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[2016] ZAECPEHC 2
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JR Quality Projects (Pty) Limited v Tutelage Real Economic Empowerment (Pty) Limited (4150/2015) [2016] ZAECPEHC 2 (25 February 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION LOCAL, PORT ELIZABETH)
CASE
NO.: 4150/2015
In
the matter between:
JR
QUALITY PROJECTS (PTY) LIMITED
Plaintiff
And
TUTELAGE REAL ECONOMIC EMPOWERMENT
(PTY)
LIMITED
Defendant
AMENDED
JUDGMENT
BESHE,
J:
[1]
The plaintiff in this matter instituted action against the defendant
wherein it seeks an order directing the defendant to deliver
share
certificates issued in TDC Yellow-Wood (Pty) Ltd to the plaintiff.
Initially plaintiff’s claim was for 50% of the issued
shares in
TDC Yellow-Wood. However this has since been amended to 25%.
[2]
The genesis of plaintiff’s claim is a loan agreement concluded
between the plaintiff and the defendant. In terms of this
agreement,
plaintiff was to advance a sum of R1 463 048.00 (as a
lender) to the defendant (the borrower). The said loan
was secured by
a pledge and cession of 50% of issued shares in TDC Yellow-Wood (Pty)
Ltd so as to enable the plaintiff to be registered
as a 50%
shareholder in the said company.
Clause
6
of the loan
agreement reads thus:
“
SECURITY
Clause 6
6.1 “
The Borrower
” hereby pledges and cedes unto
and in favour of “
the Lender
” Fifth Percent (50%)
of the authorised and issued shares held by “
the Borrower
”
in the “
NEWCO
” TDC Yellow-Wood (Proprietary)
Limited in terms of the pledge Agreement attached hereto and marked
Annexure “A”.”
Annexure
“A” relates to “Pledge and Cession of Shares and
Loan Accounts”.
[3]
It is common cause that the plaintiff complied with its obligations
in terms of the loan agreement by making payments in the
amount
agreed upon in favour of the defendant.
[4]
The plaintiff alleges that the defendant breached its obligations in
terms of the loan agreement, the pledge and cession agreement
by:
failing
to pay the capital amount together with accrued interest to the
plaintiff;
failing
to deliver a percentage of the authorised issued shares in TDC
Yellow-Wood (Pty) Ltd as per agreement.
This
culminated in plaintiff obtaining a judgment by default against the
defendant for payment of R1 463 048.00 and interest
therein
on the 9 September 2014.
[5]
The plaintiff alleges that the defendant remains in default by
failing to pay any amount/s in settlement of the judgment and
fails
in its obligation to transfer 50% of the shares in question to the
plaintiff. As a result the plaintiff issued summons against
the
defendant claiming delivery of the relevant shares in October 2015.
This was met by an entrance by the defendant of its intention
to
defend the action. This in turn was met by the plaintiff’s
application for summary judgment based on the belief held by
the
plaintiff that the defendant does not have a
bona
fide
defence to the
claim, and that the appearance to defend was entered solely for
purposes of delay.
[6]
In order to successfully oppose a summary judgment application, it is
trite that the defendant is required to fully disclose
the nature and
grounds of the defence relied upon and the material facts on which it
is based. Facts, which, if accepted as the
truth or proved at the
trial, with admissible evidence, would disclose a defence to the
plaintiff’s action.
[7]
Mr Jacques Lamprecht
is the sole director and shareholder of plaintiff.
[8]
In his affidavit in opposition of the summary judgment application,
Mr Hein Swanepoel
(
Swanepoel
),
a director in the defendant, outlines what he describes as
complicated arrangements between himself and
Mr
Abraham Jacob Lamprecht
.
A relationship that existed and “took various forms and various
entities” which were used by both of them.
Swanepoel
proceeds to outline
same transactions and dealings between him and a certain
Lamprecht
.
It transpired that the
Lamprecht
referred to is not
Jacques Lamprecht
but one
Abraham
.
He attests to a number of loan agreements concluded by entities who
are not parties in this matter. He refers to a matter that
served
before a court involving Hi-Line Investments (Pty) Ltd (not one of
the parties in this matter). He states that in respect
thereto,
discussions were held between him and
Lamprecht
,
who, for the first time at paragraph 24 of
Swanepoel’s
affidavit is said to have been representing the plaintiff. These
discussions culminated in the said
Lamprecht
agreeing that it
would not be fair in
Swanepoel’s
words, “unconscionable” for plaintiff to claim the amount
listed on “POC1” “(The amount of R1 463 048.00)
for certain reasons. He further states that to this end an oral
agreement was concluded between him and
Lamprecht
.
The terms of the oral agreement being that plaintiff’s claim be
extinguished and regarded as being paid.
[9]
As
Mr Van Rooyen
for the plaintiff rightly pointed out, no detail is provided as to
when this oral agreement was concluded, whether it was before
or
after the entering of default judgment against the defendant. It is
not clear why defendant’s relation with
Abraham
Lamprecht
through
“various forms and entities” have a bearing in this
matter.
[10]
It is noteworthy that in its plea, (attached to opposing affidavit)
significantly, defendant pleads:
“
5.5
During or about April 2014 and at Port Elizabeth the Plaintiff and
the Defendant (the Plaintiff represented by Lamprecht and
the
Defendant represented by Hein Swanepoel) concluded an oral agreement,
the express, alternatively tacit alternatively implied
material terms
whereof being the following:
5.5.1.
