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[2021] ZAGPJHC 14
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Stephane Trading Import (Pty) Limited v Manica South Africa (Pty) Limited and Anothe (44594/2020) [2021] ZAGPJHC 14 (19 January 2021)
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
Date:
19
th
January 2021
CASE
NO
:
44594/2020
DATE
:
19
th
JANUARY 2021
In the matter between:
STEPHANE TRADING
IMPORT (PTY) LIMITED
Applicant
and
MANICA
SOUTH AFRICA (PTY)
LIMITED
First Respondent
REDDY
CARGO
SERVICES
Second 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:
19 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 19 January 2021.
Summary:
Urgent application – reconsideration
application in terms of rule 6 (12) (c) –
factual
dispute – respondent’s version cannot and should not be
rejected on the papers – order set aside –
ORDER
(1)
The Order of this
Court of the 30 December 2020 by Makume J be and is hereby
reconsidered in terms of Uniform Rule of Court 6 (12)
(c), set aside
and replaced with the following order: -
‘
1.
The applicant’s urgent application be and is hereby dismissed,
with costs.
2.
The applicant shall pay the first respondent’s costs of this
ex
parte
urgent application, including the costs consequent upon the
employment of a Senior Counsel.’
(2)
The applicant
shall pay the first respondent’s costs of this application in
terms of rule 6 (12) (c), including the costs
consequent upon the
employment of a Senior Counsel.
JUDGMENT
Adams J:
[1].
As its name
suggests, the applicant, Stephane Trading Import (Pty) Limited
(‘Stephan Trading Import’), carries on business
as an
importer and exporter of goods, in which it also trades. The first
respondent, Manica South Africa (Pty) Limited (‘Manica
SA’),
is a provider of transportation and warehousing services and conducts
business as a clearing and forwarding agent and
as a warehouseman.
The business and contractual relationship between Stephane Trading
Import and Manica SA was at the relevant
time governed by the
Standard Trading Conditions of Manica, to which I shall revert later
on in this judgment.
[2].
On 2 April
2019 Stephane Trading Import instructed Manica SA to custom clear at
the Zambian border and to import to South Africa
a consignment of
about 266.6 metric tonnes of Zinc Ore Fines and then to store it in a
special customs and excise warehouse referred
to as an ‘SOS
Bond Store’. Manica SA was therefore required to import from
Zambia into South Africa the Zinc and to
warehouse and store the
goods on its arrival in South Africa, as well as attend to the
related logistics and other administrative
and regulatory
requirements.
[3].
Whilst so
stored Stephane Trading Import would then have had access to its
goods and would have started the process of marketing
and selling the
wares. Whilst this process was ongoing the goods of Stephane Trading
Import was stored by Manica – initially
at its own SOS Bond
Store at Freightnamics and later transferred to the SOS Bond Store of
the second respondent, still by Manica
on behalf of Stephane Trading.
By the 8 November 2019 an account had been run up for an amount of
R94 691.10 payable by Stephane
Trading Import to Manica in
respect of storage and other related charges and this sum remained
outstanding notwithstanding numerous
demands for payment by Manica.
By 15 November 2019 this amount had grown to R153 216, with
still no payments forthcoming from
the applicant. By July 2020 the
applicant’s admitted indebtedness to the first respondent was
standing at R303 182.60.
[4].
Despite
numerous demands and requests by Manica SA for payment of these
amounts due, Stephane Trading Import, whose goods remained
in storage
and under the control of Manica, failed to effect payment of its
admitted indebtedness to Manica. Instead of paying
the amount
claimed, Stephane Trading Import, when faced with threats by Manica
that it would proceed to sell the goods to defray
its expenses and
recover its charges, during December 2020, after its goods had been
stored by Manica SA for a period of about
twenty months, stole a yard
on Manica and obtained an
ex
parte
order in terms of which it (Manica) was interdicted from disposing of
the Zinc.
[5].
What is
presently before me is an urgent application by Manica in terms of
the provisions of Uniform Rule 6 (12) (c) for reconsideration
of the
order granted
ex
parte
on
an urgent basis by this Court (Makume J) on the 30 December 2020. In
terms of Makume J’s order a
rule
nisi
was
issued, returnable on 28 January 2021, in terms of which the
first
and second respondents were interdicted from moving or transporting
the applicant’s goods in their storage facilities
without the
applicant's permission. The respondents were also ordered to grant
the applicant access to the storage facilities to
assess and sample
the goods.
[6].
When the
matter came before me on the 13 January 2021, Manica SA had by then
filed its answering affidavit, which also doubled as
its founding
affidavit in support of this Rule 6 (12) (c) application for
reconsideration of the Court Order of the 30 of December
2020. I am
therefore required to adjudicate this application in terms of Rule 6
(12) (c) on the basis of all of the affidavits
filed off record on
behalf of the parties.
[7].
Uniform Rule 6
(12) (c) provides as follows:
‘
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order.'
[8].
