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[2010] ZAGPPHC 198
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Standard Bank of South Africa v Van Der Merwe NO and Others (8421/09) [2010] ZAGPPHC 198 (5 November 2010)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE
NO: 8421/09
DATE:
05/11/2010
IN THE MATTER BETWEEN:
THE
STANDARD BANK OF SOUTH AFRICA
............................
APPLICANT
AND
ESTELLE KATHLEEN VAN DER
MERWE NO
..........................
FIRST
RESPONDENT
(in
her capacity as
Trustee of the PJS FAMILIE
TRUST)
CORNELIUS JANSEN VAN DER
MERWE NO
...........................
SECOND
RESPONDENT
(in
her capacity as
Trustee of the PJS FAMILIE
TRUST)
GERHARDUS FRANCOIS
ROSSOUW NO
..................................
THIRD
RESPONDENT
(in
her capacity as
Trustee of the PJS FAMILIE
TRUST)
CORNELIS JANSEN VAN DER
MERWE
.......................................
FOURTH
RESPONDENT
LIMPOPO WEST FARMING AND
BUSINESS
ENTERPRISES (PTY)
LTD
.................................................................
FIFTH
RESPONDENT
GALESHEWE MOSES
GASETINGWE NO
.....................................
SIXTH
RESPONDENT
(
capacity
as Trustee of LIMPOPO WEST WORKERS TRUST)
RAMOKANY JOHANNA MOABELO
NO
............................................
SEVENTH
RESPONDENT
(
capacity
as Trustee of LIMPOPO WEST WORKERS TRUST)
JOSEPH SEEMA MOKOENA
NO
…..................................................
EIGHTH
RESPONDENT
(
capacity
as Trustee of LIMPOPO WEST WORKERS TRUST)
GERHARDUS FRANCOIS
ROSSOUW NO
.......................................
NINTH
RESPONDENT
(
capacity
as Trustee of LIMPOPO WEST WORKERS TRUST)
ABRAHAM JACOBUS JOHANNES
GERHARDUS
LAMPRECHT
NO
...................................................................................
TENTH
RESPONDENT
(
capacity
as Trustee of LIMPOPO WEST WORKERS TRUST)
JUDGMENT
SERITI, J
A
INTRODUCTION
[1] This
matter came to Court by way of motion. In the notice of motion, the
Applicant is seeking an order directing the First,
Third and/or the
Fifth Respondent forthwith to deliver to the Applicant certain
movable property therein described, together with
an order for costs
on the scale as between attorney and client.
[2] The application was
opposed by the First, Second, Third and Fourth Respondents and the
other respondents did not oppose the
application.
B
BACKGROUND
FACTS
[3] During
the period June 2004 to July 2005, the Applicant concluded fourteen
instalment sale agreements with the PJS Familie Trust,
hereinafter
referred to as (“the Trust”); the latter duly represented
by its Trustees.
[4] In
terms of each of the instalments sale agreement referred to above,
the Trust purchased certain goods from the Applicant,
on certain
terms and conditions, which included that the Trust will make certain
payments at certain intervals to the Applicant.
The goods in
question were duly delivered to the Trust, but ownership thereof
vested in the Applicant until such time as the Trust
complied with
all its obligations in terms of the instalment sale agreements.
[5] The
instalment sale agreements also provided that in the event of a
failure by the Trust to pay any sum due to the Applicant
on due date
thereof, the Applicant would be entitled, after due demand, to cancel
the agreement, repossess the goods, and claim
all amounts due at that
stage and in the future, less the value of the goods on the date that
the Applicant regains possession
thereof, together with value added
tax. The sale agreements also made provision for the payment of the
Applicant’s legal
costs on the scale as between attorney and
client in case of any litigation.
[6] At
some stage and in particular from November 2005 the Trust fell in
arrears in respect of each of the instalment sale agreements.
The
Applicant demanded that the Trust should remedy its breach but the
Trust failed to do so. On 15 March 2007, the Applicant’s
attorneys addressed a letter to the attorney of the Trust. In the
said letter,
inter alia
the following is stated:
“Despite
numerous demands, your client has still not paid the arrear
instalments in respect of each of the above agreements,
and in terms
of paragraph 11.2(b) of each of these Agreements we hereby cancel
same with immediate effect, without prejudice to
our client’s
rights flowing from such cancellations.”
[7] The
Trust was in financial difficulties and, in order to raise funds to
enable it to pay its debts, it attempted to structure
a certain deal
with the fifth respondent, in terms of which the Development Bank of
Southern Africa will make funding available.
[8] In
the answering affidavit, the Respondents alleged that in terms of the
transactions mentioned in the previous paragraph, the
Applicant
agreed that the movable assets which formed the subject of the
instalment sale agreements, should be taken over by the
Fifth
Respondent and the later will pay balance owing to the Applicant
utilising funds that will be made available by the Development
Bank
of Southern Africa. The Trust further alleged that the Fifth
respondent, and not the Trust is in possession of the movables
in
question. The Trust further stated “In die vooropstelling is
die goedere nie in besit van die Trust nie maar wel in besit
van
LWFBEW, alternatiewelik Kerneels en Paul van der Merwe namens LWFBE,
…”. LWFBEN is the Fifth Respondent.
