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[2023] ZAFSHC 135
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R700 Truck Stop (Pty) Ltd v Smit and Others (922/2023) [2023] ZAFSHC 135 (21 April 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 922/2023
In the matter between:
R700
TRUCK STOP (PTY) LTD
Applicant
And
PIETER
IGNATIUS SMIT
1
st
Respondent
MARNU
SMIT
2
nd
Respondent
MELINDA
SMIT
3
rd
Respondent
ESTEAN
SMIT
4
th
Respondent
HOOPSTAD
LANDBOUDIENSTE (PTY) LTD
5
th
Respondent
CORAM:
LOUBSER, J
HEARD ON:
23 MARCH 2023
JUDGEMENT BY:
LOUBSER, J
DELIVERED ON:
The judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released
to SAFLII
on 21 APRIL 2023. The date and time for hand-down is deemed to be 21
APRIL 2023 at 15:00
[1] This
application first came before Bomela, AJ on 22 February 2023 in the
form of an urgent application brought
ex parte
and without
notice to the respondents. On that day, the following orders were
granted:
“
1. The
Applicant’s non-adherence to this court’s rules related
to time periods and service is condoned and the
application is heard
as an urgent application in terms of Rule 6(12).
2. A rule
nisi
is
issued returnable on
23 MARCH 2023
at 09h30, calling upon the
Respondents to show cause, if any, why the following orders should
not be made final:
2.1 The Respondents
are to permanently return to the Applicant the documents and
information listed in annexure “
FA4”
to the
Founding Affidavit;
2.2 Ordering the
Respondents to permanently destroy and/or delete any copy or original
documents or information listed in
annexure “
FA4”
to the Founding Affidavit;
2.3 Interdicting
the Respondents from contacting the Applicant’s clients as
listed in the clientele list as well as
the clients mentioned in
annexure
FA6”
to the Founding Affidavit, for purposes of
obtaining employment and/or to generate sales, and/or to refer the
clients to another
supplier and/or to benefit in any way.
2.4 The First to
Fourth Respondents are to pay the costs of this application.
3. The orders in prayers
2.1 to 2.3 shall serve as interim interdict with immediate effect
pending the aforesaid return date.
4. Pending the aforesaid
return date, that:
4.1 The First,
Third, Fourth and Fifth Respondents or the person on whom service is
effected in terms of paragraph 4.8 below
is ordered to allow the
sheriff, Jaco Jooste (an accountant from Hoopstad Financial Services
acting as an independent supervisor)
together with LH Roux (the
Applicant’s attorney), and Gideon Johannes Pienaar (the
director of the Applicant) accompanying
them, to immediately enter
the following premises, namely
29 Hoofd Street, Hoopstad
, and
any vehicles on such premises, for the purposes of searching for,
examining and downloading onto a computer storage device,
data
identified in annexure “
FA4”
to the Founding
Affidavit
(“the listed items”)
or which any of the
aforementioned persons believe to be listed items, and to deliver to
the sheriff such computer storage
devices.
4.2 The Second
Respondent or the person on whom service is effected in terms of
paragraph 4.8 below is ordered to allow the
sheriff, Jaco Jooste (an
accountant from Hoopstad Financial Services acting as an independent
supervisor) together with LH Roux
(the Applicant’s attorney),
and Gideon Johannes Pienaar (the director of the Applicant)
accompanying them, to immediately
enter the following premises,
namely
9 Voortrekker Street, Hoopstad
and any vehicles on such
premises, for the purposes of searching for, examining and
downloading onto a computer storage device,
data identified in
annexure “
FA4”
to the Founding Affidavit
(“the
listed items”)
or which any of the aforementioned persons
believe to be listed items, and to deliver to the sheriff such
computer storage
devices.
4.3 The Respondents
or the person on whom service is effected in terms of paragraph 4.8
below is ordered to permit the said
persons to remain on the premises
until the search has been completed, and if necessary, to re-enter
the premises on the same or
the following day in order to complete
the search.
