[15]
Uniform Rule of Court 42 is headed, Variation and Rescission of
Orders and reads as follows:
“
(1)
The court may, in addition to any other powers it may have,
mero
motu
or upon the application of any
party affected, rescind or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
an order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity,
error or
omission;
(c)
an order or judgment granted as the result of a mistake common to the
parties.”
[16]
It is trite that once a court has made a final pronouncement on a
matter, it will subsequently have no authority to correct,
alter, or
supplement it. The rationale behind that general principle
being that it has thereupon become
functus
officio
- its jurisdiction in the case
having been fully and finally exercised, its authority over the
subject-matter has ceased.
See
Firestone
SA (Pty) Ltd v Genticuro Ag
1977 (4) SA 298
(A) at 306F-G.
[17]
Exceptions to the above general principle are the following:
17.1
The order may be supplemented in respect of accessory or
consequential matter such as costs or interest or judgment debt,
which the court inadvertently overlooked;
17.2
The Court may clarify its judgment or order, if, on a proper
interpretation, the meaning thereof remains obscure, ambiguous
or
otherwise uncertain, so as to give effect to its true intention,
provided it does not thereby alter "the sense and
substance" of the judgment or order;
17.3
The Court may correct a clerical, arithmetical or other error in its
judgment or order so as to give effect to its true intention;
17.4
Where counsel has argued the merits and not the costs of a case but
the Court, in granting judgment, also makes an order concerning
the
costs, it may thereafter correct, alter or supplement that order. In
this regard, see again the Firestone case supra at 306G-307H.
[18]
The basic principles applicable to the understanding of documents
also apply to the interpretation of a court's judgment or
order.
The court's intention is to be ascertained primarily from the
language of the judgment or order as construed according
to the
usual, well-known rules. Thus, as in the case of a document,
the judgment or order and the court's reasons for giving
it must be
read as a whole in order to ascertain its intention. If, on
such a reading, the meaning of the judgment or order
is clear and
unambiguous, no extrinsic fact or evidence is admissible to
contradict, vary, qualify, or supplement it. Indeed,
it was
common cause that in such a case not even the court that gave the
judgment or order can be asked to state what is subjective
intention
was in giving it. See
Garlick v
Smartt and Another
1928 AD 82
AT 87 and West Rand Estates Ltd v
New Zealand Insurance Co Ltd
1926 AD 173
AT 188
.
[19]
The Respondents’ assertion that the Applicant has no
locus
standi
as it was not a party to the
urgent proceedings that led to the granting of the order on 5 June
2014, which is now the subject
of this judgment is without merit and
must be rejected. The wording of Rule 42 is unequivocal - it is
‘upon the application
of any party affected’ that can
launch this kind of an application. While the Applicant was not
a party to the proceedings
of 5 June 2014, it is unquestionable that
it was profoundly affected by the order against Xspan Chicken &
Meat CC. Accordingly,
its
locus
standi
to bring these proceedings is
unwavering.
[20]
The order was granted pursuant to comprehensive negotiations between
the parties. In fact it is uncontested that it was
the
Applicant who during those negotiations intransigently insisted on
the current wording of the order. In the circumstances
it is
rather duplicitous to now launch this application claiming that there
was a common error when the order was granted.
The Respondents
were not mistaken when they asked the court to make the draft an
order of court. This Court has pronounced
on the subject and it
is final. The request to vary the order is not one of the
instances covered by Rule 42(1) or the exceptions
to the general
principle and must accordingly fail.
[21]
Turning to the validity of the valuations. The Respondents
might have thought otherwise when they prepared their heads
but
during argument in court their Counsel conceded that the valuations
presented to the Applicant are not proper valuations.
For that
reason, I hold the view that this matter should not detain this Court
for more than is necessary. The Respondents
must obtain proper
valuations for presentation to the Applicant as per the order of 5
June 2014.
[22]
The valuations that must be obtained by the Respondents, however, are
not what the Applicant refers to as ‘proper forced
sale
valuations’. They are to be those that the court ordered
the Respondents to obtain on 5 June 2014 – ‘proper
market
valuations’ it being this Court’s finding that no case
for ‘forced sale valuations’ has been made
by the
Applicant.
[23]
Again, the issue pertaining to the furnishing of VAT invoices is not
one that should occupy this Court for long especially
in the absence
of a replying affidavit. Accepting that the facts are that
Paulo offered to and arranged with Standard Bank
and Wesbank directly
that the outstanding amounts due in terms of the existing finance
agreements are either paid off or re-financed,
I agree that the
Respondents cannot provide Paulo with VAT invoices. Paulo
cannot expect to obtain VAT invoices from the
Respondents when no
money was paid to them other than by Standard Bank and Wesbank.
Paulo has failed to provide proof that
he made payments to the
Respondents for the purchase of the vehicles.
[24]
As though that was not sufficient, Paulo has also not provided copies
of all the finance agreements regarding these specific
vehicles that
were in existence before the liquidation of OUTSPAN CHICKEN &
MEAT CC (in liquidation). In the circumstances,
there is no
basis on which this Court can order the Respondents to issue VAT
invoices for money paid to Standard Bank and Wesbank.
In fact,
it is staggering that the Applicant would demand that such VAT
invoices be furnished by the Respondents when a different
party
received the money. If any party should be ordered to provide
such invoices, it should be Standard Bank and Wesbank.
[25]
In the result, I make the following order:
1.
The documents from Park Village are declared not to be proper
valuations.
2.
The Respondents must secure proper market valuations for the Handmen
& Cummings machines and such valuation must be prepared
by a
registered and sworn valuator.
3.
The Respondent shall represent the sworn evaluations to the Applicant
who will be provided an opportunity to make an offer for
payment of /
or in settlement of the respective items, in particular, the Handmen
& Cummings machines.
4.
The remainder of the prayers contained in the Notice of Motion are
dismissed.
5.
Each party to pay its own costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT: Z OMAR
INSTRUCTED
BY: ZEHIR OMAR ATTORNEYS
COUNSEL
FOR THE RESPONDENTS: ASL VAN WYK
INSTRUCTED
BY: VAN GREUNEN & ASSOCIATES INC
DATE
OF HEARING: 09 MAY 2016
DATE
OF JUDGMENT: 01 AUGUST 2016