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2024
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[2024] ZAFSHC 57
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Eco Trades (Pty) Ltd v Trustees for the Time Being of the DA Pauw Trust and Others (453/2023) [2024] ZAFSHC 57 (29 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
Number:
4531/2023
In
the Application between:
ECO
TRADES (PTY) LTD
APPLICANT
And
TRUSTEES
FOR THE TIME BEING OF THE DA PAUW TRUST
1
ST
RESPONDENT
TRUSTEES
FOR THE TIME BEING PAVONIA TRUST
2
ND
RESPONDENT
DANIEL
AUGUST PAUW N.O.
3
RD
RESPONDENT
CORAM
:
BOONZAAIER AJ
HEARD
ON:
1
ST
FEBRUARY 2024
DELIVERED
ON
:
29
th
FEBRUARY 2024
JUDGMENT
INTRODUCTION:
[1] This
is an application for vindicatory relief by way of motion
proceedings.
[2]
The issues at stake are the following:
i)
the question of jurisdiction of this court;
ii)
the applicant to make out a case for the final relief sought, based
on the
rei
vindicatio.
iii)The
Applicant has approached the court on motion proceedings with the
knowledge of a foreseeable factual dispute and thus the
application
stands to be dismissed with costs
[3]
The subject of the relief sought (‘the
solar system
“) has been affixed to property on a farm
in the North West Province.
FACTUAL
BACKGROUND:
[4]
The Applicant, is a company with
principal place of business, alternatively, registered
address
situated at 4 Soutpansberg Avenue, Spitskop, Langenhovenpark,
Bloemfontein and with sales offices situated at 109 Elias
Motsoaledi
Street, Langenhovenpark, Bloemfontein.
[5]
First Respondent is the Trustees for
the Time Being of the DA Pauw Trust, Second Respondent is
the
Trustees for the Time Being of the Pavonia Trust, both not resident
within the courts’ jurisdiction.
[6]
The Third Respondent passed away. The parties conceded
to the fact
that the deceased’
s son had the same initials as his father, hereinafter called (“DA
Pauw”).
The latter was also the person who is
the deponent in the founding affidavit of the First and Second
Respondents. He is a trustee
of both the First and the Second
Respondent and he acted as representative of the First and Second
Respondents.
[7]
The
Applicant delivered the solar system to the farm Bothmasrust,
allegedly area
Hendrina,
which farm is registered in the name of the First Respondent and the
solar
system is presently in the possession of the First and Second
Respondents
jointly
in the district of Vryburg, North West. [“NW”]
UNDISPUTED
FACTS:
[8]
It is undisputed that the solar electricity system is
still in existence and is identifiable.
[9]
It is also not disputed that the First Respondent has
failed to pay the agreed purchase price to the Applicant.
[10]
It is common cause between the parties that the Applicant
sent a quotation to the First Respondent and the deponent
to the
Respondent’s answering affidavit (“DA Pauw”)
appended his signature thereto. Annexure “
FA2”
APPLICANT`S
CASE:
[11]
In terms of the quotation, ownership of all goods
delivered and installed by the Applicant remained vested in
the
Applicant until such time as the purchase price, R 1,534.100.00 was
paid in full. DA Pauw signed the said quotation
thereby
accepting the Applicant’s terms and conditions contained
therein at the Applicant`s business premises in Bloemfontein.
In
these premises the agreement was finally concluded between the
Applicant and the First Respondent at Bloemfontein.
[12]
It is also the Applicant’s case that the Applicant
sold the solar system consisting of the movable
assets to the First
Respondent (represented by DA Pauw) in terms of a partially written,
partially verbal agreement (“
the agreement”
).
[13]
Mr. Van der Merwe, counsel
for Applicant, submitted that in terms of the agreement,
the
Applicant retained ownership of the solar system.
[14]
The Applicant’s claim against the First Respondent
is thus founded in contract and is premised
also on
the
rei vindicatio
whereas the Applicant’s claim against
the Second Respondent is purely vindicatory.
[15]
Mr. van der Merwe directed the Court’s
attention to the terms set out in the quotation [Annexure “
FA2”]
which terms he submitted were accepted by the First Respondent, due
to the signature of DA Pauw on the quotation.
[16]
The Applicant is therefore owner of the solar
system, is entitled to take possession thereof as against
the First
and Second Respondents who in turn, have no contractual right or
other right in law to remain in possession thereof.