4.4 The supervising
party shall, together with the sheriff, make a list of all items
removed by the sheriff in terms of this
order. A copy of this
list shall be handed by the supervising party to the Applicant’s
attorney and to the Respondents
or the person to which service was
effected, if present, and a copy shall be retained by the sheriff.
4.5 In the event
that any of the listed items exist only in computer-readable form,
the Respondents or the person to which
the service was effected, is
ordered to forthwith provide the sheriff with effective access to the
computers, with all necessary
passwords to enable them to be
searched, and cause the listed items to be displayed on the computer
screen so that it may be read
and downloaded by or for the sheriff.
4.6 All computer
storage devices containing the listed items handed to the sheriff
pursuant to this order shall be retained
by the sheriff until the
court orders otherwise. Save as provided that the Applicant
shall be given a copy of the listed
items immediately upon receipt of
such items by the sheriff.
4.7 On the return
day, there shall be placed before the court the report by the
supervising party that a copy thereof was
served on the Applicant’s
attorneys and the Respondents (or their attorney).
4.8 Service of this
order together with the notice to the Respondents shall be effected
by the sheriff on the Respondents
or the person in charge of the
premises and the contents thereof explained by the supervising party
before the provisions of paragraphs
4.1 to 4.3, as the case may be,
of this order are carried out.
4.9 In addition to
the service referred to in paragraph 4.8 above, service of this order
together with the notice of motion
and supporting affidavits and
accompanying notices to the Respondents shall be effected by the
sheriff in accordance with the rules
of court.
4.10 The provisions of
paragraphs 4.1 to 4.4 of this order may only be carried out in the
presence and under the supervision of
the supervising party.”
[2] The respondents
anticipated the return date to 13 March 2023, on which date Reinders,
J postponed the proceedings to 23 March
2023 for hearing, and the
rule nisi
was extended accordingly, with costs to stand over
for later adjudication. On 23 March 2023 the matter came before this
court,
and judgement was reserved after submissions by the respective
counsel appearing for the parties were presented.
[3] The founding
affidavit of the applicant was deposed to by mr. G. J. Pienaar, who
described himself as the sole director
of the applicant company. The
purpose of the application was to have clientele information that
belongs to the applicant and that
was unlawfully removed by the
respondents, returned to the applicant, and to interdict the
respondents from using such information
for their own interest and
benefit, he said in the affidavit.
[4] Mr Pienaar
further stated the following in the affidavit: On 1 October 2021 he
purchased the applicant as a running concern.
It was the business of
the applicant to store diesel in tanks on its premises along the R700
road. Transport companies then purchased
diesel from the applicant
when their trucks pass the premises on the R700. Prior to the
purchase of the applicant, the seller company
outsourced the
day-to-day operations of the business to the 5th respondent, where
the 1st to 4th respondents were employed. When
he purchased the
applicant company, he also purchased the entire list of clientele
from the 5th respondent, for which he paid the
amount of R500 000.00.
Mr Pienaar appended to his affidavit proof of the payment.
[5] It is further
stated in the founding affidavit that the purchase of the clientele
list was part of a verbal agreement
between the applicant,
represented by himself and the 5th
respondent, represented
by the 1st and 4th respondents. In terms of this agreement, the
applicant purchased the entire clientele
from the 5th
respondent, and upon payment of the purchase price, ownership
of the clientele would pass to the applicant. The clientele would be
used for the sole benefit of the applicant, and the 5th respondent
would be refrained from using the clientele for its own or for
its
member’s interests.
[6] Mr Pienaar
further stated that the clientele list with all the specific details
of the clients was then given to the applicant
in the form of an
excel sheet that was stored in a desktop computer on the applicant's
premises. The applicant then also employed
the 1st to 4th respondent
as full-time employees who earned a monthly salary. From then on, the
operations of the applicant were
managed by the 1st to 4th
respondents as the employees of the applicant. They made use of the
details on the clientele list stored
in the computer in order to run
the day-to-day operations of the applicant.
