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2023
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[2023] ZAFSHC 151
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Vamara South Africa (Pty) Ltd and Another v Weltevrede Boerdery (Pty) Ltd and Others (4662/2022) [2023] ZAFSHC 151 (9 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 4662/2022
In
the matter of:
VAMARA
SOUTH AFRICA (PTY) LTD
FIRST APPLICANT
RE
GROUNDNUTS (PTY) LTD
SECOND APPLICANT
and
WELTEVREDE
BOERDERY (PTY) LTD
FIRST RESPONDENT
ABRAHAM
JOHANNES VENTER
SECOND RESPONDENT
STERUMA
TRUST
THIRD RESPONDENT
CORAM:
NAIDOO, J
HEARD
ON:
1 DECEMBER
2022
DELIVERED
ON: 9
MAY 2023
JUDGMENT
[1]
This matter came before this court as an urgent
ex parte
application where the applicants sought the issue of a
rule nisi
for relief in two parts – Part A and Part B. The order they
sought urgently was in respect of Part A, and such order was
granted
on 23 September 2022. The application and order were served on the
first respondent (Weltevrede), and second respondent
(Venter). The
Sheriff simultaneously attached a large number of assets of
Weltevrede, which included motor vehicles, farming vehicles,
equipment and other movable assets. Shortly thereafter an application
was brought to join the third respondent Steruma Trust (the
Trust),
which application was not opposed. The joinder was granted by
agreement between the parties on 27 October 2022, and a time
frame
set for the filing of Answering and Replying Affidavits. The matter
was then postponed to the opposed Motion Roll. After
the rule nisi
was extended, the matter was scheduled for hearing on 1 December
2022. The Trust launched a counter-application which
was set down for
hearing simultaneously with the main application. The
counter-application was opposed by the applicants. Adv JLC
Morland
represented the applicants, and Adv JE Kruger represented the Trust.
Weltevrede and Venter were not represented and were
not present at
the hearing.
[2]
The applicant sought orders in Part A and Part B in the main
application following terms:
“
PART
A
1.
That non-compliance with the ordinary rules and service be dispensed
with to hear this matter as one of urgency
in terms of Rule 6(12).
2.
A rule nisi is issued calling upon the first and second respondents
to show cause on Thursday 6 October 2022
at 9.30 or as soon
thereafter as counsel may be heard, to show cause why the following
Orders should not be made final:
2,1
The assets described in the annexed “Annexure A: Asset
List” forming
part of
Annexure “FA7” herein, be attached by the sheriff and an
inventory of all
such attached assets be produced by the Sheriff.
2.2
The aforesaid assets shall remain under attachment and the first and
second respondents shall be interdicted
and restrained from removing
those attached assets from the premises known as The Farm Geduld,
Remaining extent ERF 37 Wesselbron.
Free State.
2.3
The aforesaid attachment and interdict against removal shall pend
(sic) the finalisation hereof.
2.4
The first and second respondent be interdicted from selling crop
(
Groundnuts
), which forms the subject matter of the crop
purchase agreement, dated 15 November 2021, any third party (sic).
2.5
The first and second respondent be interdicted and restrained from
obstructing, or in any manner impeding,
the first and second
applicant’s collection of the aforesaid Groundnut crop from the
premises of the first and second respondent,
situate at the Farm
Geduld, Remaining extent ERF 37, Wesselsbron, Free State.
2.6
In the circumstances of the first respondent refusing or failing to
attend to the harvest of the Groundnut
crop, the applicants shall be
entitled to attend to such harvest themselves. The right of the
applicant’s to attend to the
harvest shall include the
following:
2.6.1
access, to the premises situate at The Farm Geduld, Remaining extent
ERF 37, Wesselsbron, Free State, for the
purposes of attending to
harvesting of the Groundnut crop.
2.6.2
Access for harvesting purposes shall be from 6am to 6pm, or such
extended period as may be reasonably required
to give effect to this
Order.
