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[2023] ZAFSHC 277
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Sumeil (Pty) Ltd v Coogal Finance (Pty) Ltd and Another (A120/2022) [2023] ZAFSHC 277 (14 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
APPEAL
No:
A120/2022
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In
the appeal of:
SUMEIL
(PTY) LTD
Appellant
and
COOGAL
FINANCE (PTY) LTD (IN LIQUIDATION)
First
Respondent
KAREN
FONTEIN N.O.
Second
Respondent
CORAM:
MBHELE
DJP
et
REINDERS
J
et
LOUBSER
J
HEARD
ON:
2
0 MARCH 2023
DELIVERED
ON:
14
JULY 2023
JUDGMENT
BY:
REINDERS
J
[1]
On 26 August 2021 a single judge of this Division ordered the
appellant (Sumeil (Pty)
Ltd – “Sumeil”) to pay an
amount of R 944 000-00 (nine hundred and fourty-four thousand
rand) together with
interest
a tempore morae
to the respondent
(Coogal Finance (Pty) Ltd (in liquidation) – “Coogal”).
This order was granted pursuant to
the respondent herein (being a
company in liquidation), amongst others, having applied for the
liquidation of the appellant’s
estate and in the alternative
judgment in money for the aforesaid amount. The application by the
respondent for liquidation of
the appellant’s estate was
refused, but the monetary judgment prayed for, was granted. Reference
to the parties will be as
appellant and respondent, or Sumeil and
Coogal interchangeably.
[2]
The appellant sought leave to appeal against the monetary judgment
but such leave
was declined. Leave to this court was granted by the
Supreme Court of Appeal.
[3]
The appellant submitted that the trial court erred in finding that it
was indebted
to the respondent in the amount of R 944 000-00
together with interest at the deemed date of Coogal’s
liquidation (“the
deemed date”), that there was no
evidence that payments made by a third party, namely the Maritz Nel
Family Trust (“the
trust”) to Absa Bank was made on
behalf of the appellant to discharge its indebtedness to the
respondent and that the appellant’s
alleged indebtedness was
not disputed on
bona
fide
and reasonable grounds. It was suggested that the trial court failed
to properly apply the principles enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1]
and
failed to adjudicate the matter on the aforesaid basis or put
differently, that the court a quo should have adjudicated the
matter
on the version set out by the appellant in its answering affidavit
together with such allegations in the founding affidavit
which were
not disputed. It was submitted that the trial court should have found
as proven general ledger, the customer ledger,
the master rental
agreement transactions and the supplier ledger (attached to the
papers) as averred by the appellant in its opposing
affidavit and
that on the deemed date, the respondent in fact owed the appellant an
amount of R 1 227 906.83.
[4]
The following paragraphs from the judgment by the trial court set out
the backdrop
to the subsequent finding for the monetary judgment
appealed against (emphasis added):
“
[6]
From the background sketched by the applicant and the respondent in
the Founding and Answering
Affidavits respectively, it emerges that
over the years,
Coogal purchased vehicles which were financed by
Absa Bank (Absa) in terms of instalment sale agreements
, and
leased them…
[7]
According to the respondent, in approximately 2012, Coogal concluded
lease-to-buy
agreements with a transport contractor (DP Botes
Vervoer) in respect of all of its vehicles.
In terms of such an
agreement the hirer has the option to acquire ownership of the hired
vehicle at no cost, when the master rental
agreement has run its
course.
This, in effect, meant that Coogal was unable to service
the needs of its short-term clients,
which led it to purchase four
Volvo trucks
, ostensibly for the latter purpose.
Sumeil, being
in the transport business, contracted with Coogal for transport
services, and leased the four trucks from Coogal,
in respect of which
monthly payments were made by Sumeil to Coogal. Subsequently, in
March 2016, Sumeil concluded a master rental
agreement with Coogal in
respect of each truck. These agreements were due to mature on 28
February 2019. Coogal was provisionally
liquidated on 7 March 2019
and the order was made final on 11 April 2019. The application for
the provisional liquidation of Coogal
was filed in court on 4
February 2019, which was, therefore, the deemed date of liquidation
.”
The trial court
considered the monetary claim and found at paragraph [28]:
“
I deal now with
the alternative claim in the Notice of Motion for the payment by
Sumeil of the amount of R944 000.00, made
up of the amounts I
have set out in para 5 of this judgment. The amount of R185 000.00
has been admitted by Sumeil as owing
by it to Coogal. The four
balloon payments of R189 750.00 in respect of each Volvo truck
was owing to Coogal at the date of
liquidation, which has not been
disputed by Sumeil. As I indicated, the payment of these amounts was
made directly to Absa, instead
of to Coogal in terms of the master
rental agreement, by the Family Trust who is the sole shareholder of
Coogal, and not by Sumeil.
Although the latter claims that such
payment was made on its behalf, there is no supporting evidence to
this effect. These payments
were made some two weeks after the date
of liquidation, so it does not fall to be taken into account. In my
view, the payments
by the Family Trust did not extinguish Sumeil’s
indebtedness to Coogal. It may well be that the Family Trust’s
recourse
is to recover the money from Absa.”
[5]
That the deemed date of Coogal’s liquidation was 4 February
2019, is common
cause. So was the master rental agreement concluded
between Sumeil and Coogal and the terms recorded therein (as attached
to the
papers). In respect hereof Sumeil would pay monthly
instalments for a fixed period, with a final payment of R 165 000
(excluding
VAT) for each of the four trucks being due and payable on
28 February 2019 (the “final balloon payment”). On
appellant’s own version the trust, as its only shareholder, was
utilised to make four payments to Absa on 18 February 2019
in respect
of the loan agreements concluded between Absa and Coogal for
financing the four trucks. The proofs of payments attached
evidenced
that these payments were made some two weeks after the deemed date.
