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[2021] ZAGPJHC 91
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Trans Kalahari Group (Pty) Limited and Another v Paramount Trailers (Pty) Limited (44600/2020) [2021] ZAGPJHC 91 (18 January 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO
:
44600/2020
DATE
:
18
th
JANUARY 2021
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
In the matter between:
TRANS
KALAHARI GROUP (PTY)
LIMITED
First
Applicant
TRANS
KALAHARI LOGISTICS SA (PTY) LTD
Second
Applicant
and
PARAMOUNT
TRAILERS (PTY)
LIMITED
Respondent
Coram:
Adams
J
Heard:
15
January 2021 – The ‘virtual hearing’
of this urgent
application was conducted as a videoconference on the
Microsoft
Teams
digital platform.
Delivered:
18
January 2021 – This judgment was handed down electronically by
circulation
to the parties' representatives by email, by being
uploaded to the
CaseLines
system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be 11H00 on 18
January 2021.
Summary:
Urgent
application – vindicatory relief –
factual dispute
–respondent’s version cannot and should not be rejected
on the papers – urgency not proven –
application struck
from the roll –
ORDER
(1)
The
applicants’ urgent application is struck from the Urgent Court
roll due to lack of urgency.
(2)
The
first and second applicants, jointly and severally, the one paying
the other to be absolved, shall pay the respondent’s
costs of
this urgent application.
JUDGMENT
Adams J:
[1].
The
second applicant, Trans Kalahari Logistics South Africa (Pty) Limited
(‘Trans Kalahari Logistics SA’), carries on
business as a
transportation and logistics company and operates a fleet of trucks
and trailers cross-border between South Africa,
Zambia and the DRC.
The first applicant, Trans Kalahari Group (Pty) Limited (‘TKG’),
is the Namibian Holding Company
of Trans Kalahari Logistics SA. The
respondent, Paramount Trailers (Pty) Limited (‘Paramount
Trailers’), carries on
business manufacturing, selling and from
time to time leasing commercial trailers from its business premises
in Midvaal. The respondent
is in possession of the trailers, which
form the subject of the applicants’ vindicatory claim in this
application, but not
of the trucks, which is in possession of a
related, but a distinct and separate company, namely Paramount Trucks
(Pty) Limited
(‘Paramount Trucks’), which carries on its
business selling and leasing of commercial trucks in close proximity
to
but different from the respondent’s business premises. I
shall refer to the latter two entities collectively as ‘Paramount’.
[2].
The
applicants and Paramount have been in a business relationship for a
considerable period of time during which time the applicants
purchased and hired from Paramount the trucks and trailers utilised
by Trans Kalahari Logistics SA in their transportation business.
Trans Kalahari Logistics SA also conducts its business from a small
administrative office at Paramount’s business address
in
Midvaal and they were permitted to park their trucks and trailers at
the premises of Paramount at an agreed fee of R350 per
day.
[3].
In
this opposed urgent application, based partly on the
rei
vindicatio
and
partly on specific performance, the applicants apply for the return
of 39 trucks and 48 trailers, presently in the possession
of
Paramount. Of the 39 trucks, 22 are owned by the applicants, having
been bought from Paramount and other dealerships, and 17
are owned by
Paramount – these 17 trucks were sold to the applicants during
2018, but pending payment of the purchase price
of these trucks the
agreement between the parties was that the applicants would lease
them from Paramount at an agreed rental payable
on a monthly basis by
the applicants to Paramount. The parties labelled these agreements as
‘rent to buy’ contracts.
Of the 48 trailers, 35 are owned
by the applicants, having been bought from Paramount, and 13 are
owned by Paramount – these
13 trailers similarly were sold to
the applicants during 2018 in terms of ‘rent to buy’
agreements, and pending payment
of the purchase price of these
trailers, which the applicants were hoping to have financed by a bank
or some other Finance House,
the agreement between the parties was
that the applicants would lease the trailers from the Paramount at an
agreed rental payable
on a monthly basis by the applicants to
Paramount.
[4].
The
22 trucks and 35 trailers owned by the applicants, which had been
paid for in full by them as and at the end of January 2020,
were
purchased for the total purchase price of approximately R40 million,
which, in my view, is an indication of the approximate
value of these
assets belonging to the applicants.
[5].
On
the other hand, the purchase consideration payable by the applicants
in respect of the trucks and trailers presently still owned
by
Paramount totals approximately R41 million. From March 2018 / April
2019 the applicants had the use of these trucks and trailers
on the
understanding that the applicants would pay the purchase price of
about R40 million as soon as they were able to raise the
necessary
funds to finance the deals. This was not to be as the finance
agreements did not materialise. Furthermore, the applicants,
according to Paramount, also fell into arrears with their monthly
rental, the last payment having been received in February 2019.