2.6.3
The applicants shall attend to the harvest with their equipment at
their own expense.
2.6.4
The first respondent shall provide such reasonable assistance to the
applicants for the purposes of giving effect
to this order.
2.6.5
The first and second respondents are interdicted and restrained from
obstructing or impeding the applicant from
giving effect to this
order.”
3
Prayers 2.4, 2.5 and 2.6 hereof shall be immediately operable.
4.
The applicants shall be entitled to place their own 24-hour at the
aforesaid
premises of the first respondent security (sic) situate at,
the Farm Geduld, Remaining ERF 37, Wesselsbron, Free State for the
purposes of securing the crop.
5.
The applicant may supplement its papers with such additional items as
may be
appropriate in respect of Part B hereof.
6.
The respondents are entitled to the return date after 24 hours
written notice
to the Applicant’s attorney.
7.
The matter to return to this court on 6 October 2022 at 9.30.
7.
(Sic) The cost of the
application are to be determined on the return date.
8.
Further and/or alternative relief.”
PART
B
1.
Judgment against the first respondent in the amount of R10 332 482.48
2.
Judgment against the second respondent in the amount of
R10 332 482.48
3.
Costs of suit at the attorney and client scale;
4.
Further and/or alternative relief.”
[3]
The Trust issued a counter-application, seeking, in essence, an order
declaring it to be
the owner of a large number of the assets of
Weltevrede that the sheriff placed under attachment on behalf of the
applicants, an
order for Weltevrede to return those assets to the
Trust and for Welteverede and Venter to pay the costs of the
counter-application.
As I indicated the applicants opposed the
counter-application, and gave detailed evidence and facts in support
of their denial
that the Trust was in fact owner of the assets it
claims to own. They also assailed the authority of the deponent of
the Founding
Affidavit to institute the counter-application.
[4]
The main application has its genesis in a crop purchase agreement
entered into between the
second applicant, RE Groundnuts (Pty) Ltd
(RE Groundnuts) and Weltevrede, represented by Venter. RE Groundnuts
is a wholly-owned
subsidiary of the first applicant, Vamara South
Africa (Pty) Ltd (Vamara). RE Groundnuts is described as a
manufacturer, supplier,
marketer and trader of foodstuffs and
commodities. It purchased from Weltevrede 1000 metric tons of a crop
of peanuts grown by
Welteverede. The parties agreed on prices payable
in respect of various grades of peanuts that were yielded from that
crop, which
was to be delivered to the applicants on 30 April 2022.
Weltevrede also ceded to Vamara all the crops and proceeds, in terms
of
the trading account debt that it held with the applicants. Such
cession was security for Weltevrede’s obligations to the
applicants.
[5]
Weltevrede failed to deliver the crop
or comply with the terms of the crop purchase agreement.
It was
subsequently discovered by the applicants that Wetevrede, represented
by Venter, had encumbered the crop in favour of other
third parties.
Thereafter Weltevrede was placed under provisional liquidation, and
in order to protect their own interests, the
applicants agreed to pay
Weltevrede’s
debt in order to prevent a final order of liquidation from being
granted. Thereafter Weltevrede, again represented
by Venter, signed
an Acknowledgement of Debt (AOD) in favour of Vamara in the total
amount of Ten Million Three Hundred and Thirty
Two Thousand Four
Hundred and Eighty Two Rand and Forty Eight Cents (R10 332 482.48).
As security for the amount of its
indebtedness, Weltevrede, ceded to
Vamara the movable assets listed in Annexure "A” to the
AOD. It was most of these
assets that were attached by the Sheriff.
[6]
Neither Weltevrede nor Venter opposed the main application. It was
only the Trust which
launched the counter-application. At the hearing
of this matter, Mr Kruger placed on record that he represented only
the Trust
and opposed only Part A of the Notice of Motion in the main
application. He held no instructions to oppose Part B. Weltevrede and
Venter were not represented or present at the hearing of this matter.
