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[2023] ZAFSHC 309
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Remitto (Pty) Ltd v Bresler Boerdery (Pty) Ltd and Another - Leave to Appeal (2412/2023) [2023] ZAFSHC 309 (3 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE HIGH COURT OF
SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case No: 2412/2023
REPORTABLE: YES/NO
In
the matter between:
REMITTO
(PTY) LTD
Applicant
[1]
(Registration
number: 2005[…])
And
BRESLER
BOERDERY (PTY) LTD
First
Respondent
[2]
(Registration
number: 2021[…])
THE
MASTER OF THE HIGH COURT
Second
Respondent
Coram:
Opperman, J
Heard:
28 July 2023
Delivered:
3 August 2023.
This judgment was
handed down electronically by circulation to the parties’ legal
representatives
via
email and release to SAFLII on 3 August
2023. The date and time of hand-down is deemed to be 15h00 on 3
August 2023
Judgment:
Opperman, J
Summary:
Application for leave to
appeal
JUDGMENT
[1]
This is an application for leave to
appeal a judgment and an order made on 24 May 2023 following an
urgent application on 19 May
2023. This is the order:
[25] ORDER
1.
The court is satisfied that the abridgement of times and the
deviation from the Uniform Rules
are justified by the circumstances
of the case; and if the matter is not heard immediately, that the
applicant will not be afforded
substantial and effective redress at a
hearing in due course. Condonation is thus granted to the applicant
to have the matter enrolled
in terms of Rule 6(12) of the Uniform
Rules of this court.
2.
The relief sought in the notice of motion is granted and as per the
alternative prayer to prayer
2:
2.1
It is ordered that the first respondent make payment to the applicant
in the amount of R1 300 000.00
plus interest calculated on the said
amount at 10,5% interest per annum
a tempore morae
and
immediately on the service of this order on the first respondent.
2.2
The first respondent to pay the applicant’s costs.
[2]
The atmosphere of this case cautioned
and directed this court to the words of the Constitutional Court in
Shinga v The State and another (Society
of Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae); S
v O'Connell and others
2007 (2) SACR 28
(CC) that defined the judicial character of the task conferred upon a
presiding officer in determining whether to grant leave to
appeal.
It should be approached on the footing of intellectual humility
and integrity, neither over-zealously endorsing the
ineluctable
correctness of the decision that has been reached, nor over-anxiously
referring decisions that are indubitably correct
to an Appellate
Court.
[3]
The Supreme Court of Appeal in
Ramakatsa and others v African National
Congress and another
[2021] JOL 49993
(SCA) in March 2021 ruled that:
[10] …
If a reasonable prospect of success is established, leave to appeal
should be granted. Similarly,
if there are some other compelling
reasons why the appeal should be heard, leave to appeal should be
granted. The test of reasonable
prospects of success postulates a
dispassionate decision based on the facts and the law that a court of
appeal could reasonably
arrive at a conclusion different to that of
the trial court. In other words, the appellants in this matter need
to convince this
court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but
there
must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that there are prospects of success must
be
shown to exist.
[4]
The
crisp facts of the case are that Bresler Boerdery erroneously paid
monies into the account of the then provisionally liquidated
bank
account of Remitto. This was proven beyond any doubt by the founding
affidavit
[3]
of Mr Bresler as
supported by his wife in her confirmatory affidavit. It was accepted
by Mr Smith, one of the liquidators, in his
reply to the state of
affairs under oath on pages 52 to 54 of the Bundle adduced in support
of the application
a
quo
:
9.6.1 Upon
being informed by the applicant of the purported erroneous payment
into the liquidated estate, I requested
the applicant to provide the
facts and circumstances relevant thereto in order to take
instructions and obtain the necessary permission
from the creditors
of the liquidated estate;
9.6.2
Upon
being provided with the applicant’s version of events and
documentation relevant thereto however, it would appear as
if the
sole director of the liquidated estate has been conducting the
business, and servicing the customers of, the liquidated
estate
through another juristic entity namely Remitto Grow Smarter (Pty)
Ltd, which is of course impermissible.