RESPONDENTS’
CASE:
[17]
Counsel
for the First and Second Respondents referred the court to
Cordiant
Trading CC v Daimler Chrysler Financial Services Pty Ltd
[1]
where
Jafta JA succinctly put it as follows:
“
Plainly,
what is meant in the above interpretation is that ‘causes
arising’… does not refer to causes of action
but to all
factors giving rise to jurisdiction under the common law.”
[18]
Counsel argued that the issue is therefore whether
the legal proceedings in this application can be said
to have arisen
within the area of jurisdiction of this court.
[19]
Respondents rely on what was stated in
Zokufa v
Compuscan (Credit
Bureau)
[2]
“
[32]
The legal proceedings are based on facts from which legal inferences
may be drawn. These facts are often referred to as the
‘jurisdictional connecting factors’ and will continue to
use this description when referring to these facts.
[33]
The approach generally in considering jurisdictional connecting
factors is now, I believe, firmly established by the supreme
Court of
Appeal. The enquiry depends on
(a)the
nature of the proceedings; the nature of the relief claimed herein;
or (c) in some cases, both on (a)and (b).”
[20]
In
Erasmus
v Snyders
[3]
it
was held that:
“
Jurisdiction
is a license for an aggrieved individual to enter a court of law and
persuade it that it has the power and competency
to receive and
determine his or her case. In the matter between Gallo
Africa Ltd & others v Sting Music (Pty) Ltd
& 7 others, Harms
DJ supported by other members of the court opined as follows:
‘
Jurisdiction
means the power vested in a court to adjudicate upon, determine and
dispose of a matter. Importantly, it is territorial.
The disposal of
a jurisdictional challenge on exception entails no more than a
factual enquiry
, with
reference to the particulars of claim, and only the particulars of
claim, to establish the nature of the right that
is being asserted in
support of the claim.
In other words,
jurisdiction depends on either the nature of the proceedings or the
nature of the relief claimed or, in some cases,
on both. It does not
depend on the substantive merits of the case or the defence relied
upon by a defendant’
”
(Own emphasis
added).
[21]
First and Second Respondents argued that it is evident from above
that the
onus
rests on the Applicant to prove if the cause
of action arose wholly within the district.
[22]
The First and Second Respondents also raised the
issue of a material dispute of facts which they argued
is clear from
the papers.
[23]
Mr. Jagga pointed it out that if one has regard to
Annexure “
FA2”
it contains the following two
pertinent conditions;
“
a.
Eco Trades Full terms & Conditions of the Sale & Installation
apply. The ownership
of the goods delivered, installed and supplied
by Eco Trades will remain vested in the Applicant until
the purchase
price has been paid in full.
b.
Payment terms are determined to be:
i)
upon order placement-30 %;
ii)
Material on site -40 %; and
iii)
Commissioning-30. %”
[24]
Annexure “
FA5”,
being a tax
invoice of Eco Trade to DA Pauw states that 100 % payment needs to
take place in advance and further no product will
be released before
payment is not released by the bank.
“
No
products will be released before payment is not cleared by the bank.”
[25]
Hence the above stated documents leave no doubt
that at the time of the invoice, there was already a deviation
from
the terms and conditions.
[26]
Mr. Jagga submitted that from Applicant`s own
documentation and policies it is clear that they delivered
the solar
system well aware that payment has not been effected. Applicant was
aware of the fact that Europlaw, who was registered
in Europe and who
was supposed to finance the solar venture did not honor their promise
for financial support to First and Second
Respondents.
[27]
It is the First and Second Respondents case that
the Respondent’s awaited financial assistance from
Europlaw (as
represented by attorney Hanno Bekker from Bloemfontein). This
financial support was crucial to the First and Second
Respondents to
obtain the solar system.
[28]
At the time of the conclusion of the agreement the
Applicant was represented by Mr. Gerhard van der Linde
and later Mr.
Janco Lubbe. The Applicant does not reveal what this agreement
entails. Mr Lubbe (the Applicant`s representative
in Vryburg, NW)
provided a written quotation to DA Pauw on 14 October 2020.The
quotation itself does not denote a place where it
was signed.
[29]
The First and Second Respondent is therefore of
the view that the quotation does not constitute a lawful
or binding
agreement and was not signed and accepted in Bloemfontein.