In
these circumstances, it is difficult to understand on what basis the
applicants, who are in breach of the arrangement with Paramount
in
that they have failed to come up with the purchase price in respect
of the 17 trucks and 13 trailers, can claim delivery of
these trucks
and trailers. Moreover, the applicants are in arrears with payment of
the monthly rental payable in the interim and
until such time as the
purchase and sale of these assets were finalised. The applicants’
claim for specific performance in
respect of these trucks and
trailers is ill-advised.
[6].
Paramount
Trailers oppose the application by the applicants on a number of
grounds, including on the basis that Paramount Trucks,
which is not
before Court, should have been joined in these proceedings. In light
of my findings below relating to the other grounds
of opposition, it
is not necessary for me to deal with this issue. The point is that,
even if Paramount Trucks had been joined
in these proceedings, the
application would still have failed for the reasons dealt with below.
[7].
Paramount
also opposes the application on the basis that there is no urgency
and on the basis of the merits of the application.
These two aspects
of the matter are inter-related in that if the version of the
applicants are accepted, then the application is
urgent. Conversely,
if the facts as averred by Paramount are accepted, then the
application is not urgent.
[8].
Prior
to the issue of the urgent application by the applicants the parties
were engaged over an extended period with regard to the
release of
certain of the trucks and trailers to the applicants. The applicants
are indebted to Paramount for a substantial sum
of money in respect
of the arrear rental, commission payable, repairs and maintenance,
parking and the purchase price in relation
to the 17 trucks and 13
trailers which the applicants had purchased from Paramount. This
debt, according to Paramount, amounts
to over R60 million.
[9].
The
applicants claim return of the trucks and trailers on the basis that
Paramount is in unlawful possession thereof. This is denied
by
Paramount, who alleges that during early July 2020 there were
discussions between the parties about the prior representations,
the
defaults on payment and the impact of the Covid-19 pandemic on the
business of the second applicant. The applicants indicated
that the
first applicant was not able to make any payments to Paramount. It
was then proposed by the applicants that, as security
for the amounts
owed by the applicants to Paramount, the entire fleet of trucks and
trailers would be retained by Paramount in
its possession and under
its control at the Midvaal premises. This retention would have
served, so it was understood by all concerned,
as security for the
amounts owed to Paramount until the applicants obtained a funding
facility.
[10].
The
amounts due at the time by the applicants to Paramount included
monthly rental arrears of over R13 million, the outstanding
sale
price of about R50 million for the Paramount vehicles, as well as the
VAT liability.
[11].
This
proposal, so Paramount avers, was orally accepted by it, resulting in
a ‘fleet retention agreement’ being concluded
between the
applicants and Paramount, in terms of which the entire fleet of
vehicles would be retained in the possession of Paramount
and would
serve as security in favour of Paramount for amounts due. This, so
Paramount contends, explains why all of the trucks
and trailers which
the applicants claim should be returned to them, were parked at the
premises of Paramount in Midvaal. The applicants
however suggest that
this was no more than an incident of the agreement in terms of which
Paramount allowed the applicants to park
the trucks and trailers at
the premises of Paramount and that the second applicant would pay
rental to the respondent.
[12].
It
is clear that the main dispute between the parties is a factual one.
The question is this: Which one of the two versions is to
be
accepted? In deciding that question, it should be borne in mind that
this is an application for final relief and factual disputes
are to
be decided on the basis of the principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Limited
,
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[13].
The
general rule is that a court will only accept those facts alleged by
the applicants which accord with the respondent's version
of events.
The exceptions to this general rule are that the court may accept the
applicants’ version of the facts where the
respondent's denial
of the applicant's factual allegations does not raise a real,
genuine, or
bona
fide
dispute
of fact. Secondly, the court will base its order on the facts alleged
by the applicant when the respondent's version is
so far-fetched or
untenable as to be rejected on the papers.
[14].
In
Room Hire
Co (Pty) Limited v Jeppe Mansions (Pty) Ltd
,
1949 (3) SA 1155
(T0, it was held that:
‘
A
bare denial of applicant's material averments cannot be regarded as
sufficient to defeat applicant's right to secure relief by
motion
proceedings in appropriate cases. Enough must be stated by respondent
to enable the Court to conduct a preliminary investigation
... and to
ascertain whether the denials are not fictitious and intended merely
to delay the hearing.'
[15].
It
is necessary to adopt a robust, common-sense approach to a dispute on
motion. If not, the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
A Court should not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavits.
[16].