9.6.2.1
Consequently, there is a reasonable apprehension that the business
of the liquidated estate has been unlawfully hi-jacked with
commensurate
effect that an enquiry to determine the true owner of
the funds is both necessary and unavoidable. The business to
which
I which to refer is
inter alia
that of the
sale and distribution of herbicides, which was previously conducted
by the liquidated estate and which now appears to
be conducted by an
entity known and (sic) described Remitto Grow Smarter (Pty) Ltd;
9.6.2.2
In the current circumstances, Maredi and I, as the duly appointed
provisional liquidators of the liquidated estate, are statutorily
obliged to investigate the true ownership of the funds paid to
the
liquidated estate by the applicant in order to protect the interests
of the general body of creditors which interests are substantial;
and
9.6.2.3
This has necessitated the simultaneous prosecution of an urgent
application,
in terms in which we shall apply for the extension of
our powers and the authorisation of an urgent commission of enquiry.
That
application will, together with the service and filing of this
affidavit, be issued and enrolled to be heard immediately prior to
the hearing of this application. The commission of enquiry will
furnish us with an extremely effective platform to ascertain the
truth and for which exercise a period of approximately 3 months is
required. (Accentuation added)
[5]
Bresler Boerdery was forced to court
when Remitto Grow Smarter (Pty) Ltd (“Remitto Grow Smarter”),
a supplier of herbicide,
threatened them with repossession of the
herbicide on 11 May 2023. They had to start planting their crops
within the then impending
weeks and ran the severe risk of losing the
income from their harvest and the R1 300 000.00. They were also
hesitant to use the
herbicide to prepare for the planting in the
midst of the ongoing litigation and then to run the risk of liability
towards Remitto
Grow Smarter or any other parties; and further
expensive litigation.
[6]
The reason why they did not refer the
matter to the court immediately was because they awaited the response
of the liquidators to
their plight. An email was already sent to Mr
Smith, one of the liquidators, on 13 April 2023 alerting him to the
situation. The
matter clearly became urgent abruptly. Remitto, with
the same information also only brought their separate application
before court
on 19 May 2023 with a claim of urgency that was granted.
They could have done so earlier and so expedited their
investigations.
[7]
It must, again, be reiterated and
emphasised that Bresler Boerdery, whilst doing business with Remitto
Grow Smarter (Pty) Ltd, paid
its monies due to Remitto Grow Smarter
into a wrong bank account. The dispute between Remitto and Remitto
Grow Smarter may not
be adjudicated in this case; it is not the cause
of the action. The injustice that Remitto under liquidation wants to
cause to
Bresler Boerdery for a
bona
fide
mistake is unacceptable.
The law in relation to the payment of monies into a mistaken bank
account is applicable. This is the cause
that led to the litigation
and the legal principles that had to be applied was and is clear.
[8]
The applicant in the leave to appeal
could and may not expect from the court to adjudicate on a dispute
that exists between the
director of the company, Remitto (Pty) Ltd
under then, provisional liquidation, and the liquidators in this
case. At the time of
the hearing of this application the allegations
of untoward conduct by Remitto were just that and nothing more.
[9]
Due regard was given to the Plascon
Evans - dictum and the allegations of the first respondent in their
answering affidavit. The
liquidators did not doubt the
bona
fides
of Bresler Boerdery as is clear
from the above. In their own words: “
9.6.2
Upon being provided with the applicant’s version of events and
documentation relevant thereto however, it would appear
as if the
sole director of the liquidated estate has been conducting the
business, and servicing the customers of the liquidated
estate
through another juristic entity namely Remitto Grow Smarter (Pty)
Ltd, which is of course impermissible
.”
This underscores the version of Bresler Boerdery.
[10]
The commitment of the liquidators
towards the general body of creditors is laudable. But, Bresler
Boerdery would have been forced
into severe losses if they had to
wait for three months for the investigations to be finalised and then
to start planting their
crops; this due to a dispute that was and is
not theirs. Parallel to this case and in the same sitting in an
ex
parte
urgent application by the
liquidators in case 2477/2023 it was ordered by this court that:
5.
A commission of enquiry into the business, trade dealings and affairs
of the liquidated estate
be held in terms of the provisions of
section 417 and 418 of the Act.
6.
His Lordship the Honourable Justice SPB Hancke is appointed as
commissioner in terms of section
417 and 418 of the Act and that he
be authorised to determine the process, times and places of the
holding of the enquiry and the
manner in which it shall be conducted,
as he in his sole discretion deems fit.
