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[2016] ZAGPJHC 216
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Boldprops 1110 CC v Automatic Holdings (Pty) Ltd and Another (07946/2016) [2016] ZAGPJHC 216 (5 August 2016)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO 07946/2016
DATE:
5 AUGUST 2016
In the matter
between
BOLDPROPS 1110
CC
.......................................................................................................
APPLICANT
(IN
LIQUIDATION)
And
AUTOMATIC
HOLDINGS (PTY)
LTD
..........................................................
FIRST
RESPONDENT
BLUE
NIGHTINGALE HOLDINGS (PTY)
LTD
.....................................
SECOND
RESPONDENT
J
U D G M E N T
MOOSA
AJ:
[1] During March 2016 the Applicant (the
liquidators) launched an application in which the Applicant sought an
order that the Respondent’s
be directed to render a full
account relating to all monies received by them and a debate of that
account.
[2] The Respondents opposed the main application
and delivered an answering affidavit. In the replying affidavit the
Applicant annexed
(“
GVV15
”)
a written franchise agreement.
[3] The Respondents brought an application to
strike out Annexure “
GVV15
”
to the Applicant’s relying affidavit on the following grounds:
[3.1] That the Applicant had alleged that they
would file a copy of the franchise agreement in a separate bundle,
however this was
not done making it difficult for the Respondent to
identify and respond to the document the Applicant relied on.
[3.2] That the Applicant “seemingly”
relied on the franchise agreement for that allegation that a cession
had occurred,
which allegation the Respondent denied.
[3.3] The Respondent contends that the cession
process was not part of the written franchise agreement and was an
out and out cession.
[3.4] The Applicant’s attachment of the
written franchise agreement in reply was thus an attempt to seek to
establish its
principle case in reply and to preclude the Respondents
from answering thereto, thereby placing the burden on the Respondents
to
apply for leave to file a further affidavit.
[3.5] That the Applicant is not entitled to
“attempt to present new evidence in reply to supplement lacunas
in the case presented
in the Applicant’s founding affidavit”.
[4] In response the Applicant contended:
[4.1] That it
made specific mention in its founding affidavit that the First
Respondent is contractually obliged to account to the
Applicant in
terms of “the franchise agreement”.
[1]
[4.2] That in the Respondent’s answering
affidavit, the Respondent denied that in terms of the franchise
agreement, it was
not contractually obliged to account to the
Applicant in respect of money recovered on the Applicant’s
behalf in terms of
the provisions of the Companies Act, 1973 and the
Insolvency Act 1936
, accordingly the Respondent’s knew exactly
the terms of the franchise agreement.
[4.3] That in the Respondent’s replying
affidavit, it was stated that the franchise agreement contains no
reference to such
a cession that it was later stated that the
franchise agreement is the document sent to the Applicant’s
attorneys by the
Respondent’s attorneys and that this is a
document produced by the First Respondent.
[4.4] That the Respondents could not have availed itself of the
provisions of Rule 35(12) of the Uniform Rules of Court and that
the
reason that they did not do so was because they had the franchise
agreement in the first place.
[5] Having regard to the above and the relevant
authorities cited, I am of the view that, the Respondents have not
been prejudiced
by the non-attachment of the franchise agreement to
the Applicant’s founding Affidavit as by their own admission
they have
denied accountability to the Applicant based on the terms
of the franchise agreement, moreover what is most telling, is that
the
Respondents were the authors of the franchise agreement.
[6] The allegation that by annexing the franchise
agreement to the answering affidavit, thus causing the Respondent the
burden of
applying for leave to supplement its Answering affidavit
cannot be sustained as the Applicant in its answering affidavit
clearly
stated that it would have no objection to the Respondents
filing a further Affidavit should it be allowed to do so.
[7] The contention that the Respondents in their
replying affidavit attempted to supplement its founding affidavit is
accordingly
not sustainable as the Respondent was merely replying on
a defence raised by the Applicant. The existence and nexus of the
franchise
agreement having been premised already in the Applicant’s
founding affidavit. [Notwithstanding its failure to file the
franchise
agreement in a separate bundle.]
[8] The application to strike out is accordingly dismissed with the
Respondents to pay the costs of such application.
T.MOOSA
ACTING JUDGE
OF THE HIGH COURT
COUNSEL FOR
THE APPLICANT Adv M.A. Kruger
COUNSEL
FOR THE RESPONDENTS:
Adv.
J. Nel
DATE
OF HEARING:
1
August 2016
DATE OF
JUDGMENT:
5
August 2016
[1]
Para 10.1 of the founding affidavit (page 8)