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[2010] ZAGPPHC 568
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Armcoil Afrika (Pty) Ltd v Torre N.O and Another (42267/08) [2010] ZAGPPHC 568 (31 May 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NUMBER:
42267/08
DATE: 31 MAY 2010
In the application
for leave to appeal:
ARMCOIL AFRIKA
(PTY)
LTD
......................................................................................................
Applicant
and
PHILLIPUS
GIOVANNI TORRE N.O.
RICHARD
CASSIM N.O.
…
..........................................................
Jointly
referred to as the First Respondent
ABSA
BANK LIMITED
….................................................................................................
Second
Respondent
In Re:-
ARMCOIL
AFRIKA (PTY) LTD
….........................................................................................
First
Applicant
PETER
JACQUES FLINT
…................................................................................................
Second
Applicant
JOHN
MICHAEL ROBINSON
…...........................................................................................
Third
Applicant
MARTHINUS
JACOBUS VAN WYK
…..............................................................................
Fourth
Applicant
MARIA
SLABBER
…................................................................................................................
Fifth
Applicant
and
ARMCOIL
AFRIKA HOLDINGS (PTY) LTD
…...............................................................
First
Respondent
ELIAS
SELLO NTSIHLELE
…........................................................................................
Second
Respondent
SETENANE
SEBASTIAN MABULU
…..............................................................................
Third
Respondent
ABSA
BANK LTD
…...........................................................................................................
Fourth
Respondent
RONALD
SHANLEY
….........................................................................................................
Fifth
Respondent
HAASBROEK
STEYN
…......................................................................................................
Sixth
Respondent
JUDGMENT
[1] The applicant
seeks leave to appeal against the orders made in subparagraphs 34.2
and 34.4 of the judgment that was handed down
on 11 December 2009.
[2] The amended
notice of application to appeal does not state whether the applicant
seeks leave to appeal to the Supreme Court
of Appeal or to the Full
Court of this High Court. Mr Odendaal SC, who appeared on behalf of
the applicant, however, informed me
from the Bar that leave is sought
to appeal to the Full Court.
[3] Mr Odendaal's
argument in support of the application is based on two grounds,
namely:
3.1
The applicant was never in
mora
debitoris
;
3.2
Alternatively
,
and in the event of it being found that the applicant was indeed in
mora
,
and having regard to the provisions of section 1 of the Prescribed
Rate of Interest Act 55 of 1975 ("the Interest Act"),
as
amended, there were special circumstances relating to the debt owing
by the applicant to the first respondent which justified
an order
that no interest was payable by the applicant.
[4] As regards the
first ground, Mr Odendaal's argument can be summarised as follows:
4.1
Mora debitoris
can
arise only if the particular debt is due and enforceable;
4.2
When a debtor would have a good defence to any action brought against
it to enforce the obligation, the debtor is not in
mora
4.3 A contracting
party who demands restitution consequent upon a purported rescission
of a contract must tender the return of what
he himself has received
under the contract or its equivalent in money;
4.4
For the applicant to have been in
mora
debitoris
(as
was found), it follows, that for purposes of the order made, the
first respondent was the creditor, claiming payment of the
subscription price and interest thereon;
4.5
If the applicant was in
mora
ex re,
the
return of the shares and the repayment of the subscription price had
to occur simultaneously;
4.6 It is common
cause that the first respondent has at no time (to date) tendered to
the applicant return of the shares;
4.7
In the premises, the applicant was never in
mora
and
is therefore not liable for interest until it is placed in
mora.
[5] As regards the
first ground, Mr Odendaal, further, contended that:
5.1 the agreement
between the applicant and the first respondent did not fix a date for
performance in the event of the lapsing
thereof;
5.2 it was the
intention of the parties that the shares would be returned, and the
subscription price repaid, within a reasonable
period of time after
the lapsing of the agreement;
5.3 the
non-fulfilment of the relevant suspensive conditions would have
fallen peculiarly within the knowledge of the first respondent,
and
it could not have been the intention of the parties that the
applicant would be obliged and become liable to repay the
subscription
price and interest in circumstances where:
5.3.1 it would not
immediately have known of the non-fulfilment of the suspensive
condition and the consequent lapsing of the agreement;
5.3.2 the return of
the shares would have taken some time;
5.4
in the circumstances, the applicant was not in
mora
ex
re;
5.5
the applicant was never placed in
mora
ex persona
;
5.6
in law, before a delay amounts to
mora,
it
must be culpable, i e the debtor did not know or could not be
reasonably expected to know that performance was due or, in other
words, that the debtor must or should have been aware of his
obligation to perform timeously and of the nature of the performance;
5.7 the applicant
only realised during or about April 2008 that the relevant suspensive
conditions have not been timeously fulfilled;
5.8 there is no
suggestion in the papers that the applicant could reasonably have
ascertained at a prior date (i e prior to April
2008), that the
suspensive conditions had not been fulfilled;