[11]
The alleged irregular conduct of the
director of the company is to be resolved between the liquidators and
the director of Remitto,
and that is in litigation for another day on
another cause of action with different parties cited; and different
principles in
law applicable. The above order aided the liquidators
to a legal, appropriate and fair solution.
[12]
If Standard Bank does not want to
comply with the instruction of court to the liquidators
in
casu
it remains, again, a case for
another day and is irrelevant here and now. Standard Bank was not a
party to the litigation; there
exists no order against them. Bresler
Boerdery will have to take responsibility for this alleged neglect to
cite Standard Bank
and they will have to accept the consequences or
initiate further litigation. If Standard Bank, as the alleged owner
of the money,
refuses the instruction of their account holder,
Remitto (Pty) Ltd under liquidation, the matter ends there. Care must
be taken
that the money is not misappropriated.
[13]
Counsel for Remitto mentioned that the
liquidators might be prosecuted for contempt of court. There is no
risk that the liquidators
may be in contempt of the court order here
if Standard Bank refuses to repay the monies to Bresler Boerdery. In
particular, the
applicant in an order for contempt of court must
prove the requisites of contempt; the order, service or notice,
non-compliance
and
wilfulness and
mala
fides
beyond reasonable doubt
.
[14]
Of concern is that the applicant in
this application for leave to appeal do not want to grasp the issue
in dispute; that is the
erroneous payment of monies into the Standard
Bank account and not the First National Bank account. A version that
Mr. Smith accepted.
The fact that they as an afterthought, disputed
the
bona fides
of Bresler Boerdery; does not change the issue to be adjudicated. The
dispute was argued during the hearing and stated in the papers
that
supported the application. They now claim in their Notice of
Application for Leave to Appeal that:
5.1
The authorities on which the findings of the Court were premised are
all distinguishable from the facts of
the present matter. In this
regard on the applicant’s own version under oath (
FA8
to
the founding affidavit) it contracted with, and intended to pay, the
first respondent.
5.2
Furthermore, none of the authorities nor any of the legal principles
on which reliance was placed therein,
were raised during the hearing
of the matter. The respective parties were consequently not afforded
an opportunity to make submissions
in respect of the applicability
thereof.
5.3 As
result of this, the first respondent was not afforded a fair
opportunity to be heard which commensurately
prejudiced the first
respondent and infringed upon its right to a fair trial guaranteed by
section 34 of the Constitution.
[15]
The interpretation of annexure FA8
presented in the Notice of Application for Leave to Appeal is
completely out of context and wrong.
This is what is stated in full
in FA8 and under oath with supporting documents such as the invoice
issued by Remitto Grow Smarter
and commissioned on 18 April 2023:
1.
Op 27 Februarie 2023 het
ek ‘n bestelling geplaas by Remitto Grow Smarter van Kroonstad.
Ek het ‘n faktuur ontvang met
verwysing D52120 vir die
bestelling gemaak met die bedrag betaalbaar as R1 300.000.00. Die
genoemde faktuur word hierby aangeheg
en gemerk Aanhangsel “GD1”.
2.
Op 28 Maart 2023 is die
betaling vir die bedrag van R1 300.000.00 elektronies gemaak in die
rekening besonderhede wat op ons rekenaar
gestoor is vir Remitto met
bankbesonderhede te Standard bank (sic). Bewys van betaling word
hierby aangeheg as Aanhangsel “GD2”.
Die bankbesonderhede
gebruik ek al ‘n geruime tyd vir betaling aan Remitto en het ek
nie opgemerk dat die faktuur besonderhede
verander is nie.
Die betaling is
verkeerdelik gemaak in die ou rekening van Remitto waarin wel
betalings gemaak kan word.
Ek het nie kennis gedra
van die Likwidasie van Remitto en versoek hiermee die Likwidateurs om
my behulpsaam te wees en die bedrag
alreeds inbetaal terug te betaal
in my rekening.
[4]
[16]
“
FA3” filed in the Bundle
at page 27 is proof that Bresler Boerdery did business with Remitto
Grow Smarter. It is the invoice
issued on 27 February 2023.
[17]
From the arguments in court, it was
clear that counsel for Remitto understood the issue and that it
pertains to the erroneous payment
of monies into the account of
Remitto. There was not any dispute on the fact that Standard Bank is
the owner of the monies. The
fact that the law and judgments of the
Supreme Court of Appeal were not known to the first respondent is no
fault of the court.