[6]
I find it apposite to deal with the trite principles applicable in
respect of the
matter at hand. A
concursus
creditorium
is
established upon the court granting of an order/provisional order of
liquidation, and a debtor cannot burden the estate any further.
[2]
No transactions, apart from those legally sustainable, which would
lead thereto that the estate assets are diminished or
the rights of
other creditors are prejudiced, may hereafter be effected.
[3]
Any disposition not sanctioned by a court after the deemed date, is
void.
[4]
Unless mutuality of
respective claims existed at the time of liquidation, no set-off can
take place.
[5]
The required
mutuality is the existence of reciprocal debts which had to be
liquidated and payable before the establishment of
the
concursus
creditorium
[6]
.
[7]
Appearing for the appellant, Mr Zietsman SC argued that the trial
court erred in finding
that Sumeil did not dispute its indebtedness
to Coogal in respect of the four balloon payments of R 189 750.00
as per the
terms of the master rental agreement. According to him, as
averred in Sumeil’s answering affidavit and the annexed
financial
statements, on a calculation of the reflected amounts owed
to Sumeil by Coogal, and
vice versa
, Coogal was in fact
indebted to Sumeil in the amount of R 1 227 906.83 at the
deemed date. It therefore is of no significance,
so his argument
went, whether payments by the trust to Absa were made after the
deemed date as Sumeil was not indebted to Coogal
in the amount of R
944 000.00 or on the latter date.
[8]
Mr Kruger SC on behalf of Googal, submitted the trial court did not
err in its finding
that Sumeil could not dispute its indebtedness to
Coogal on
bona fide
grounds as no documentary evidence was
placed before it to prove that payments were made on behalf of
Sumeil. Moreover, the master
rental agreement contained no clause
requiring Sumeil to repay the bank in any way whatsoever. He argued
that there was simply
no evidence before the court a quo indicating
any means of transferring the responsibility for payments in terms of
the various
agreements (including set-off or transfer) or that of a
cession taking place before the deemed date. Even should the
aforementioned
have been agreed upon, so the submission went, it
would have been unlawful as same would have the effect of preferring
one creditor
over the others.
[9]
On appeal before us it was not submitted that the trial court
misdirected itself to the
facts. It was rather submitted that the
trial court came to the wrong conclusion and as mentioned, did not
properly apply the principles
in
Plascon-
Evans
.
In
Pillay
v Krishna
[7]
it was held that the onus is on the party who avers payment and, if
he fails to satisfy the court that there is a sufficiently
strong
balance of probabilities in his favour, judgment will be given to the
claimant.
[10]
The court a quo had due regard to the Sumeil’s version and
applied the
Plascon-Evans
principle. It however found
that the appellant placed insufficient evidence before it to prove
that the trust paid the amount in
respect of these particular debts
which it found existed at the deemed date of liquidation. I am not
convinced by any means that
the court a quo erred in its findings. On
the contrary, I am satisfied with the conclusions reached by the
court a
quo. In my view Coogal succeeded in showing that
the appellant owed it the judgment amounts at the deemed date. A duty
was therefore
cast upon appellant to adduce cogent and sufficient
evidence in rebuttal.
[11]
A final, and in my view insurmountable, obstacle to the appellant’s
case is that the payments
upon which it relies made by the trust to
Absa, were made after the deemed date. There can be no dispute that
such payments were
void
ab initio
(and was most certainly not
declared to be valid in the exercise of a court’s discretion)
as was held in
Pride Milling
supra. The appellant’s
indebtedness to the respondent was in my view not extinguished.
[12]
For the above reasons I am satisfied that there is no merit in the
appeal and that the appeal
ought to fail.
[13]
Apart from the monetary judgment against Sumeil, the court a quo
ordered Sumeil to make payment
of interest on the ordered amount
a
tempore morae
and ordered it to pay thirty percent of the costs
of the application. In granting leave to appeal against these orders,
the Supreme
Court of Appeal set aside the cost order of the court a
quo in dismissing the application for leave to appeal and ordered the
costs
of the application for leave to appeal both to the Supreme
Court and court a quo, to be costs in the appeal. There is no reason
why cost should not follow the event.
[14]
In the result I make the following order:
The
appeal is dismissed with costs, such costs to include the costs of
the applications for leave to appeal both to the supreme
Court of
Appeal and to the court a quo.
C. REINDERS J
I concur.
N.M. MBHELE DJP
I concur.
P.J. LOUBSER J
On
behalf of the appellant:
Adv
PJJ Zietsman SC
Instructed
by:
MULLER
GONSIOR INC
BLOEMFONTEIN
On
behalf of the respondents:
Adv
TP Kruger SC
Instructed
by:
JACO
ROOS ATTORNEYS INC
c/o
NOORDMANS INC
BLOEMFONTEIN
[1]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD).
[2]
Fairleigh
NO Whitehead and Another
2001(2)
SA 1197 (SCA) (29 September 2000).
[3]
Ward
v Barrett NO and Another [
1962]
4 All SA 557 (N).
[4]
See
Pride
Milling Company (Ltd) v Bekker NO and Another
[2021]4
All SA 696 (SCA)
for a comprehensive discussion in respect of void dispositions.
[5]
Thorne
and Another NNO v The Government
1973
(4) SA 42 (T).
[6]
Richter
NO v Riverside Estates (Pty) Ltd
1946
(OPD) 223-224
.
[7]
1946 (AD) 946 at 953.