The Defendant and Hein Swanepoel, would abandon any claim they
possessed as against Evening Flame Trading 449 (Pty) Ltd (in
liquidation). Such abandonment by agreement was in favour of Hi-Line
Investments (Pty) Ltd.
5.5.2.
On so abandoning its claim in favour of Hi-Line Investments (Pty) Ltd
the Plaintiff undertook to abandon any claim it had
against the
Defendant.
5.6
Accordingly, and by the agreement to abandon and waive any claim, any
claim that previously existed has in law been extinguished.”
[11]
This does not accord with what is suggested in the opposing
affidavit, namely, it was agreed that this particular debt as
recorded in “POC1” (loan agreement) be and is
extinguished. (See paragraph 26 of opposing affidavit). According to
the plea, plaintiff is alleged to have abandoned any claims against
the defendant generally. The matter in respect of which discussions
allegedly took place between
Swanepoel
and
Abraham
Lamprecht
appears
to be in connection with a matter between Hi-Line Investment (Pty)
Ltd and three defendants being;
Abraham
Jacob Lamprecht
,
Marinda Lamprecht
and
Swanepoel
.
The settlement agreement reached in respect of this matter was placed
at my disposal by the defendant. It is clear from the said
agreement
that it was between the parties to that matter. The plaintiff was not
one of the parties in that matter – namely
the Hi-Line
Investments matter. It would seem, it is
Swanepoel
(third defendant in
that matter) who “undertakes not to prove any further claim
against the principal debtor (which appears
to be Evening Flames
Trading 449 (Pty) Ltd) and also waives and abandons any such further
claim which it may have. It is also not
clear why, if there was such
an agreement as claimed by the defendant, plaintiff would apply for
default judgment in September
of the same year after the claim was
settled between the parties according to
Swanepoel
as it emerges from
the settlement agreement in the Hi-Line Investment matter. This does
not make any sense.
[12]
I am not persuaded that the defendant has succeeded in showing that
it has a
bona fide
defence against plaintiff’s claim.
The defence alleged by the defendant is also countered on the basis
that it falls foul
of the non-variation clause of the agreement.
Defendant alleges that an oral agreement was concluded between him
and
Mr Abraham Jacob Lamprecht
.
Clause 12 of the Loan
Agreement
reads thus:
“
No
agreement varying, editing to, deleting from or cancelling this
agreement, no waiver whether specifically, implicitly or by conduct
of any rights to enforce any term of this agreement, shall be
effective unless reduced to writing and signed by or on behalf of
the
parties.”
Counsel
for the defendant
Mr
Williams
submitted
that the non-variation clause does not cover a release from
obligations in terms of the agreement. Put differently, the
release
from obligations under the loan agreement is not provided for in the
non-variation clause. It was submitted that the agreement
stayed
intact and was not varied by the oral agreement. I do not agree, in
my view the purported abandonment of claim or release
of the
defendant from the obligations flowing from the loan agreement
amounts to a waiver of plaintiff’s right to enforce
the terms
of the agreement. The “release” is therefore covered by
the non-variation clause. To be valid it required
to be reduced to
writing and signed by or on behalf of both parties.
[13]
In his plea (to which my attention was drawn by the defendant)
defendant states that according to the agreement he was required
to
deliver to the plaintiff 50% of defendant’s 50% issued shares
which amounts to 25%. This as opposed to 50% of the Yellow-Wood’s
shares. But 50% of shares held by the defendant in the said company.
[14]
Plaintiff concedes that the defendant is entitled to leave to defend
in respect of 25% of the issued share capital in TDC Yellow-Wood
and
sought an amendment of paragraph 1 of the Notice of Application for
Summary Judgment to read ‘25% in the place of 50%’.
[15]
Accordingly summary judgment is entered in favour of the plaintiff:
(a) Directing the defendant to deliver within seven
(7) days of the granting of this order the necessary signed transfer
documents
of 25% of the issued shares in TDC Yellow-Wood (Pty) Ltd;
(b) In the event of the defendant failing to comply
with (a) above of this paragraph, the sheriff is authorised to do
whatever is
necessary to ensure that plaintiff receives transfer of
25% of issued shares in TDC Yellow-Wood (Pty) Ltd;
(c) Defendant is granted leave to defend in respect
of the 25% of the issued share capital of TDC Yellow-Wood (Pty) Ltd.
(d)
Defendant is ordered to pay costs of suit.
_______________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff
:
Adv: Van
Rooyen SC
Instructed
by
:
SCHOEMAN OOSTHUIZEN INC.
167 Cape Road
PORT
ELIZABETH
Ref.: Mr JS
Oosthuizen/nr/C01997
Tel.: 041 –
373 6878
For
the Defendant
:
Adv: K
Williams
Instructed
by
:
FREDERICKS INCORPORATED
43 Parliament
Street
Central
PORT
ELIZABETH
Ref.: T
Fredericks/
Tel.: 041 –
363 8506
Date
Heard
:
23
February 2016
Date
Reserved
:
23
February 2016
Date
Delivered
:
25
February 2016