They had more than ample access to court and to
state their case; ignorance of the law is not an excuse. It is in
fact worrisome
that they did not even deem it necessary to prepare on
the issue. The above shows that the first respondent was correctly
ordered
to carry the costs of the application. Costs must also follow
the cause and there was not any justification to deviate from the
general rule.
[18]
On the law Remitto under provisional
liquidation ran the risk of misappropriating funds that were not
meant and intended for their
use. They were issued with a solution
and relief in law for the dilemma in the order in case 2477/2023
where they were also granted
access to the court in terms of section
34 of the Constitution of the Republic of South Africa, 1996.
[19]
Advocate
van Rensburg’s frustration was clearly justified when he
contended in his heads of argument
[5]
that the assertion that a fair opportunity was not afforded to the
first respondent
a
quo
regarding the legal principles referred to in the judgement, “is
absurd to say the least, …”.
[20]
I will unfortunately have to weight
this judgment down by quoting from the judgment
a
quo
to put the reality in perspective.
[1]
The real truth of this case is that an
innocent bystander was unknowingly drawn into possible illegal
conduct committed by the director
of a company under provisional
liquidation.
[2]
The
lis
on the untoward conduct lies between the director of the company
under provisional liquidation and the provisionally appointed
liquidators.
[6]
[3]
It is prudent to introduce the parties
involved at this stage of the judgment:
1.
Remitto (Pty) Ltd (Remitto), the first
respondent, is a company under provisional liquidation. The first
respondent was apparently
registered as such in 2005. On the 3
rd
of February 2023 the business rescue proceedings in respect of
Remitto was converted into liquidation proceedings and the company
was placed under provisional liquidation in the hands of the Master
of the High Court: Free State.
2.
The Master is the second respondent in this
case. They did not oppose the application.
3.
Parallel hereto did the sole director of
Remitto, one Alexander, register a company Remitto Grow Smarter (Pty)
Ltd, registration
number 2015[…] (Remitto Grow Smarter), that
conduct the same business as Remitto with, apparently, the same
clients.
4.
On 23 February 2023 the Master went forth
and appointed Mr ER Smith and Mr CT Maredi as provisional
liquidators.
5.
Standard Bank is the applicant in the
liquidation under case no.: 3538/2022 and also the bank that manages
the account of Remitto
and wherein the erroneous payment was made.
6.
Mr Bresler is the single shareholder and a
director of the applicant company, Bresler Boerdery (Pty) Ltd, that
has its registration
number as 2021[…].
[4]
The calamity of the case has its origin on
the farm Kroonland where Mr Bresler started to prepare for the 2023
planting season.
He ordered herbicide from Remitto Grow Smarter.
[5]
On 27 February 2023 he received a tax
invoice from Remitto Grow Smarter to the amount of R1 300 000.00
under document D52120.
[6]
The banking details on the invoice is for a
First National Bank account wherein the payment was due.
[7]
On 28 March 2023 his wife, that manages the
payments for the applicant, made a payment of the amount due to
Remitto Grow Smarter
in the amount of R1 300 000.00 into the Standard
Bank account of the first respondent, Remitto.
[8]
It is common cause that the error was
bona
fide.
The applicant did business with
Remitto in the past and Mrs Bresler did not take cognisance of the
details of the bank account of
Remitto Grow Smarter.
[9]
It is common cause that the applicant was
not a debtor of the first respondent during February – March
2023 and did not owe
any money to the first respondent, Remitto.
[10]
In the meanwhile, Remitto Grow Smarter
delivered the herbicide to the applicant on the farm Vierdehoek in
the beginning of March
2023. The amount of R1 300 000.00 was paid for
the product on 28 March 2023 into the account of Remitto.
[11]
Mr Bresler received a call from Remitto
Grow Smarter in April 2023 and he realised that the deposit of the
monies was made into
the wrong account. He was also later issued with
a credit note from Remitto Grow Smarter and threatened with the
repossession of
the herbicide delivered to the farm Vierdehoek.