5.9
the applicant's ignorance that the subscription price became due
pursuant to the non-fulfilment of the suspensive conditions
on 1
October 2004 was reasonable and, consequently, the applicant did not
automatically fall in
mora
on
2 October 2004.
[6] I am of the view
that there is not a reasonable possibility that another court may
come to a different conclusion based on Mr
Odendaal’s argument
referred to in paragraph 4 above, and the grounds to which the
argument pertains in the amended notice
of application for leave to
appeal. The reasons for this are, briefly, the following:
6.1
The applicant applied for
declaratory
relief
as
stated in paragraph 1 of the judgment;
6.2 The only issue
between the applicant, on the one hand, and the first and second
respondents (i e the respondents in this application),
on the other
hand, was whether paragraph 3 of the notice of motion should be
amended as set out in subparagraph 2.1 of the judgment;
6.3
Counsel for the applicant and the first and second respondents were
ad idem
that
the sole issue could indeed be decided;
6.4 The fact that
the first respondent did not oppose the application for declaratory
relief (save for the issue of interest), is
comparable with a
situation where the first respondent itself sought such relief,
against repayment to it of the amount of R998,000.00
by the
applicant, on the same basis as that set out in the notice of motion
- in such situation:
6.4.1 the first
respondent would not, in law, have been obliged to tender restitution
of the shares (the situation, therefore, clearly
differs from the one
alluded to by Mr Odendaal, where the applicant had instituted
proceedings for the return of the shares or
the respondent had
instituted proceedings for the repayment of the amount of
R998.000.00, i e not for declaratory relief);
6.4.2 the applicant
would not have had a good defence.
[7] I am of the view
that there is a reasonable possibility that another court may come to
a different conclusion based on the argument
of Mr Odendaal referred
to in paragraph 5 above, and the grounds to which the argument
pertains in the amended notice of application
for leave to appeal.
[8] As far as the
alternative argument and the grounds to which that argument pertains
in the amended notice of application for
leave to appeal are
concerned, I am of the view that there is not a reasonable
possibility that another court may come to a different
conclusion.
The reasons for this are, briefly, the
8.1 Section 1 of the
Interest Act does not empower a court of law to order that a debt
shall bear no interest - it provides that
a court of law may, on the
grounds of special circumstances relating to that debt, order that
interest shall be calculated at the
rate other than the one
prescribed under section 1 (2) of that Act;
8.2 Theoretically,
it may be possible that a zero rate be ordered - I am, however, not
called upon to make a finding in that regard;
8.3 In the light of
the facts of this case there is not a reasonable possibility that
another court may come to the conclusion that
interest on the amount
of R998,000.00 that the applicant was ordered to pay to the first
respondent should, in terms of section
1 of the Interest Act, be
calculated at a zero rate.
[9] In the premises,
the following order is made:
9.1 The applicant is
granted leave to appeal to the Full Court of the North Gauteng High
Court, Pretoria, against the following
parts of the judgment made by
me on 11 December 2009:
9.1.1 The order set
out in subparagraph 34.2 of the judgment;
9.1.2 The order set
out in subparagraph 34.4 of the judgment.
9.2 The leave to
appeal as set out in subparagraph 9.1 above is granted only in
respect of the following grounds set out in the
amended notice of
application for leave to appeal: 1.2, 1.4, 1.5, 1.8, 2.5, 2.8 and
2.10;
9.3 The costs of the
application for leave to appeal in respect of the grounds set out in
subparagraph 9.2 above, will be costs
in the appeal;
9.4The application
for leave to appeal in respect of subparagraphs 1.1, 1.3, 1.6, 1.7,
1.9, 2.1, 2.2, 2.3, 2.4, 2.6, 2.7 and 2.9
of the amended notice of
application for leave to appeal is dismissed with costs.
VAN LOGGERENBERG: AJ
20/05/10
(Date)