[30]
The First and Second Respondents are adamant that
the agreement was concluded in the area of Vryburg, NW.
[31]
Argument advanced for first and Second Respondents makes it
clear that the Applicant did not prove on its
papers that it retained
ownership.
.
DISPUTED
FACTS:
[32]
It is disputed by the Respondents that the agreement
concluded between the parties have been concluded in Bloemfontein.
[33]
The parties also dispute the terms and conditions
of both the verbal and the written agreements.
[34]
It is a further dispute between the parties
whether a dispute of facts presented that should have been
foreseeable by Applicant.
TO
CONSIDER:
[35]
The court is to consider whether:
a)
this court has jurisdiction to adjudicate the matter.
b)
the Applicant retained ownership of the solar system after it was
installed on the First Respondents farm.
c)
the term contained in the quotation Annexure “
FA2”
to
the founding affidavit formed part of the agreement ultimately
concluded between the parties.
d)
there was a factual dispute foreseeable on the papers.
e)
the Applicant disposed of the
onus
of proof.
JURISDICTION:
[36]
The Respondent raises the issue that the agreement between the
Applicant and the First Respondent was not concluded in
Bloemfontein.
The First and Second Respondents allege that;
i)
The deponent to the
Applicant’s founding affidavit never had any interactions ‘with
any person in this matter’;
ii)
At the time that the
agreement was concluded, the Applicant was represented, allegedly by
Mr. Gerhard van der Linde and later by
Mr. Jan Lubbe;
iii)
The quotation,
Annexure “
FA2”
to the Applicant’s
founding affidavit] does not constitute a ‘lawful and binding
agreement’ and was not signed
and accepted in Bloemfontein; and
iv)
The agreement “was
concluded in the area of Vryburg and area of Hendrina and later the
farm Bothmasrust”, NW.
v)
Tellingly, the
deponent does not deny that he signed Annexure “
FA2”
to the
Applicant’s founding affidavit, nor does he explain to the
Court where he was when he appended his signature thereto
on behalf
of the First Respondent.
vi)
The First and Second
Respondents have placed cogent evidence before the Court which shows
that the Applicant`s version in respect
of where the agreement
between the parties was concluded stands to be rejected.
[37]
The
Supreme
Court Act,
[4]
was
repealed by
section
55
of
the
Superior
Courts Act,
[5]
10
of
2013
which
came into operation on 29 August 2013.
Section
21
of
the latter act provides for the jurisdiction of the High Court of
South Africa in terms which are (for present purposes) the
same as
those of the said
section
19
of
Act 59 of 1959.
The
relevant parts of
Section
21 of Act 10 of 2013
read
as follows:
“
Persons
over whom and matters in relation to which Divisions have
jurisdiction.
(1)
A Division has
jurisdiction over all persons residing or being in, and in relation
to all causes arising and all offences triable
within, its area of
jurisdiction and all other matters of which it may according to law
take cognisance, and has the power …
”
[38]
It is trite law that Applicant bears the
onus
of establishing the court`s jurisdiction and to satisfy a conclusion
of jurisdiction. The Applicant must prove that the whole of
the legal
proceedings has arisen within the jurisdiction of this Court.
[39]
The main
contention between the parties is if the whole cause of action in the
present matter arose within Bloemfontein where the
Applicant`s
principle place of business is and where the written agreement was
concluded, or in North West where the First and
Second Respondents’
accepted the oral agreement. The First and Second Respondents to the
litigation were also domiciled within
that jurisdiction at the time
when the present action was instituted.
[40]
It is undisputed that the farm in respect whereof
the moveable’s were attached and affixed is not
in the
jurisdiction area of this court.
[41]
With regard to Annexure “
F2”:
i)
Annexure “
F2”
to the founding affidavit does not contain any evidence where it was
signed and by whom it was signed.
ii)
First and Second Respondent are
adamant that the quotation did not constitute the entire
agreement as
the parties also entered into a verbal agreement.
iii)
First and Second Respondents further make it
clear that the verbal agreement which was concluded by
Mr. Lubbe and
Mr.van der Linde was concluded in the district of Vryburg, area
Hendrina and Bothmasrust (NW) itself.
iv)
Hence the First and Second Respondent`s
submission that the Applicant did not address the issue that
the
whole cause of jurisdiction arose within this court’s
jurisdiction.