[12]
Crucial is the fact that the planting
season must commence within three weeks from the date of delivery of
this application on 15
May 2023. Farmers nationwide are preparing
fields for planting after having gathered the 2022-2023 harvest. The
herbicide ordered
by the applicant, and now in Mr Bresler’s
possession, is all but unobtainable currently due to the demand
therefor. The price
of the herbicide increased extensively and is
almost 20% higher than what the applicant paid for it during March
2023. As result
of the small profit margins in grain farming due to
various factors such as inflation, fuel costs, equipment costs and
other factors;
the applicant’s farming operations will be dealt
a devastating blow if it was forced to plant its fields without the
necessary
herbicide being used to prepare the fields. It is the case
of Mr Bresler, that the applicant’s cashflow and business will
not survive the devastating blow of losing the R1 300 000.00 and not
being able to plant the next season’s harvest.
[13]
Central to the application is also the fact
that Mr Bresler at all times presented to this court that he wants to
comply with the
law and at all times do what was honourable and
legal; hence the application.
[14]
After the information that the monies were
erroneously paid into the Standard Bank account came to his notice,
Mr Bresler immediately
contacted his attorney and they contacted the
provisional liquidator, Mr Smith on 17 April 2023. Mr Smith
investigated the situation
and informed that they will give feedback
to the applicant “by end of business on 12 May 2023”.
This was on 8 May 2023.
[15]
On 11 May 2023 the situation turned dire
when Remitto Grow Smarter issued a credit note and threatened with
repossession of the
herbicide.
[16]
The applicant launched an urgent
application on 15 May 2023 for the monies to be returned to their
account and for the provisional
liquidators to authorise the payment.
[17]
The provisional liquidators maintained the
refusal to release of the R1 300 000.00 to the applicant on the
grounds that they are
duty bound to investigate the conduct of
Alexander. They opposed the application on urgency and merits.
[18]
The
Master is apparently not legally authorised to intervene or authorise
any payments of monies that lie in the hands of the liquidators.
[7]
[19]
Lateral hereto the liquidators applied, on
an urgent and
ex parte
basis, for an extension of their authority to investigate the conduct
of the first respondent and its director. The cases were
set down for
19 May 2023.
[20]
Prayer 7 to the effect that the funds
deposited with the liquidated estate in the amount of R1 300 000.00,
to which Bresler Boerdery
(Pty) Ltd has laid claim by way of the
application launched under civil case cover number 2412/2023, to be
kept in trust in an
interest-bearing account up and until 24 August
2023, by which date the liquidators must inform Bresler Boerdery
(Pty) Ltd whether
or not they accept or reject the claim; was denied.
The concession was made by advocate Tsangarakis that it would not be
appropriate
to grant prayer 7 due to the urgent application from
Bresler Boerdery that had to be adjudicated first and foremost.
[21]
The conundrum on the facts is that Bresler
Boerdery will suffer a severe injustice should the urgent application
for the release
of the money from the Standard Bank account not be
granted. An innocent bystander will definitely be punished for the
suspected
illegal conduct of the sole director of the first
respondent. A dispute in which Mr Bresler has not an inkling of
interest or fault.
[22]
The facts have shown beyond any doubt that
the application is urgent and that the applicant did all it could to
expedite the events.
The delay was with the provisional liquidators
that took some time to reply to the request of the applicant. The
prejudice to the
applicant will be severe if the matter is not
adjudicated immediately and this application is the only remedy.
[23]
This brings me to the law that regulates the facts of the case.
1.
The cases of
FirstRand Bank Limited v The Spar Group Limited
(1334/2019)
[2021] ZASCA 20
(18 March 2021) (the Spar Group - case)
and Nissan South Africa (Pty) Ltd v Marnitz No and Others (Stand 186
Aeroport (Pty) Ltd
Intervening)
2005 (1) SA 441
(SCA) (the Nissan
- case) dictates the law on the facts of this case.
2.
In the Nissan - case the court was required to decide whether a bank
can unilaterally reverse
a credit without the consent of the
recipient. In answering this question, the Supreme Court of Appeal
held that payment in these
scenarios is a bilateral act and requires
the meeting of two minds. In the circumstances where Nissan did not
intend transferring
R12.7 million into the recipient’s account,
there was no meeting of minds and consequently no valid transfer of
funds. On
the facts, the recipient’s conduct in using the funds
for its own purposes’ amounts to appropriation and fraud.
3.
Nissan South Africa (Pty) Ltd (Nissan) instructed its bank, FNB, to
make certain payments
to its creditors. One of the creditors that had
to be paid an amount of R12 767 468.22, was TSW Manufacturing.
However, due to
a clerical error, the wrong banking details were
furnished. This resulted in the payment being made into a third
party’s
account namely, Maple.
