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[2010] ZAGPPHC 232
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Echo Petroleum v Sky Petroleum and Another (45809/08) [2010] ZAGPPHC 232 (10 December 2010)
NOT
REPORTABLE
IN
THE
HIGH
COURT OF
SOUTH
AFRICA
CASE
NUMBER
45809/08
DATE:
10/12/2010
In
the matter between
ECHO
PETROLEUM
AND
SKY
PETROLEUM
................................................................................
1
st
RESPONDENT
STANDARD
BANK
OF
SOUTH AFRICA
LIMITED
...................................................................................................
2
nd
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
The
applicant approached the court by way of an urgent application for
the following
Order:
"1
.
Dat
hierdie
aansoek as een van semi-dringenheid aangehoor
word
vir die nie-nakommg
van
hofreels
met betrekkmg tot vorm en betekenmg:
2.
Dat
die
Respondente gelas word binne
24
uur
van betokening van die bevel
die
bedrag
van
R710
000
00
aan
die Applikant te betaal
3.
Dat
d
e
Respondente die koste van heirdie aansoek gesamentlik en afsonderiik
betaal op
n
skaal
soos tussen prokureur en klient:"
The
applicant having filed its founding affidavit and the second
respondent having opposed the matter and having filed its answering
affidavit, the applicant instead of replying filed a supplementary
founding affidavit, and the order given on the 4 August 2009
related
to the condonation of the filing of a supplementary founding
affidavit by the applicant and the re-enrollment of the matter
on the
opposed roll, it having been struck off by the court The second
respondent refused to file its answering affidavit to the
supolementary founding affidavit before the finalization of the
condonation application. The reasons that now follow relate to
the
order given at that time which read.
(a)
Application
for condonation is granted:
(b)
The
second respondent is to file its answering affidavit:
(c)
Matter
is postponed sine die
(d)
Costs
reserved.
THE
FACTS
[2]
The applicant traded as a wholesaler in petroleum products, a
business conducted within the jurisdiction of this court.
The
products were sourced through the first respondent which had its
registered offices in La Lucia. Natal and which was registered
as a
distributor of the products on behalf of the supplier, Sasol. The
said products could only be sourced through a registered
distributor,
hence the relationship between the applicant and the first
respondent. The second respondent was the banker for the
applicant
and first respondent.
[3]
The purpose of the application was to compel the first and second
respondent to return to the applicant an amount of R710 000.00
which
it had deposited into the account of the first respondent on the 1
October 2008 and which amount was
earmarked
for the purchase and delivery of petrol for that amount. The modus
operandi for the purchase was that the applicant would
fax through
his order to the first respondent which was followed by payment of
the purchase price into the bank account of the
first respondent The
delivery would only be effected by Sasol to the applicant and at
Secunda branch upon receipt of the order
and proof of payment On this
occasion applicant could not take delivery of the petroleum because
the second respondent had laid
claim to the R710 000.00 in the first
respondents account and further frozen the first respondents account.
The issue revolved
around the ownership of the money whether same had
passed to the first respondent or not.
[4]
The
second respondent raised certain points in limine namely: that
applicant lacked locus standi to bring the application against
it:
there was no contractual nexus between it and the applicant, giving
the applicant the right to demand payment of the price
of goods
ordered from the first respondent and that second respondent was not
aware of any terms and conditions governing the contractual
relationship between the applicant and the first respondent: that the
registered offices of the first respondent were situated
in Natal,
therefore this court lacked jurisdiction to hear the matter. The
second respondent contended that as a result of various
issues a
dispute of fact had arisen and this matter could not be resolved by
way of application
[5]
According
to the second respondent, the first respondent was indebted to it in
respect of overdraft facilities and other obligations
The first
respondent was experiencing financial problems.
At
the time the first respondents indebtedness exceeded R800 000.00 When
the R710 000.00 was received from the applicant or was paid
in on
behalf of the applicant the second respondent set off such leaving a
balance owing of about
R183
000.00
The monies were withdrawn from the first respondents bank account
after it had failed to meet certain undertakings to pay
substantial
monies owing to the second respondent and after failing to honour
deadlines
set
[6]
The urgent matter did not proceed because the applicant had
approached the second respondent for a postponement to file
a
replying affidavit also tendering costs. Apparently applicant failed
to communicate this request in writing via e-mail as arranged
with
the attorneys for the second respondent. There was no appearance for
the applicant or first respondent at the hearing and
the matter was
struck off The order was taxed and costs were then paid by the
applicant.