LEGAL
PRINCIPLES:
[42]
Rule 6(5)(g) of the Uniform Rules
provides that where there is
a material and
bona fide
dispute of fact that cannot
be decided on the papers, a court is faced with three alternatives:
a)
it may dismiss the application,
b)
or direct that oral evidence be heard on specified issues,
c)
or refer the matter to trial.
A
court is not restricted to the listed remedies and may make any order
it deems fit and which is directed at ensuring a just and
expeditious
decision.
[43]
In
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[6]
it
was made clear what needs to be considered where a
material fact arises which cannot be resolved by
viva
voce
evidence,
the
court may either direct the parties to
trial
or
dismiss the application with costs.
[43]
In order for an owner to succeed with the
Rei
Vincicatio
the Applicant must proof
that:
(a)
he is the owner of the solar system;
(b)
that the other party was in possession of the solar system at
the time of the commencement of the application; and
that
the item in question is still in existence and clearly
identifiable
.
The
Constitutional Court has confirmed the legal requirements for this
remedy in
Van
der Merwe and Another v Taylor.
[7]
[44]
Additionally, it is settled in our law that where the contract was
concluded and/or where the breach occurred,
this will be enough to
warrant the basis for jurisdiction.
[8]
[45]
The disputes of facts which emerge on the papers, were capable of
being determined on the basis of common
cause facts. It is now well
established on the basis of
National
Director of Public Prosecutions v Zuma:
[9]
“
[2]Motion proceedings, unless concerned with interim relief, are all about the resolution
of legal issues based on common cause facts. Unless the
circumstances are special, they cannot be used to resolve factual
issues because they are not designed to determine probabilities.”
[46]
Added to this is the approach to be adopted when factual disputes
arise on the papers. The pronouncement
on the topic
is Wightman
tla JW Construction v Headfour (Pty) Ltd and another
[10]
where
Heher JA set out a useful guide to be employed in determining whether
there exists a real, genuine and
bona
fide
dispute
of fact. The Court said the following:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must, in the event of conflict, accept the version
set up by his opponent unless the latter's allegations
are, in the
opinion of the court, not such as to raise a real, genuine or bona
fide dispute of fact or are so far-fetched or clearly
untenable that
the court is justified in rejecting them merely on the
papers: Plascon Evans Paints Ltd v Van Riebeeck
Paints
(Pty) Ltd
[11]
.
[13] A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports
to raise the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course
be instances where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more
can therefore be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the
averring party and no basis is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that
the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if
they be not true or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the court
will generally have
difficulty in finding that the test is satisfied.
I say "generally" because factual averments seldom stand
apart from
a broader matrix of circumstances all of which needs to be
borne in mind when arriving at a decision.”
DISCUSSION:
[47]
Assuming that the Applicant is correct (which are not admitted by the
First and Second
Respondents), it
ought to have been self-evident from the Respondent's opposing papers
that a dispute of fact existed in relation
to the written and oral
contractual claim, which could not be resolved on the papers.
Importantly, the problem I encounter with
the Applicant's view that
the matter can be resolved on the papers is the fact that from their
own account it is not clear what
actually transpired between the
parties or where the contract was concluded.
[48]
The Applicant`s founding papers pay scant regard to pleading the
terms of the contract between the
parties. Counsel for the First and
Second Respondents submit that the papers are devoid of any agreement
being reached between
the First and Second Respondents and the
Applicant with regard to ownership of the solar system. The latter,
at best for the Applicant,
installed the solar system, it was
accepted by First Respondent which is still in possession thereof.
[49]
There is nothing on the papers to indicate what
exactly the terms and conditions entail with regards to
the verbal
and written contract. This court will have to speculate to the
agreed terms.
[50]
It is for this reason that the First and Second Respondents in their
answering affidavit aver that –
a)institution of motion proceedings renders the Applicant's case without any prospect
of success and - given that it was instituted in the face
of the Applicant's own admission that there was a dispute;
b)
it warrants a dismissal of the application.
c)
the Applicant fails to acquit itself from this
onus.
[51]
It is well established that while the court has a discretion in
deciding whether to allow a referral to oral
evidence, the court will
dismiss an application if the Applicant should have realised when
launching his application that a serious
dispute of fact, incapable
of resolution on the papers, was bound to develop.