4.
At no point in time was any amount due to Maple by Nissan. Once Maple
realised that the money
was deposited to its account, it transferred
R12 700 000.00 from its Standard Bank account to its FNB receipts
account. Soon thereafter
Maple transferred the money to its payments
account. Here the funds were being utilising in conducting the
day-to-day business
of Maple.
5.
Twenty days later TSW made enquiries about the payment. Nissan now
became aware of the erroneous
payment and demanded that the funds be
returned. Maple indicated that they were prepared to comply with the
demand subject to it
retaining the interest earned thereon and a
lavish “administration fee” of 4% of the amount
concerned.
6.
Nissan obtained a court order to freeze Maple’s account. This,
according to the sole
member of Maple; Stanley, placed considerable
financial strain on Maple. It caused the voluntarily liquidation of
Maple.
7.
Similar to the situation in casu, Stanley and Maple’s
liquidators contended that this
amount formed part of Maple’s
insolvent estate and is therefore subject to the
concursus
creditorum
.
8.
Nissan therefore applied to court for an order declaring that the
money and any interest
that accrued thereon did not form part of the
insolvent estate of Maple Freight CC (in liquidation) and directing
the first and
second respondents to pay the amount to the appellant,
alternatively, FNB.
9.
The Supreme Court of Appeal held that a bank which had
unconditionally credited its customer’s
account with an amount
received was not liable to pay the amount to the customer on demand
where the customer came by such money
by way of fraud or theft. If
stolen money were paid into a bank account to the credit of the
thief, the thief had as little entitlement
to the credit as he had to
the money itself.
10.
It further held that payment was a bilateral juristic act which
required there to be a meeting of two
minds. There was no meeting of
the minds in this scenario, therefore Maple had not become entitled
to the funds erroneously credited
to its account.
11.
Accordingly, the Supreme Court of Appeal upheld the appeal and
held that the order of the Court
a quo
had to be
replaced with an order declaring that the funds did not form part of
the insolvent estate of Maple (in liquidation) and
directing the
release of the funds to Nissan.
12.
The Supreme Court of Appeal in 2021 delivered judgment in the matter
of
FirstRand Bank Limited v The Spar Group Limited
(1334/2019)
[2021] ZASCA 20
;
[2021] 2 All SA 680
(SCA);
2021 (5) SA 511
(SCA) (18
March 2021) and it was ruled that:
i.
A customer with no entitlement to monies deposited into its account
and who knows that
it enjoys no such entitlement, may not pay out
monies against the credit to the account and if the customer does so,
it amounts
to theft;
ii.
a third party whose monies are deposited into the customer’s
account enjoys
a claim against the customer’s bank for the
amount so credited if the bank is aware that the monies belong to the
third party;
and
iii.
a bank that knows that its customer enjoys no entitlement to funds
deposited into the customer’s
account, but still allows the
customer to pay out those funds,
renders itself a joint wrongdoer.
In these circumstances, the bank owes the third party whose funds
were wrongly paid into the customer’s
account, a legal duty.
Such third party can claim any loss suffered as a result of the bank
permitting the withdrawal of the funds
wrongly paid into the
customer’s account.
13.
The question that now arises is when can a credit transfer be
reversed from an account?
14.
The general principle regarding the reversal of credit transfers is
that a bank may not reverse a credit
from a customer’s account
without that customer’s authority.
15.
In
Nedbank Limited v Pestana
(142/08)
[2008] ZASCA 140
;
2009
(2) SA 189
(SCA) ;
(2009) 71 SATC 97
;
[2009] 2 All SA 58
(SCA) (27
November 2008), the Supreme Court of Appeal held that the bank
intended to make an unconditional payment on behalf of
its customer
and intended to receive payment unconditionally on behalf of the
recipient. In these circumstances, Nedbank was not
entitled to
reverse the transfer from the recipient’s account despite
receiving a section 99 order from the South African
Revenue Services
earlier on the day of payment. The Court however commented, albeit
obiter, that payments may be validly reversed
when a credit into an
account is treated as provisional and is subjected to a hold in terms
of standard banking practice, the recipient
received the credit by
way of fraud or theft, or where an account was erroneously credited.
16.