In relation to
Rule 6 (12) (c) the Court (Farber AJ) in
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC and Others
,
1996 (4) SA 484
(W) at 487B, had this to say:
‘
The
framers of Rule 6 (12) (c) have not sought to delineate the factors
which might legitimately be taken into reckoning in determining
whether any particular order falls to be reconsidered. What is plain
is that a wide discretion is intended. Factors relating to
the
reasons for the absence of the aggrieved party, the nature of the
order granted and the period during which it has remained
operative
will invariably fall to be considered in determining whether a
discretion should be exercised in favour of the aggrieved
party. So,
too, will questions relating to whether an imbalance, oppression or
injustice has resulted and, if so, the nature and
extent thereof, and
whether redress can be attained by virtue of the existence of other
or alternative remedies. The convenience
of the protagonists must
inevitably enter the equation. These factors are by no means
exhaustive. Each case will turn on its facts
and the peculiarities
inherent therein.’
[9].
In my
assessment of the facts in this matter I have had regard to all of
the affidavits filed by all of the parties involved in
this matter.
In that regard, I am guided by the dictum in
Oosthuizen
v Mijs
2009 (6) SA 266
(W) in which Wepener J adopted the view (at
267E) that '(t)o hold that the court is confined only to the original
application
without reference to anything else is in conflict with
various decisions on this point'. See in this regard
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC and Others
,
1996 (4) SA 484
(W) ([1996]
4 All SA 58)
at 486H – 487D); see
also
National
Director of Public Prosecutions v Braun and Another,
2007
(1) SA 189
(C)
(2007 (1) SACR 326
;
[2007] 1 All SA 211).
Wepener J
went on to state in the Oosthuizen case at 269I – J, that:
'I
am of the view that a court that reconsiders any order should do so
with the benefit not only of argument on behalf of the party
absent
during the granting of the original order but also with the benefit
of the facts contained in affidavits filed in the matter.'
[10].
In
The
Reclamation Group (Pty) Ltd v Smit and Others
,
2004 (1) SA 215
(SE) full sets of affidavits were delivered dealing
with the facts upon which the reconsideration of the matter was done.
Froneman
J stated at 218D – F as follows:
'The
result of all of this is that the reconsideration of the matter needs
to be done on the basis of a set of circumstances quite
different to
that under which the original ex parte order was obtained.
Reconsideration need not always take this form but Rule
6 (12) (c) is
widely formulated and in my view permits a reconsideration in this
manner. . . .'
[11].
I am in
agreement with the views expressed by Wepener J and I interpret his
comments as authority for the proposition that the applicants
are
entitled to place additional facts and matter before the Court in the
reconsideration application, which ought properly to
have been placed
before the court when the matter was originally presented. The
Oosthuizen case
supra
,
with which I agree, expressly supports the function and the purpose
of rule 6 (12) (c), which is the fundamental principle of
natural
justice —
'audi
alteram partem'
.
I place reliance on the
Oosthuizen
case as authority especially in view of the fact that the
respondents, who were absent when an urgent order was granted, placed
relevant factual matter on affidavit before the court reconsidering
the previous order.
[12].
Also, when
dealing with factual allegations which are not common cause between
the parties I will follow the well – known
approach to be taken
in opposed motion proceedings where factual disputes arise as set out
in
Plascon
– Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634. The question in that context is whether the
facts averred in the respondents’ affidavits which have been
admitted
by the applicants, together with the facts alleged by the
applicants, justify the order sought. In other words, the court is
bound
by the facts in the respondents’ affidavit that the
applicants admit, and the facts deposed to by applicants, unless they
are so far – fetched or clearly untenable that the court is
justified in rejecting them on the papers.
[13].
Manica SA
contends that the order granted by this Court on the 30 December 2020
stands to be set aside on procedural grounds in
that Stephane Trading
Import improperly obtained the
ex
parte
order.
Secondly
,
Manica SA
contends that the order should be reconsidered and set aside on the
merits of the application.
[14].
In light of my
findings relating to the merits of the application brought by
Stephane Trading Import, it is not necessary for me
to deal with the
procedural defects in the said application. Suffice to say that, in
my view, there is merit in the contention
by Manica SA that there was
no basis in fact or law for the applicant to have proceeded against
it
ex parte
and without notice. I agree that the applicant abused the
ex
parte
procedure
by failing to make full disclosure of all the relevant facts.
Importantly, the applicant conveniently omitted to apprise
the court
of the substantial dealings and disputes that the parties had engaged
in over an extended period of almost two years
during their
contractual relationship. So, for example, the applicant failed to
mention in its founding papers that it had on a
number of occasions
acknowledged that it owed substantial amounts to the first respondent
and that it had failed to settle its
debt to the first respondents
notwithstanding undertakings on many occasions to do so. Crucially,
the applicant failed to draw
to the attention of the court the fact
that the first respondent had claimed that it had a contractual right
to dispose of the
goods to recoup its charges and related expenses.
[15].