[7] It is further
mentioned in the affidavit that there were negotiations for the
purchase of shares in the applicant by the
1st and 2nd respondents.
The purchase price would be R800 000.00 for the shares, but this
never materialised and the 1st and
2nd respondents consequently never
became shareholders of the applicant. However, the 1st respondent
became a director of the applicant
in October 2021, but he resigned
again on 19 October 2022. He did so because his indebtedness to
creditors prevented the applicant
from obtaining a loan from the bank
at the time.
[8] According to mr.
Pienaar, the 1st respondent was later found guilty of serious
misconduct in that he had made unlawful payments
on behalf of the
applicant to the 5th respondent. It was further found that the 1st
and 2nd respondents were involved in the theft
of diesel from the
applicant to the value of R18 500.00. They agreed to pay back this
amount in a written agreement dated 26 January
2023, which is
appended to the founding affidavit. In this document, the 1st and 2nd
respondents appear to have admitted their
involvement in the theft of
diesel from the applicant. As a result, the services of the 1st
respondent were terminated on 3 February
2023. On the same day, the
2nd, 3rd and 4th respondents resigned from their employment with the
applicant, and the 1st to 4th respondents
left the applicant’s
premises on that day.
[9] When they all
left the premises of the applicant on 3 February 2023, they took the
computer with them which contains,
inter alia, the updated clientele
list, the supplier list with updated contact details and updated
excel sheet with a recon of
diesel purchased by clients and the
amount of diesel that the clients have in credit, as well as the
dates on which they purchased
the diesel, the amount paid, and when
they refuelled. According to mr. Pienaar, WhatsApp messages were
exchanged between him and
the 1st respondent as from 6 February 2023
in respect of this information which the 1st respondent had in his
possession. These
WhatsApp messages are appended to the founding
affidavit.
[10] In the messages mr.
Pienaar demand the return of the “external”, that is the
device the information is stored
on. On 6 February 2023, mr. Pienaar
first demanded that the “external” be brought back the
following day. On 7 February
2023 the 1st respondent responded by
saying “ek sal more by jou uitkom met die external”. On 8
February 2023, the 1st
respondent informed mr. Pienaar that he had to
travel to Bloemfontein urgently and would like to meet with mr.
Pienaar the next
day, namely 9 February 2023. Mr. Pienaar responded
by warning that should the external not be delivered within an hour,
he will
open a criminal case. According to mr. Pienaar, the 1st
respondent failed to respond to his further messages, and the
“external”
with all the information was never returned.
[11] The
information is of vital importance to the applicant, mr. Pienaar
alleged in his affidavit. The applicant uses the
client information
to keep in contact with its clients. Monthly statements are sent to
them to indicate any outstanding payments
due, and when any of them
had not bought diesel recently, such client is contacted to generate
new sales and to ensure that the
applicant retains a favourable
relationship with its clients. In addition, the applicant is now
unable to properly account for
any previous purchases and credit of
the clients without the information, and is therefore unable to
advise the clients on the
status of their accounts. It creates the
impression that the applicant does not have its affairs in order, and
the applicant will
lose business if this continues.
[12] Lastly, mr. Pienaar
mentioned that the applicant needs the information urgently in order
to inform its clients of the new contact
person who has replaced the
1st to 4th respondents. This would serve to prevent the respondents
from contacting the clients directly
and thereby to take the
applicant's business away.
[13] After the granting
of the order by Bomela, AJ, the 1st respondent filed an opposing
affidavit, with the 2nd to 5th respondents
filing confirmatory
affidavits in support thereof. The 1st respondent states in his
affidavit that he owns 42% of the shareholding
in the applicant and
that he is
de facto
a director of the applicant. He denies
that the applicant has ever contracted with the 5th respondent. He
further says that the
information on the external device in his
position had already been delivered to the applicant on 7 February
2023, long before
the application was launched. He points out that
the bookkeeper of the applicant in any event keeps duplicate records
of all the
information sought by the applicant, and mr. Pienaar could
simply have asked for it
[14] The 1st respondent
also referred to the salient background of the matter, and alleged
that during 2021 the then shareholders
of the applicant indicated
their intention to sell the applicant company. He wanted to buy the
company, but he did not have the
capital to pay the purchase price.
