Flowra Trading CC v Intozazi Trading (Pty) Ltd and Another (2227/08) [2009] ZAECPEHC 15 (28 April 2009)

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[2009] ZAECPEHC 15
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Flowra Trading CC v Intozazi Trading (Pty) Ltd and Another (2227/08) [2009] ZAECPEHC 15 (28 April 2009)

IN THE HIGH COURT OF
SOUTH AFRICA
(
EASTERN
CAPE - PORT ELIZABETH
)
CASE
No. 2227/08
NOT
REPORTABLE
In
the matter between:-
FLOWRA
TRADING CC
Applicant
INTOZANI
TRADING (PTY) LTD
First Respondent
BRADFORD
BOWN
Second Respondent
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
In this matter the Applicant seeks, in addition to a punitive order
of costs, an order -
(a)
holding the Respondents to be in contempt of the order of this Court
(Dambuza J) granted on 26 February 2008 under Case No.
3127/06 and be
imposed an appropriate sentence;
(b)
directing, notwithstanding the provisions of paragraph 2 of the
aforesaid order, the First Respondent to pay forthwith to the

Applicant, through its attorneys, an amount in Rand currency
equivalent to US$104 421,14 calculated at the exchange rate which

applied on 21 April 2006.
[2]
The relevant order reads as follows:
“
1.
The second and third respondents are interdicted to release the
containers bearing identification letters and numbers KNLU3354056,

GLDU4015442, MSKU3345357 and PONU890506, which are currently held by
the second respondent under and in terms of bills of lading
numbers
SG001-3421 and SG001-3422, to the applicant.
2.
The applicant is ordered to pay an amount in Rand equivalent
to US Dollars 104 421.14 (One Hundred and Four Thousand Four Hundred

and Twenty One US Dollars and Fourteen Cents), calculated at the
exchange rate which applied at 21 April 2006
,
alternatively,
such portion of the said amount as this Honourable Court may deem
fit, to Attorneys Koutsoudis Du Preez and Co, of
7 Hancock Street,
North End, Port Elizabeth, to be held in trust pending the
finalization of an action to be instituted against
the first
respondent, within thirty (30) days of the release of the said
containers, for the recovery of damages arising from demurrage

charges, transport charges and professional expenses incurred in
respect of the said containers from 21 April 2006 to date of release

of the said containers.
”.
[3]
The Applicant in the matter heard by Dambuza J is the First
Respondent in this matter and the First Respondent in that matter
is
the Applicant in this matter. The Second Respondent in this matter is
the sole director of the First Respondent.
[4]
It is common cause that the amount referred to in paragraph 2 of the
above Order has to date not yet been paid to the attorneys
concerned
and that the action referred to in that paragraph has also not yet
been instituted.
[5]
On the relief claimed there are on the papers two issues in
contention between the parties, namely -
(a)
firstly
, the interpretation of paragraph 2 of the
Order, particularly, whether the 30 day period referred to in the
order relates to the
period within which the payment was or is to be
paid or whether it relates to the period within which the envisaged
action is to
be instituted by the Applicant; and
(b)
secondly
, whether the order is one
ad pecuniam
solvendam
so that contempt proceedings are therefore
inappropriate.
Interpretation
of paragraph 2 of Order granted on 26 February 2008
[6]
If I understood Mr. Van Rooyen SC who appeared on behalf of the
Respondents correctly, the interpretation of paragraph 2 of
the Order
was at the time of the hearing of this application no longer in
dispute.
[7]
In my opinion it is, upon a proper interpretation of that paragraph
and regard being had to the background of this matter contained

primarily in Case No. 3127/06, clear that in terms of that Order the
First Respondent was bound to pay to its own attorneys, Messrs

Koutsoudis Du Preez and Co, the amount referred to in that Order
forthwith or at least within a reasonable time after the order
was
granted, the purpose being to be held in trust pending the
finalization of an action to be instituted by the First Respondent

against the Applicant for the recovery of damages allegedly suffered
by it arising from demurrage charges and the like within 30
days of
the release of the containers referred to in paragraph 1 of the
Order.
[8]
I pause here to give a brief summary of the background of this
matter as it appears from the papers filed in Case No. 3127/06.
It
would appear that the Applicant in this matter on 21 June 2006
launched an application under Case No. 2438/06 in this Court against

the First Respondent in this matter in which it claimed US$200 000
admittedly paid to the First Respondent in a scrap metal transaction,