In
Ixocure (Pty) Ltd v Firstrand Bank Ltd
(19619/2014)
[2017]
ZAWCHC 139
(30 November 2017) the Court took account of the fact that
the bank’s witness gave evidence to the effect that the credit
entry into the recipient’s account was provisional and the
entry was not finalised before the hold was placed on the recipient’s
account because the transfer into its account was reported as
fraudulent. The court ultimately held that the bank was entitled
to
reverse the credit transfer.
17.
The above indicates that where a credit emanates from a valid and
correct instruction; the recipient’s consent is required
before
the reversal of the transfer. Where the transfer is invalid or a
bona
fide
error, it might be legal to argue that the reversal
of that credit can be effected without the recipient’s consent
.
18.
The circumstances of each matter will dictate whether the credit can
be reversed and whether such reversal
requires the recipient’s
consent.
[24] In
the instance:
1.
The monies that were transferred by bona fide error into the Standard
Bank account was the
property of Bresler Boerdery (Pty) Ltd before it
landed into the account.
2.
It is further clear that the payment had to be a bilateral juristic
act which required “a
meeting of two minds”. There did
not occur a meeting of the minds in this scenario. For this reason,
Remitto as the provisionally
liquidated estate, did not become
entitled in any way to the funds erroneously credited to its account.
3.
The liquidators may not lay claim to it; not even to finalise their
investigations and in
the interim. This is specifically pertinent in
the light of the severe prejudice that the Bresler Boerdery will
suffer.
4.
The money may not be captured to ease the duties and investigations
of the liquidators. They
have the right and remedy to take action
against Remitto Grow Smarter and to do so on an urgent basis at a
suitable time in future.
They may not use an innocent bystander to
promote their cause. It is just not fair and equitable, no matter the
noble intentions
to protect the interest of the liquidated company’s
creditors. The right(s) of the one does not exceed the other. Bresler
Boerdery may not be held accountable for the suspected and not yet
proven illegal conduct of Alexander from Remitto Grow Smarter.
5.
The money is the
de facto
property of Bresler Boerdery to be
appropriated as they see fit. In the instance the bank has
de iure
control awaiting the authorization of the liquidators to deal with it
in whatever way they direct; this to play it safe.
6.
The above said; the caveat is that the judgments of the Supreme Court
of Appeal indicate
that where a credit emanates from a valid and
correct instruction; the recipient’s consent is required before
the reversal
of the transfer. Where the transfer is invalid or a
bona
fide
error, it might be legal to argue that the reversal of that
credit can be effected by the bank without the recipient’s
consent.
7.
The first respondent as represented by the provisional liquidators
will have no option but
to authorise the reversal of the monies to
the account of the applicant.
8.
The liquidators were not cited in the litigation but Advocate
Tsangarakis gracefully pointed
out that the Supreme Court of Appeal
has ruled that an order against the estate in liquidation is an order
against the liquidators.
This in accordance with
Gainsford N.O.
and Others v Tanzer Transport (Pty) Ltd, In Re; Gainsford N.O. and
Others v Tanzer Transport (Pty) Limited and Others
(076/2013)
[2014] ZASCA 32
;
2014 (3) SA 468
(SCA);
[2014] 3 All SA 21
(SCA) (28
March 2014).
9.
Standard Bank was not cited and is not a party to the litigation.
They are however an applicant
in the liquidation of Remitto.
10.
Advocate van Rensburg for the applicant conceded to an interest rate
of 10,5%.
[20]
The applicant did not convince this court on a
sound rational basis of any prospects of success on appeal. The
prospects of success
are almost non-existent. They will have to carry
the costs for the application.
[21]
ORDER
The application for leave
to appeal is dismissed with costs.
M OPPERMAN, J
APPEARANCES
On
behalf of the applicant
ADVOCATE
S TSANGARAKIS
ADVOCATE
J DONNELLY-BORNMAN
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of the respondent
ADVOCATE
G.S.J. JANSE VAN RENSBURG
Rosendorff
Reitz Barry Attorneys
BLOEMFONTEIN
[1]
“The liquidators” or “Remitto”. The company
was placed under final liquidation in the meanwhile. The
Master of
the High Court did not participate in the application.
[2]
“
Bresler
Boerdery”.
[3]
It is imperative for the reader of this judgment to read the
founding affidavit. I quote on the issue of interdict from page
20
to page 22 of the Bundle:
INTERDICT:
41.