However, the
main dispute in this matter between the parties relates to the
Standard Trading Conditions, which govern the relationship
between
Stephane Trading Import and Manica SA. I say that this is a dispute,
although I should hasten to add that, if regard is
had to the
evidence before me, it may very well be that the dispute exists only
in the mind of the applicant.
[16].
The standard
terms and conditions that governed the relationship between the
parties – at the very least on the first respondent's
version –
contained provisions which permitted the first respondent to sell the
goods in the event of the applicant being
in default of its
obligations.
[17].
It therefore
follows that the applicant has not made out a case entitling it in
law to an interdict to stop the first respondent
from dealing with
the goods. There can be no doubt that the first respondent has an
enforceable right to deal with the applicant’s
property in a
manner as contemplated by the written contract between them.
[18].
The current
state of our law is clear. In the case of movables, the real right of
pledge, while entitling the pledgee to look to
the encumbered asset
for the satisfaction of his or her claim, does not automatically
enable him or her to achieve this end by
selling the pledged object
out of hand and applying the proceeds towards the extinction of the
principal obligation. In principle,
the pledgee may realise his or
her security only through the medium of officers of the court
pursuant to a court order.
[19].
However, that
general position does not apply where the pledge contains a provision
which sanctions
parate
executie
,
that is the right to execute against the pledged property without
recourse to the mechanism of the court. Such a provision is
valid and
enforceable in law, and entitles the pledgee to sell the movable
property without recourse to the court in the event
that the pledgor
is in default. In that regard, see
Bock
v Duburoro Investments Pty) Ltd
2004 (2) SA 242
(SCA) at para [15]. The decision in
Bock
was applied to materially identical contractual provisions in the
unreported decision of this Court (per Molahlehi J) in
C
Steinweg Logistics (Pty) Ltd v Darier Alloy CC
(2019/14315) [2020] ZAGPJHC8 (17 January 2020).
[20].
Clause 38 of
the Standard Trading Conditions (STC’s) which are applicable
between the parties contains a provision that expressly
sanctions
parate
executie
.
That provision permits the first respondent to sell the goods by
private treaty, without recourse to the court, in circumstances
where
the applicant has been in default for fourteen days, and the first
respondent has given notice to the applicant that the
goods ‘are
being detained’.
[21].
The applicant
acknowledged that it was indebted to the first respondent, and that
it had been in default for well over fourteen
days – in fact it
was more than fourteen months. The first respondent had on a number
of occasions given the applicant notice
that it was exercising its
lien
over the goods and would sell them if the applicant did not discharge
its obligations to the first respondent.
[22].
The first
respondent then duly exercised its contractual rights, and sold the
goods to a third party on or about 19 December 2020.
It was entitled
to do so, and the contractual provisions entitling it to do so are
valid and enforceable in law.
[23].
Mr McNally SC,
Counsel for the first respondent, submitted that the applicant is
wrong in law when it takes the position in its
founding papers that,
since it was the owner of the goods, the first respondent was not
entitled to sell them without its permission.
The first respondent
was in fact permitted to exercise its rights of
parate
executie,
and
the applicant was not entitled to an order preventing it from doing
so. I agree. From a factual point of view – applying
Plascon
Evans
–
the applicant’s relationship with the first respondent was
governed by the STCs which incorporated a
parate
executie
.
That, in my judgment, is the end of the applicant’s case.
[24].
Those STCs,
duly signed on behalf of the applicants, were sent by it to the first
respondent on 20 September 2018 as being the applicable
STCs. Those
facts are not denied by the applicant, save to the extent that the
deponent to the applicant's replying affidavit says
that he does not
know what happened at the relevant time.
[25].
Therefore, the
ex parte
order
falls to be set aside or discharged on the merits.
[26].
Accordingly,
the urgent interim order granted by Makume J on the 30 December 2020
should be reconsidered and replaced with an order
dismissing the
applicant’s urgent application.
Costs
[27].
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.
[28].
I can think of no reason why I
should deviate from this general rule.
[29].
Mr McNally 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 applicant. I am not persuaded that in this matter a case
has been made out for
punitive costs.
[30].
I therefore intend awarding cost
against the applicant in favour of the respondent.
Order
Accordingly,
I make the following order: -
(1)
The Order of this
Court of the 30 December 2020 by Makume J be and is hereby
reconsidered in terms of Uniform Rule of Court 6 (12)
(c), set aside
and replaced with the following order: -
‘
1.
The applicant’s urgent application be and is hereby dismissed,
with costs.
2.
The applicant shall pay the first respondent’s costs of this
ex
parte
urgent application, including the costs consequent upon the
employment of a Senior Counsel.’
(2)
The applicant
shall pay the first respondent’s costs of this application in
terms of rule 6 (12) (c), including the costs
consequent upon the
employment of a Senior Counsel.
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:
19
th
January 2021 – judgment handed down
electronically
FOR THE APPLICANT:
Adv L Moela
INSTRUCTED BY:
FH Munyai Incorporated, Johannesburg
FOR THE FIRST RESPONDENT:
Advocate J P V McNally SC
INSTRUCTED BY:
Prinsloo Incorporated, Johannesburg