FINDINGS
[9] In
the written heads of arguments, the
Respondent’s
counsel raised various defences, but they were later abandoned except
one of them. During oral argument the
Respondent’s counsel
submitted that they rely on storage lien. He further submitted that
the Respondents stored the goods
of the Applicant, kept them in a
good condition and consequently the Respondents are entitled to
storage costs which amounts to
just over R4 million.
[10] A
lien or right of retention is a right which allows a possessor of
movables of another to retain said movables until he is
compensated
for expenses incurred in respect of that property. See Delport –
SA Property Practice and the Law – 2
nd
Edition at p76 and authorities therein stated.
A lien
comes into being only if the person who alleges that he/she/it has a
right of retention is in possession of the movable to
which
his/her/its claim relates. The lien exists only for as long as
possession thereof is retained. See Silberberg & Schoeman
–
The Law of Property – 4
th
Edition at p392 and LAWSA First Reissue – Volume 15 para 51 and
the authorities therein quoted.
[11] In
one paragraph of the answering affidavit the First, Second, Third and
Fourth respondents stated that they are not in possession
of the
movables under consideration and that the Fifth respondent is in
possession thereof. In another paragraph, they simply
stated that it
is denied that the Trust is in possession of the movable in question.
The Trust is not in possession of the movables
in question and
consequently it cannot rely on any lien or right of retention to
resist the order the Applicant is seeking.
[12] My
view is that the Applicant is entitled to an order is seeking
together with costs associated with this matter. The matter
is such
that the Applicant is entitled to the costs of two counsel.
Respondents counsel did not argue that the Applicant if it
succeeds,
should not be awarded costs consequent upon employment of two
counsel.
[13] On
19 October 2009 the Applicant was granted an order in terms of which
Third, Fourth, Sixth, Seventh, Ninth and Tenth Respondents
were
joined and the costs thereof were reserved.
[14] The
Applicant’s founding affidavit was attested to on 6 February
2009 and only two Respondents, in their capacities as
Trustees were
cited as they were the only two Trustees mentioned in the “Letters
of Authority” of the PJS Familie Trust.
In the answering
affidavit attested to by the First Respondent, a point
in
limine
was raised to the effect that
there is a misjoinder in the sense that Mr. Cornelis Jansen van der
Merwe should not have been joined
as he resigned as a Trustee from 20
January 2009 and was replaced, on the same date by Mr Gerhardus
Francois Rossouw. It was also
stated by the deponent of the
answering affidavit that other parties, namely Limpopo West Farming
and Business Enterprises (Pty)
Ltd who is in possession of the
movables in question should have been joined.
[15] My
view is that at the time the founding affidavit was attested to the
Applicant could not have known that there has been a
change of
Trustees of the Trust as at the time Applicant started dealings with
the Trust, and over the years when they attempted
to resolve the
dispute, the Trust had only two Trustees who the Applicant cited in
the founding affidavit and initial notice of
motion. The Fifth
Respondent who the Applicant was compelled to join, is not opposing
this application.
My
view is that the Applicant is entitled to the reserved costs.
[16] The court therefore
makes the following order:
The
first and third respondents (in their capacities as Trustees of the
PJS Familie Trust) alternatively the fifth respondent
to deliver,
forthwith to the Applicant the following movable property.
16.1.1 John
Deere 8520 MFWD tractor, serial number 020272;
16.1.2 John Deere 5715
tractor, engine number PE4045T294735, chassis number 8341;
16.1.3 John
Deere 6820 MFWD tractor, engine number CD6068H832135, chassis number
L06820K396044;
16.1.4 10 Ton “Mass”
trailer, serial number AC9B213HB4JCZ1112;
16.1.5 JME 1,5 Ton
“Mass” trailer, chassis number AC9B324HP4JCZ1029;
16.1.6 15 Ton “Mass”
trailer, chassis number AC9B324HB4JCZ1028;
16.1.7 9,2 m
“Platsnyer”, serial number P473;
16.1.8 Tatu
planter COP CL SUPREMA 19/1, serial number T404S-0403;
16.1.9 Tatu COPCL
SUPREMA 19/19 planter, serial number C/PN-50403;
16.1.10 JD 1750 V/D
Vacuum Dry planter, chassis number CJ1750X0031020;
16.1.11 9660 “stroper”
(harvester), chassis number H09660S710512;
16.1.12 John
Deere 6420 tractor, engine number CK4045H869198, chassis number
L06420G422815;
16.1.13 Tata
SFC 407-2 ton Truc dropsied body and towbar, serial number
35713348R25865, engine number 497SPTC31LVZ942610;
and
16.1.14
John Deere 8320 MFWD Greenstar Auto Track and duel tyres, engine
number RG6Q81H248466, chassis number RW8320P025347
(“the
goods”) failing which the sheriff of this court is authorised
and directed to attach the goods wherever he may
find them and to
deliver them to the Applicant.
16.2
The First and Third respondents are to pay the costs of the
Application on the scale as between attorney and Client, which
cost
will include costs consequent upon the employment of two counsel.
16.3
The First and Third respondents are to pay the cost reserved on
19
October
2009
on
the scale as between attorney and
client
SERITI
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANTS: ADV. A GAUTSCHI SC, ADV. CB GARVEY
INSTRUCTED
BY: YOUNG-DAVIS INC
FOR
THE RESPONDENTS: DA PREIS SC
INSTRUCTED
BY: JOOP LEWIES INC