His friend at the time, mr. Pienaar, then offered to pay the purchase
price of R1.7 million.
The purchase price was for the business of the
company and for its clientele. The 1st respondent and Pienaar then
agreed that Pienaar
would receive a 58% shareholding in the
applicant, while the 1st respondent would own 42% of the
shareholding. The value of the
42% shareholding was agreed between
the two of them to be R800 000.00, which amount the 1st respondent
would pay to Pienaar through
dividends received and/or profits
received from the applicant's income. Further to this, mr. Pienaar
would pay a sign-on of R500 000.00
to the 1st respondent through
the 1st respondent’s wife, trading as Hoopstad Landboudienste.
The R500 000.00 had nothing
to do with the purchase of clientele
from her or the 5th respondent, he says. It was also agreed that mr.
Pienaar and the 1st respondent
would be directors of the applicant.
[15] According to the 1st
respondent, he and Pienaar then purchased the applicant per their
abovementioned agreement, and they both
became directors of the
applicant. When the applicant started to experience cash flow
difficulties soon thereafter, they applied
for a working capital
loan, but the bank declined the application due to the credit score
of the 1st respondent. The 1st respondent
and Pienaar then resolved
on 1 and 19 October 2022 to remove the 1st respondent from the
applicant’s official CIPC records
as a director for the purpose
of obtaining finance for the applicant. The 1st respondent appended
the resolutions to this effect
to his affidavit. In terms of those
resolutions, the 1st respondent resigned as a director until such
time as the facilities provided
by the bank are registered. In the
meantime, all decisions concerning the applicant must be taken with
the co-operation and with
the consent of both the 1st respondent and
mr. Pienaar. As things turned out, mr. Pienaar never managed to
obtain finance from
the bank thereafter despite the 1st respondent
having been removed as a director. The loan application was declined.
Notwithstanding,
he remained a
de facto
director of the
applicant, the 1st respondent says. He also continued to work for the
applicant and to make contributions to its
operations.
[16] The 1st respondent
also denies that he or the 2nd respondent ever
stole money or
defrauded the applicant. He explained that at the time, he and mr.
Pienaar would obtain funds from other entities
on the pretext that
the applicant had sold fuel to such entities, which never in fact
happened. In turn, the applicant would then
provide credit in the
form of deliverable diesel to the entity. This was all done with
Pienaar’s involvement and consent.
The 1st respondent appended
WhatsApp messages between him and Pienaar, which he alleges to be
proof of his allegations in this
respect. In some instances, the
money so obtained by the 1st respondent would be deposited in his own
account or in the account
of the 2nd respondent.
[17] The 1st respondent
further conceded that he and the 2nd respondent have signed the last
page of the agreement between the parties
dated 26 January 2023, in
terms of which they undertook to pay back the R18 500.00 to the
applicant. They signed this document
under duress, he says, because
Pienaar threatened to have them arrested by the police. On 6 February
2023 Pienaar dismissed him
from his employment, and on the same day
the other respondents resigned and left the applicant's premises. The
1st respondent says
that when he left, he took some of his personal
effects and his external storage device and left the premises. On 7
February 2023
the 4th respondent attended the premises of the
applicant and transferred all the information and duplicated it from
the external
device to Pienaar’s desktop computer. After this,
Pienaar declined the suggestion of a round table meeting and threw
out
all the 1st respondent’s movable property stored at the
applicant's premises on the street, he says.