The
applicants submit that the version of the respondent, which the
applicants deny on the basis that no
fleet
retention agreement
was
concluded or authorised, should be rejected on the papers presumably
on the basis that same is ‘so far-fetched or untenable
as to be
rejected on the papers’. Mr Hollander, Counsel for the
applicants, submits that this conclusion can and should be
drawn from
the fact that this version, as a defence, is raised for the first
time in the answering affidavit. None of the correspondence
preceding
the application, so the applicants contend, refers to the alleged
fleet retention agreement.
[17].
Additionally,
so it is argued by Mr Hollander, the alleged agreement makes no
commercial sense. With the applicants’ entire
fleet placed in
the hands of the respondent, how would the applicants have conducted
its business if its fleet was not operating
and how would it have
been able to repay its debts to the respondent, asked the applicants
rhetorically. There is also no indication
regarding the details of
the terms agreed upon as to how the respondent would perfect its
security. This version, so the applicants
contend further, is at
variance with a previous story where the respondent asserted that it
was entitled to be in possession of
the trucks and trailers in terms
of which a
lien
for work done in
respect of those vehicle. There would be no need for the respondent
to assert a
lien
if the alleged
retention agreement was in place, so the argument is concluded.
[18].
I
disagree with these contentions. At the relevant time the applicants
were indebted to Paramount for amounts in excess of R60 million.
It
makes eminent sense that Paramount would require that the debt be
secured and what better way to do that than to take possession
of the
assets of the applicants. Paramount had threatened to repossess all
of its trucks and trailers and it is understandable
that the
applicants, rather than to lose some of their vehicles, would pledge
all of the trucks and trailers whilst still trying
to come up with
the funds to settle their debt with Paramount. Paramount had already
in June 2020 threatened re-possession of the
vehicles due to
non-payment.
[19].
I
agree with the submissions by Mr Subel SC, who appeared on behalf of
the respondent, that the respondent’s version is neither
improbable nor far-fetched and must prevail in motion proceedings for
final relief.
[20].
Mr
Subel also submitted that this application was launched strategically
and cynically by the applicants, in the middle of the annual
vacation
period and unjustifiably seeking enrolment on the urgent roll. I
agree. The trucks and trailers sought to be recovered
have been in
the lawful possession of Paramount since mid-2020 in terms of a
contractual arrangement aimed at affording Paramount
security for its
legitimate claims against the applicants for a sum in excess of
R65 million owed to it. Having failed to
negotiate a release of
a limited number of trucks, the applicants launched this application
for which no sustainable legal basis
has been laid.
[21].
If
regard is had to the evidence before me as a whole, it cannot be said
that the version of the respondent is so far-fetched that
it can be
rejected on the papers. It follows that the applicants are not
entitled to the relief claimed or to claim that relief
on an urgent
basis. At best for the applicants, there are factual disputes, and if
those disputes are not at this stage decided
in favour of the
applicants, it means that they have not demonstrated that the matter
is urgent.
[22].
In
any event, even on the applicants’ own version, Paramount has
been in possession of their trucks and trailers from about
July 2020
and they do not explain why attempt were not made earlier to regain
possession thereof. I am therefore not convinced
that the applicants
have passed the threshold prescribed in Uniform Rule of Court 6 (12)
(b) and I am of the view that the application
ought to be struck from
the roll.
[23].
Accordingly,
the applicants’ urgent application stands to be struck from the
urgent court roll.
Costs
[24].
The
general rule in matters of costs is that the successful party should
be given his costs, and this rule should not be departed
from except
where there are good grounds for doing so. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[25].
I
can think of no reason why I should deviate from this general rule.
[26].
Mr
Subel has also urged me to grant a punitive costs order on the scale
as between attorney and client to show the court’s
displeasure
with the conduct on the part of the applicants. I am not persuaded
that in this matter a case has been made out for
punitive costs.
[27].
I
therefore intend awarding cost against the first and second
applicants in favour of the respondent.
Order
Accordingly,
I make the following order: -
(1)
The
applicants’ urgent application is struck from the Urgent Court
Roll due to lack of urgency.
(2)
The
first and second applicants jointly and severally, the one paying the
other to be absolved, shall pay the respondent’s
costs of this
urgent application.
L R ADAMS
Judge of the High
Court
Gauteng Local
Division, Johannesburg
HEARD
ON: 15
January 2020 – in a ‘virtual hearing’ during a
videoconference on the
Microsoft Teams
digital platform
JUDGMENT
DATE: 18
th
January 2021 – judgment handed down electronically
FOR THE
APPLICANT: Adv
L Hollander
INSTRUCTED
BY: DM5
Inc, Sandton
FOR THE
RESPONDENT: Advocate
A Subel SC
INSTRUCTED
BY: Fluxmans
Incorporated, Rosebank, Johannesburg