[52]
In my view, the Applicant elected to proceed by way of motion
proceedings when it ought to have been
clear to it and its legal
representatives that a dispute of fact was bound to emerge, which a
court would not be able to decide
on the papers. As stated earlier, a
reading of the founding affidavit conveys the impression of a dispute
between the litigants
in regard to the verbal agreement as well as
the jurisdiction aspect. Neither of these disputes conceivably could
have been resolved
on the papers. On the contrary, I am of the view
that there should have been, in the alternative, a referral to trial.
That, was
in casu
not requested by either of the parties.
CONCLUSION:
[53]
I found it prudent at the time of the hearing of
the application not to decide on the point
in
limine
at
that stage. The facts are intertwined and an overview of all the
facts had to be considered. At the end it seems this court does
not
have the jurisdiction to adjudicate upon this matter.
[54]
The Applicant avers that the agreement entered into was
both in writing and
verbal
without elaborating what the verbal part entails.
[55]
It does also not set out in the founding affidavit what exactly the
terms of the oral agreement were and
where it was concluded.
[56]
Applicant further avers that on the 4
th
November 2020 D A
Pauw signed the said quotation accepting the Applicants terms and
conditions therein at the Applicants premises
in Bloemfontein, hence
the agreement was finally concluded in Bloemfontein. No explanation
was given how the verbal part of the
agreement must be incorporated
to understand the whole agreement.
[57]
The Applicant attached Annexures “
FA1”
and “
FA
2”
to be regarded. This court cannot decide on the papers
if this signature on Annexure”
FA2”
of DA Pauw was
indeed an acceptance of the quotation with the implied term that the
further terms of the agreement is also accepted
by him.
[58]
Of course, it may be
argued that given the fractious nature of the correspondence between
the parties and the promised payment which
did not realise before the
application was launched, a dispute of some sort would arise. But
more is required than the possibility
of a dispute arising. What is
required is that an Applicant should realise prior to the launch of
the Application that a serious
dispute of fact was bound to develop.
[59]
The Applicant should have referred the matter to oral evidence on the
basis that Applicant
should have foreseen that a
material dispute of fact would arise that could not be resolved on
the papers.
[60] In
Mamadi
and Another v Premier of Limpopo Province and Others
,
[12]
the
Constitutional
Court, referring to the power of dismissal in rule 6(5)(g), said that
“
it
serves to punish litigants for the improper use of motion
proceedings”
[61]
In light of the authorities which I have referred to above, it is not
possible for me to make any determination on the
papers as to the
relief sought by the Applicant. This situation could have been
averted by the Applicant proceeding by way of an
action or referral
to trial. In the result, I am of the view that a robust and
common-sense approach should prevail. The proper
order which must
follow, having regard to the circumstances, is that the application
should be dismissed.
ORDER:
1.
This court does not
have jurisdiction to adjudicate the matter.
2.
The application for
vindicatory relief is dismissed with costs on a party and party
scale.
AS
BOONZAAIER AJ
Appearances
For the Applicant:
Mr
R van der Merwe
Instructed
by:
B
Jones
Honey
Attorneys
Address:
1
st
Floor, Honey Chambers
Nortridge
Mall
BLOEMFONTEIN
Ref:
134309/BM
JONES/ Rochelle/it
For the 1
st
and 2
nd
Respondents
:
Mr
Yagga
Instructed
by:
Du
Plessis – Viviers Inc
Address:
c/o
Jacobs Fourie Attorneys
158
Zastron Street Westdene
BLOEMFONTEIN
[1]
(237/2004)
[2005] ZASCA 50 [2006] ALL SA 103 (SCA)
[2]
2011(1)
SA 272 (ECM)
[3]
Gauteng
High Court of Appeal Case A 69/2021
[4]
59 of 1959
[5]
10
of 2013
[6]
1949
(3) SA 1155
(T)
[7]
2008(1) SA 1 (CC)
[8]
Giddey
NO v JC Barnard & Partners
[2006]
ZACC 13
;
2007
(5) SA 525
(CC) at
para [19]
.
[9]
[2009]
2 All SA 243
(SCA)
para 26.
[10]
[2008]
ZASCA6;2008(3) SA 371 (SCA) at para 13.
[11]
[1984]
ZASCA 51
;
1984
(3) SA 623
(A)
at 634E - 635C...
[12]
[2022]
ZACC 26.