[18] The 1st respondent
also disputes the authority of Pienaar to act on behalf of the
applicant in these proceedings. He says
that he did not sanction
this, and Pienaar cannot so act in his absence. This is so, because
Pienaar is not the sole director of
the applicant. He, the 1st
respondent, is also a director and still a shareholder of the
applicant.
[19] The 1st
respondent further states that, by virtue of his 42% shareholding, he
also owns the client list. There is no
basis upon which the applicant
can prevent him or any other respondent to trade freely, he says. The
information sought is not
confidential nor worthy of protection by
way of an interdict. Despite this, he had intended to hand over the
information to the
applicant.
[20] In his replying
affidavit, mr. Pienaar states the following: He denies most of the
allegations in the opposing affidavit,
and points out that the
purchase price of R800 000.00 for the shares was never paid by
the 1st respondent. He therefore did
not become a shareholder. The
information contained in the external drive was also not delivered on
7 February 2023. Although the
1st respondent was a director since
October 2021, he resigned on 26 October 2022 and has never been
appointed as a director ever
since. The certificate dated 27 October
2022 and signed by a professional accountant, shows that mr. Pienaar
was the sole director
of the applicant on that date. A CIPC document
shows that the 1st respondent was not again appointed as a director
after his resignation.
Currently the police are investigating a case
of fraud or theft against the 1st and 2nd respondents, and as a
result, the bank
has frozen their accounts. Mr. Pienaar also denies
the allegation that the agreement of 26 January 2023 was signed under
duress.
He furthered denies that the respondents’ property were
thrown out on the street. In this respect he appended WhatsApp
messages
indicating that he warned the respondents in good time to
remove their belongings, and that the 2nd respondent undertook to
make
arrangements to this effect. When the respondents failed to
remove their belongings, mr. Pienaar placed them outside the
applicant's
office on the premises, where they were later collected.
The belongings were not thrown out in the street.
[21] It is further
stated in the replying affidavit that the applicant is not preventing
the respondents to trade freely.
The applicant is merely attempting
to restrain the respondents from contacting its clients, which
clientele the applicant obtained
through a sale agreement. Mr.
Pienaar further suggested that the court refer the issue of the
payment of the R500 000.00 and the
reasons for the payment for oral
evidence, since these issues arose from a
bona fide
dispute
that could not have been foreseen at the launching of the
application.
[22] Now it must be clear
from the above exposition that there is a multiplicity of factual
disputes between the parties on the
papers before the court. In such
circumstances a court may only find in favour of the applicant if it
is satisfied that, on the
facts stated by the respondent together
with the admitted facts in the applicant's affidavits, the applicant
is entitled to relief.
[1]
The court will follow this course in deciding the material issues in
this application.
[23] To begin with, the
respondent states in his opposing affidavit that, per their
agreement, Pienaar paid the purchase price
for the applicant, which
included the business of the applicant and its clientele. While it
remains in dispute that the R500 000.00
paid by Pienaar was for the
clientele, it is not in dispute that Pienaar in fact did pay an
amount of money for the clientele when
he purchased the applicant.
For this reason, it would serve no purpose to refer the reasons for
the payment of the R500 000.00
for oral evidence. Whether Pienaar had
paid that amount or any other amount for the clientele, makes no
difference. The fact remains
that Pienaar had paid something for the
clientele, which fact shows that the clientele was regarded by both
Pienaar and the 1st
respondent as something with value.
[24] The 1st respondent
further states that after his dismissal by Pienaar, he took some of
his personal effects and the external
storage device with the
information of clientele on it with him when he left. It remains in
dispute whether the information on
the external device were
transferred to Pienaar's desktop computer on 7 February 2023. The 1st
respondent states that he had intended
to hand over the information
to Pienaar. If this was the position on 7 February 2023 it does not
make sense because the 1st respondent
had sent a message to Pienaar
on the same day saying that he would return the external device the
following day, 8 February 2023.
It follows that Pienaar’s
evidence must be accepted that the 1st respondent is still in
possession of the external device
because it was not returned on 8
February 2023. It must also be accepted that the information on the
device were not transferred
on 7 February 2023.
