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[2019] ZAGPJHC 383
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Trustees for the Time Being of Roshen and Komarie Family Trust and Others v Business Partners Limited (28839/2016) [2019] ZAGPJHC 383 (10 October 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 28839/2016
In
the matter between:
THE
TRUSTEES FOR THE TIME BEING OF
ROSHEN
AND KOMARIE FAMILY TRUST &
3
OTHERS
Applicant
And
BUSINESS
PARTNERS
LIMITED
Respondent
J
U D G M E N T
MODIBA
J
INTRODUCTION
[1]
This is an opposed application for the rescission of a warrant of
execution the Registrar of this court issued on 6 June 2018
("the
warrant of execution"), in favour of the respondent.
BACKGROUND
FACTS
[2]
On or about 6 September 2016, the applicants and the respondent
entered into a settlement agreement which prescribed time periods
for
payment. In terms of the settlement agreement, the applicants would
make payments to the respondent by the 29
th
day of each
month and send the proof of payment within a day of such payment. On
10 October 2016, the settlement agreement was
made an order of court.
[3]
The respondent sought and obtained the warrant of execution on the
basis that the applicants breached the parties’ settlement
agreement. The applicants deny that they breached the settlement
agreement. It is on that basis that they seek a rescission of
the
warrant of execution. The respondent is adamant that the applicant
breached the settlement agreement and that it was entitled
as it did,
to obtain the warrant of execution and to attach movable assets at
the applicants' premises.
THE
ISSUES TO BE DECIDED
[4]
From the above, it follows that the following issues stand to be
decided:
4.1 whether or not the
applicants breached the settlement agreement as the respondent
alleges;
4.2 whether the
applicants make out a case for the warrant of execution to be
rescinded.
THE
APPLICABLE LEGAL PRINCIPLES
[5]
The legal principles set out below are applicable to the issues that
arise between the parties:
5.1 the court may, on
good cause shown, set aside a warrant of execution;
[1]
5.2 to determine whether
a party has shown good cause, the court considers all factors which
had a bearing on the issuing of the
warrant of execution and
effecting the proper administration of justice;
[2]
APPLICATION
OF THE PRINCIPLES TO THE FACTS
[6]
Clause 3 of the settlement agreement provides that:
“
In the event of
a breach of this agreement, set out below, which is not remedied
within 7 (seven) days after the defendants have
received notice of
the breach, the full outstanding balance for which the plaintiff has
issued summons, less any payments received,
will immediately become
due and payable and the plaintiff will be entitled to proceed with
execution steps without further notice
to the defendants under the
following circumstances ...
3.1
If any instalment is not received timeously on the due date thereof.
"
…
3.3
"The defendants are only allowed to breach the agreement on
three occasions. Accordingly, the defendants will only receive
three
notices to remedy a breach. Should a breach occur on a fourth
occasion, the plaintiff shall immediately be entitled to proceed
with
execution steps, i.e. obtaining judgment on the confession to
judgment and to proceed with execution steps to sell the immovable
properties in execution, without notice to the defendants."
[7]
The interpretation of this clause is not in dispute.
[8]
I find that the applicants breached the agreement three times as
alleged by the respondent and that under the circumstances,
the
respondent was entitled to have the warrant of execution issued.
[9]
The respondent notified the applicants of the first breach on 9
October 2017, when its attorney of record, Jacobs, delivered
a letter
informing to the latter’s attorney of record, Andraos, that his
clients have failed to comply with the prescribed
terms of the
settlement agreement in that they had failed to make payment for the
August instalment timeously and did not send
the proof of payment as
required. Further, it failed to make the September 2017 payment or if
made, to send the relevant proof
of payment. Jacobs recorded these
breaches to constitute the first breach of the settlement agreement
in accordance with clause
3.3. Andraos did not respond to this
correspondence.
[10]
The respondent notified the applicants of the second breach on 12
December 2017, when Jacobs informed Andraos that his clients
were
once again in breach in that payments, as per Andraos’s email
of 1 December 2017, and the proof thereof, were not made
on or before
the 29
th
day of every month, thereby placing the
applicants in breach of the settlement agreement for the second time.
Jacobs further reiterated
that the first breach was already
communicated on 9 October 2017.