[7]
The applicant filed a supplementary founding affidavit stating
that the facts raised therein would not prejudice the respondents
and
if they wished to. second respondent was at liberty to amplify its
answering affidavit The applicant addressed the issue of
jurisdiction
and its relationship with the first respondent As I see it. the
applicant in the supplementary founding affidavit
gave better and
full details of how petrol was purchased through the first respondent
which details were not provided in the founding
affidavit. The second
respondent opposed the application for condoning the filing of this
founding affidavit. It contended that
the initial founding affidavit
failed to make out a case and that by filing a supplementary founding
affidavit it was attempting
to change the facts in the founding
affidavit by substituting a new case in the supplementary affidavit
and it gave some examples
[8]
It was submitted for the applicant
1.
that the supplementary founding affidavit did not
abandon
the cause of action set out in the founding papers, that there was no
prejudice to the second respondent if it filed a supplementary
answering affidavit since it had reserved its right to supplement its
answering affidavit.
2.
that
the supplementary affidavit dealt with the issue of jurisdiction and
the confirmatory affidavit
of
the
first respondent to address hearsay issues, which confirmatory
affidavit could not be obtained because the applicant had approached
the court by way of urgency.
3.
that
the applicant had
a
strong
case on the merits and the law: the second respondent being
aware
of
the debt problems it had with the first respondent had allowed the
first respondent to deal with his accounts without freezing
them and
that the unsuspecting public deposited monies into those accounts;
4.
that
the contract between the applicant had not been honoured therefore it
was entitled to cancel the contract due to non-delivery
of the
purchased goods, that the applicant and first respondent had been in
agreement that the contract had been cancelled
as
a
result the first respondent was not entitled to the money
5.
that
the money deposited with the first respondent was not meant to pay
the first respondent
's
debt
with the second respondent but that it was meant to pay
Sasci
for
the delivery
of
the
petrol ordered and that before the petrol was delivered there was
no
entitlement
to the money:
The
following
was
submitted
for the second respondent:
6.
that
the applicant
was
attempting
to convert a claim it had against the first respondent into
a
claim
against the second respondent: the applicant has not in any way
sought
an
order
against its contracting party, the first respondent
7.
that
the applicant had to show that the money paid into the first
respondents account
was
its
money: the deponent to the founding affidavit contradicted himself
with regard to ownership of the money
8.
that on a closer look at the activity of the first respondent's
account into whicn applicant had deposited the money, it was
evident
that such account was not created for the sole purpose of purchasing
petrol for the applicant from Sasoi. first respondent
had used the
same account to conduct other business:
9.
that
the basis of the application was contrived in that it emanated from a
suggestion from first applicant that the application
is to be done on
the basis that the funds in question were earmarked';
10.
that
that the applicant attempted to enforce its contract with the first
respondent when he demanded documentation in order to enable
him to
take delivery of the petrol, that is before cancellation' was
suggested by the first respondent furthermore that as at the
time the
money was set off by the second respondent the applicant and first
respondent had an extant contract
11.
that the supplementary founding affidavit suggested that the
transaction
concluded
between the applicant and first respondent was a cash sale which fact
was never mentioned in the founding affidavit and
that this issue was
prejudicial to the second respondent which
is
expected
to engage the arduous task of investigating its records to discover
whether it knew or should have known the relationship
between the
applicant and first respondent:
Without
going into the merits, it is not disputed that the applicant was in
the business of selling petroleum products and that
the first
respondent was the only agent through which such product could be
sourced from Sasol While second respondent was not
a party to the
contract between applicant and first respondent, on the other hand
applicant was not a party to the relationship
between the first and
second
respondent
where the latter had extended overdraft facilities to the first
respondent What requires to be looked into was the intention
for
which payment was made in the account of the first respondent. This
could only be achieved if there was a detailed enquiry
into the
matter, this being the case even where it shall entail an extensive
investigation into the records of the bank and the
parties, hence the
grant of the application, being to allow a full ventilation of the
issues.
[10]
Although the facts in Nissan South Africa (Pty) Ltd v Maritz and
Others (Stand 186 Aeroport (Pty Ltd Intervening)
2005 (1) SA 441
(SCA) and Joint Stock Co Varvarinskoye v Absa Bank Ltd and others
2008 (4) are distinguishable, they serve to show that depending
on
the circumstances the court could oblige a party in this instance the
bank to pay back monies which were in another's account
where such
money did not belong to such person or the bank and was utilized for
purposes other than what it was intended for While
the second
respondent views the suggestions made by the first respondent to the
applicant as to how the money could be demanded
back from the second
respondent, it remains a suspicion and does not necessarily mean that
there was something untoward in the
suggestion It would further be in
the interests of justice that this matter be properly investigated
and ventilated.
TLHAPI
VV
(JUDGE
CF THE HIGH COURT)
ATTORNEYS
FOR
THE
APPLICANTS
CILLIERS
& REYNDERS ING
ATTORNEYS
FOR T
HE
RESPONDENTS
SHAUN
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