Therefore, the
information sought by Pienaar, which he had purchased on behalf of
the applicant, is still in possession of the 1st
respondent.
[25] The respondents
provide no explanation for their possession of the information. The
only reason one can think of is that they
want to use the information
for their own purposes and benefit. In any event, if they have no
intention of doing so, then the final
relief sought in this
application will not affect them.
[26] The 1st respondent’s
stance that he is a director and a shareholder of the applicant, is
without any substance. Since
the applicant never managed to get a
loan from the bank, the 1st respondent never became restored in his
position as a director.
The claim of the 1st respondent that he is a
de facto
director of the applicant, is also without any merit.
The official documentation show that he is not a director at all. In
addition,
there is no merit in his averment that he is still a
shareholder of the applicant. On the contrary, he has not paid the
R800 000.00
for his shareholding and he can therefore not claim
to be a shareholder at all. Also keeping in mind that the 1st
respondent was
dismissed before the application was launched, I find
that mr. Pienaar had the necessary
locus standi
to launch
these proceedings on behalf of the applicant.
[27] The allegation that
the 1st and 2nd respondents signed the document under duress,
acknowledging their indebtedness to applicant
because of theft and
fraud, must also be rejected. If they had such a solid defence to
such charges as they make out in the opposing
papers, one can only
wonder why they were afraid of the police at the time.
[28] A further
unsatisfactory element of the respondents’ version appear from
the allegations that the 1st respondent's possessions
were thrown out
on the street by Mr Pienaar. Mr Pienaar produced WhatsApp messages
showing that he had requested the removal of
the positions in good
time, and that the 2nd respondent had undertaken to remove same. It
was therefore not a situation where the
possessions were simply
thrown out without formality.
[29] The respondents
contend that the information sought is not confidential nor worthy of
protection by way of an interdict. If
this was the case, then the
question arises why the 1st respondent, on his own version, intended
to hand over the information to
the applicant. According to him, the
information was indeed handed over on the 7th February 2023 by the
4th respondent. If this
was the case, the further question arises why
the applicant had deemed it necessary to launch this application. In
this respect
it needs mentioning that the case for the applicant goes
further than a mere reliance on the confidentiality of the
information.
Its case is also based on the fact that mr Pienaar had
paid for the clientele list, that the applicant needs the list to
stay in
contact with its clients in order to conduct its business
properly, and that the respondents should be prevented from using the
list to the prejudice of the applicant.
[30] The conclusion is
inevitable that the applicant is the owner of the clientele list and
the information relating to each client.
A final order will not
prevent the respondents from trading freely. It will only prevent
them from using the information on the
clientele list in doing so.
[31] As far as paragraph
4 of the order made by Bomela, AJ is concerned, the supervising party
did provide the court with his report.
In the report, he informs that
the 1st respondent has handed over a computer box and an external
hard drive to him. Since very
little information could be gained from
these sources because of an absence of passwords, it was sent to
specialists in Johannesburg
to be examined forensically. This task is
still ongoing, according to the report.
[32] Having regard to the
version presented by the respondents, it is common cause that the
applicant had paid for the clientele
list, that the 1st respondent
had removed the external device with all the clientele information
stored on it, that the respondents
are still in possession of the
device, and that they are refusing to return it. I am therefore of
the view that a punitive costs
order would be appropriate. The
following order is made:
1. The rule nisi issued
by Bomela, AJ is confirmed and made a final order of court.
2. The respondents are
ordered to pay the applicant’s costs on the attorney and client
scale, inclusive of the costs occasioned
by the postponement of the
application on 13 March 2023.
P. J. LOUBSER, J
For
the applicant:
Adv.
M. C. M. Pieterse
Instructed
by:
Pieter Skein Attorneys
Bloemfontein
For
the respondents:
Adv.
S. Grobler SC
Instructed
by:
Kruger
Venter Attorneys
Bloemfontein
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634-635