The counter-application was fully argued at the hearing of
this
matter. As there was no opposition at all to Part B, Mr Morland moved
for an order as per the amended Part B, which was granted
in the
terms set out earlier in this judgment.
[7]
After the matter was argued in court, the Trust, as represented by
its Trustees, filed a
Notice of Withdrawal, withdrawing the
counter-application and renouncing any rights that might have been
established as a result
of the launching of the counter-application.
It is for this reason that I refrained from dealing, in this
judgment, in any detail
with the arguments put forward in respect of
the counter-application during the hearing of this matter. The
withdrawal thereof
has rendered such an exercise unnecessary.
[8]
I turn now to deal with the orders sought by the applicants. As I
indicated, neither Weltevrede nor
Venter opposed the main
application, in spite of personal service being effected on them. The
applicants set out in detail the
manner in which Weltevrede’s
liability to them arose. They also demonstrated that Venter, as the
sole director and controlling
mind of Weltevrede, who not only
conducted the business of the latter in insolvent circumstances, but
made fraudulent misrepresentations
that the crops purchased by the
applicants were unencumbered, repeatedly breached agreements reached
with the applicants to secure
their claims, by refusing access to the
farm, to members of the applicants’ staff, and also repeatedly
threatened to sell
to third parties, the crops which were sold to the
applicant. It was discovered by the applicants that Venter was, in
fact, secretly
selling, to third parties, the crops purchased and
paid for by the applicants.
[9]
The applicants have demonstrated that Venter acted
male fides
in conducting the business of Weltevrede, contrary to his fiduciary
duties as a director, as provided for in the
Companies Act 71 of
2008
, and would be subject to the sanctions stipulated therein. In my
view, there is no reason why the
rule nisi
issued on 23
September 2022, as extended, should not be confirmed. This is
particularly so that, in spite of the applicants recovering
an amount
of One Million Four Hundred and Sixty Three Thousand Three Hundred
and Forty Six Rand and Five Cents (R1 463 346.05)
from part
of the crops delivered to them by Venter, the remaining crops would
not yield a sufficient amount to settle the entire
debt due to the
applicants. There is no opposition to Part B of the Notice of Motion,
and I see no bar to the grant of the relief
sought therein.
However,
I am of the view that it would be improper to order each of the
respondents to pay the amount claimed. The applicants are
owed only
R10 332 482.48 but would technically be able to claim the
amount twice if each of the respondents were separately
ordered to
pay that amount. It would be more equitable to order them both to pay
the said amount, the one paying the other to be
absolved. The
applicants have made no submissions in this regard to justify the
order in the terms that they seek. With regard
to costs, which are in
the discretion of the court, there is no reason why the costs should
not follow the result.
[10]
In the circumstances I make the following order:
10.1
The
rule nisi
, granted on 23 September 2022, as extended, is
confirmed;
10.2
Judgment as per Part B of the Notice of Motion is granted as follows:
The
first and second respondents are ordered to pay to the applicants the
amount of Ten Million Three Hundred and Thirty Two Thousand
Four
Hundred and Eighty Two Rand and Forty Eight Cents (R10 332 482.48),
the one paying the other to be absolved;
10.3
The first and second respondents are ordered to pay the applicants’
costs on the attorney and client
scale, the one paying the other to
be absolved.
_____________________
S
NAIDOO J
On
Behalf of the Applicants:
Adv
LCM Morland
Instructed
by:
Bezuidenhouts
Inc
104
Kellner Street
Westdene
Bloemfontein
(Ref:
D Milton/ID2519)
On
Behalf of the 3
rd
Respondent:
Adv
JE Kruger
Instructed
by:
Muller
Attorneys
Potchefstroom
simone1@mullerlegal.co.za
c/o
Graham Attorneys
14A
Torbet Street
Noordhoek
Bloemfontein
(Ref:
Charne Nel/EAL1/0086NN)