[11]
On or about 22 May 2018, Jacobs recorded the third breach which
demonstrated that the applicants continued to make payments
late and
still failed to send their proof of payment in accordance with the
prescribed terms of the settlement agreement. Jacobs
warned the
applicants that as a result of their third breach, they were given 7
days to remedy it, failing which the respondent
would proceed
immediately with legal action. On 4 June 2018, Andraos delivered
proof of the applicant’s payment. It depicted
that all payments
that were due for April 2018, were effected later than the monthly
due date. Jacob concluded that the applicants
were indeed in breach
of the settlement agreement as they failed to remedy their breach
within 7 days.
[12]
The respondent contends that the third aforesaid breach entitled it
to have the warrant of execution issued without further
notice to the
applicant in terms of clause 3.3 of the settlement agreement.
[13]
The applicants do not dispute the instances of breach as contended by
the respondent, except the first and the last breach.
[14]
They contend that when the respondent notified them of the first
breach, their payments were up to date. This does not detract
from
the fact that they failed to make the relevant payment by the 29
th
and to dispatch the proof of payment within a day as required in
terms of the settlement agreement.
[15]
They also contend that the respondent failed to send notices of
breach to the given email address. This ground of opposition,
under
the present circumstances is a red-herring. On 6 October 2017, the
applicant’s attorney informed Jacobs that one Ryan
Merrifield
was no longer in its employ, and that all future correspondences
should be sent to his replacement Andraos. This was
done. Jacobs
delivered the last letter to the second applicant's email address and
copied-in his attorney of record.
[16]
At no point did the applicants take issue with the service of notices
of breach but proceeded to make payments and to send
proof of
payments to remedy the breach in all three instances, thereby
acknowledging receipt of the respective notices of breach,
despite
not having been sent to the given email address. This signifies that
the purpose of the notice of breach had been attained.
No further
purpose would be served under these circumstances to insist that
notices ought to have been sent to the applicants.
[17]
In respect of the last breach, the applicants also dispute the
computation of the 7 days within which they had to remedy the
breach,
contending that they did so timeously. There is no merit to this
contestation. They were given notice on 22 May 2018. They
made
payment on 31 May 2018 and another on 1 June 2018. The latter payment
was made more than 7 court days. They therefore failed
to make
payment within the required period. Under these circumstances, the
respondent was entitled as it did, to proceed to have
the warrant
issued.
CONCLUSION
[18]
Our courts have consistently upheld the contractual freedom of the
parties.
[3]
Under these
circumstances, I find that the respondent was entitled to proceed
legally as it did. The applicants have failed to
show cause why the
warrant of execution ought to be set aside. Therefore the application
stands to be dismissed with costs.
COSTS
[19]
The respondent seeks costs
de
bonis propriis
against the applicants in their representative capacity. At
common law, a party who litigates in a representative capacity
(such
as a trustee) cannot be ordered to pay the costs de
bonis
propriis
unless he or she has been guilty of improper conduct.
[4]
It may be also ordered to pay such costs where there is a want of
bona
fides
on its part or if it acted with gross negligence.
[5]
[20]
The respondent makes no case for improper conduct, gross negligence
or lack of
bona fides
on the part of the applicants. That the
applicants did not retract their prayer for costs
de bonis
propriis
against the respondent’s attorneys when the
respondent demanded that they do so does not entitle the respondent
to such costs.
[21]
In the premises, the following order issues:
ORDER
1.
The application is dismissed with costs.
__________________________
MADAM
JUSTICE
L T MODIBA
JUDGE
OF THE HIGH COURT,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARENCES
Counsel
for applicant: Advocate F Saint
Attorney
for applicant: Morgan Attorneys
Counsel
for first respondent: Advocate N Alli
Attorney
for first respondent: Mendelow Jacobs Attorneys
Date
of hearing: 28 May 2019
Date
of judgment: 10 October 2019
[1]
Mynhard
v Mynhardt
1986 (1) SA 456
(T) at 463 G;
Chasen
v Ritter
1992 (4) SA 373
(SE) at 328 – 329.
[2]
Madinda
v Minister of Safety and Security
2008(4) SA 312 (SCA)
[3]
See
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at para 57
[4]
Cooper
NO v First National Bank of South Africa Limited
2001(3) SA 705 (SCA) at 706 D.
[5]
Blou v
Lampert and Chipkin NNO and Others
1973 (1) SA 1
(A) at 3 F and G.