the particulars of which are not relevant for present purposes. The
claim is based on a contention that the agreement had because
of some
breach by the First Respondent been cancelled by the Applicant.
Because of extensive disputes of fact between the parties
the matter
was ultimately referred to the hearing of oral evidence on certain
specified issues. It is, however, common cause between
the parties
that out of the amount claimed an amount of US$104 421,14 is owing by
the First Respondent to the Applicant. The parties
apparently agreed
that this amount, instead of being paid over to the Applicant, it be
paid to the First Respondent’s attorneys
to be held in trust
pending an action to be instituted in effect by way of a counterclaim
by the First Respondent against the Applicant
for damages.
The
matter launched under Case No. 2438/06 is, so I have been informed
from the Bar, still pending between the parties in relation
to the
outstanding balance of the claim of US$200 000.
[8]
It would appear that the containers had indeed been released, but
are now being held in terms of a summons in an admiralty
action
in
rem
by a certain company, BLG Leads Logistics BLL of South Africa
(Pty) Ltd, for reasons which are unrelated to this matter.
[9]
Against this background there seems to be no longer any dispute
between the parties on the interpretation of paragraph 2 of
the Order
in question.
[10]
This brings me to the second issue relevant to the order in respect
of the Respondents’ alleged contempt of the Order concerned.
Is
the Order an order
ad pecuniam solvendam
or and
order
ad factum praestandum
?
[11]
It is the Applicant’s contention that the Order is an order
ad
factum praestandum
whilst on the other hand it is contended on
behalf of the Respondents that the Order is an order
ad pecuniam
solvendam.
[12]
An order
ad pecuniam solvendam
is one in terms of which a
plaintiff is ordered to pay the defendant a sum sounding in money. It
is trite that contempt proceedings
are inappropriate where there has
been non compliance with an order
ad pecuniam solvendam
(
Jayiya v MEC for Welfare Eastern Cape and Another 20042) SA
611 (SCA);
Hofmeyr v Fourie; BGBS Contractors (Pty) Ltd
v Lategan 1975(2) SA 590 (C)
). The rationale for that rule is
clear and well-recognized, namely, the plaintiff has in the case of
such an order other remedies
available to him, like, execution and
attachment of the defendant’s assets or to obtain an order for the
sequestration or liquidation
of the defendant. This is not the case
in respect of orders
ad factum praestandum
which are orders
requiring the performance of an act where there is no other remedy
where a defendant fails to perform such act
other than contempt
proceedings
[13]
The Order in question requires, on either version, the First
Respondent to pay its own attorney the sum concerned to be held
on
its own behalf. It accordingly does not oblige the First Respondent
to pay the amount to the Applicant and, therefore, does
not vest in
the Applicant any right in the money.
The
Applicant finds itself in this matter unable to rely on any of the
remedies available to a party in the case of an order
ad pecuniam
solvendam
. It is unable to pursue a warrant of execution or to
seek First Respondent’s liquidation simply because there is no
order sounding
in money in favour of the Applicant. In fact the First
Respondent is in effect required to perform some act, namely, to
deliver
to its attorney a sum of money to be held on its behalf by
such attorney.
[14]
The order is accordingly in my opinion an order, although the
payment of money is involved,
ad factum praestandum
.
[15]
This, however, not the end of the matter.
[16]
In considering the relief claimed in this regard, there are two
questions that need to be considered.
[17]
The first question is whether the Applicant proved all the elements
of contempt beyond all reasonable doubt (see:
Fakie N.O. v CCII
Systems (Pty) Ltd 2006(4) SA 326 (SCA) at 344G, para [42]
),
the relevant question here being whether it has been so proved that
the Respondents were or are in wilful and
mala fide
disobedience of the Order.
It
would appear that the Respondents at the time and, I add, also the
Applicant’s attorney understood the Order to have meant
that when
the containers were released the 30 day period within which payment
was to be made commences to run. It also appears
that the Respondents
are of the view that, although the containers had been released, they
had not yet been released to the Respondents.
Although
the parties are now in agreement that the Respondents were, on a
proper interpretation of the Order, required to have made
the payment
forthwith or within a reasonable period after the granting of the
Order, I am unable to hold that they were in wilful
and
mala fide
disobedience of the order. In any event, as is apparent from the
argument advanced on behalf of the Respondents, they were until
the
hearing of this matter advised that the order is an order
ad
pecuniam solvendam
where contempt proceedings are inappropriate.
[18]
This brings me to the second question as to the efficacy of the
order at this stage.
It
is common cause that the Respondents failed to institute the action
envisaged in the Order which raises the question whether
they are
still bound to pay the amount to their attorneys to be held in trust.
If
not, it would appear that contempt proceedings are inappropriate at
this stage.
It
would appear that the Applicant may have realized this difficulty,
hence the order claimed in paragraph (d) of the Notice of
Motion that
the Respondents be ordered to forthwith pay the amount to the
Applicant.
[19]
In the circumstances I am unpersuaded that all the elements of
contempt has been proved against the Respondents beyond all

reasonable doubt.
[20]
This brings me to the question whether the Applicant is entitled to
the order envisaged in paragraph (d) of the Notice of
Motion.
Paragraph
(d) of the Notice of Motion
[21]
As already indicated, the Applicant now claims, particularly, in
view of the fact that no action has been instituted as envisaged
in
paragraph 2 of the Order in question, an order in terms of which the
First Respondent is ordered to forthwith pay the amount
in question
to the Applicant.
[22]
Mr. Van Rooyen SC, however, submitted that the payment of the amount
is the subject matter of the proceedings in Case No.
2438/06 which
are, as I have already indicated, still pending and that it is for
the Applicant to approach the Court in those
proceedings to grant
judgment in its favour for that amount and in any event it is still
open to the Respondents to institute a
counterclaim against the
Applicant in that matter which may have an effect on an application
for default judgment in that amount.
[23]
I agree.
For
the reasons set out in this judgment the application is dismissed
with costs.
...............................
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT
ADV S C RORKE
On
the instructions of:- PAGDENS ATTORNEYS
18
Castle Street
Central
PORT
ELIZABETH
Ref
: Mr P Shaw/rm/C0001/1
Tel:
(041) 502 7200
ON
BEHALF OF RESPONDENTS R P VAN ROOYEN SC
On
the instructions of: SPILKINS
15
Rink Street
Central
PORT
ELIZABETH
Ref:
S P Spilkin/JO Charsley
Tel:
(041) 582 1705
DATE
OF HEARING 23 April 2009
JUDGMENT
DELIVERED ON 28 April 2009