I have been advised that, in order to obtain a final interdict,
there are certain requisites
the Applicant needs to proof on a
balance of probabilities:
A
clear right:
42.
I respectfully submit that the Applicant has a clear right to, and
repayment, of the amount
in question, R1 300 000.00.
43.
Such money was paid into an incorrect account, due to a bona fide
error, to purchase and
obtain herbicide, already delivered to the
Applicant, which the supplier now wants to repossess.
44.
At no stage was the Applicant a debtor, with money outstanding, to
the First Respondent,
there is no need to drag the Applicant into
liquidation proceedings.
An injury actually
committed or reasonably apprehended:
45.
The Applicant will suffer tremendous loss, if it cannot utilise
the herbicide currently in its possession, when such is repossessed
by the supplier thereof, due to non-payment
.
46.
The whole planting season, for the Applicant – being the
2023-2024 season - would not be economically viable without the
herbicide
.
47.
The Applicant
will not survive the financial loss, and
does not have the cashflow
to obtain herbicide from an
alternative supplier, while the First Respondent’s liquidators
bickers regarding the R1 300
000.00 to which the First Respondent
never had any claim.
The absence of
similar protection by any other remedy:
48.
I respectfully submit that the Applicant, through an affidavit by
myself, communications
to the provisionally appointed liquidators,
exhausted each and every remedy in trying to get repayment of R1 300
000.00.
49.
There is no other remedy available to the Applicant, other than
approaching this Honourable
Court for the relief sought.
50.
As stated, the Applicant cannot obtain easily obtain another supply
of herbicide, if by
chance herbicide is obtained - such would be at
a much higher price, the Applicant simply does not have the cashflow
to absorb
a double payment for herbicide, which is needed for a
successful planting season. (Accentuation added)
[4]
English
translation:
1.
On 27 February 2023 I
placed an order with Remitto Grow Faster from Kroonstad. I received
an invoice with reference D52120 for
the order I placed and with an
amount payable as R1 300.000.00. The invoice is attached herewith
and marked Annexure “GD1”.
2.
On 28 March 2023 I made
the payment to the amount of R1 300.000.00 electronically into the
account particulars of which were stored
on our computer for Remitto
with bank particulars at Standard bank (sic). Proof of the payment
is attached herewith as Annexure
“GD2”.
The bank particulars
were used by me for some time for payment of Remitto and did I not
notice that the particulars on the invoice
had changed.
The payment was made
erroneously into the old account of Remitto wherein payment could be
made.
I did not have knowledge
of the Liquidation of Remitto and request herewith the Liquidators
to assist me and to repay the amount
already paid into my account.
[5]
At
paragraph 22.1.
[6]
At
pages 52 to 54 of the Indexed Bundle, it was stated by the
liquidator, Mr Smith that:
“
9.6.1
Upon being informed by the applicant of the purported erroneous
payment into the liquidated estate, I requested
the applicant to
provide the facts and circumstances relevant thereto in order to
take instructions and obtain the necessary
permission from the
creditors of the liquidated estate;
9.6.2
Upon being provided with the applicant’s version of events and
documentation relevant thereto
however, it would appear as if the
sole director of the liquidated estate has been conducting the
business, and servicing the
customers of the liquidated estate
through another juristic entity namely Remitto Grow Smarter (Pty)
Ltd, which is of course
impermissible.
9.6.2.1
Consequently, there is a reasonable apprehension that the business
of the liquidated estate has been unlawfully
hi-jacked with
commensurate effect that an enquiry to determine the true owner of
the funds is both necessary and unavoidable.
The business to
which I which to refer is
inter alia
that of the sale and
distribution of herbicides, which was previously conducted by the
liquidated estate and which now appears
to be conducted by an entity
known and described Remitto Grow Smarter (Pty) Ltd;
9.6.2.2 In the
current circumstances, Maredi and I, as the duly appointed
provisional liquidators of the liquidated estate,
are statutorily
obliged to investigate the true ownership of the funds paid to the
liquidated estate by the applicant in order
to protect the interests
of the general body of creditors which interests are substantial;
and
9.6.2.3
This has necessitated the simultaneous prosecution of an urgent
application, in terms in which we shall apply for
the extension of
our powers and the authorisation of an urgent commission of enquiry.
That application will, together with the
service and filing of this
affidavit, be issued and enrolled to be heard immediately prior to
the hearing of this application.
The commission of enquiry will
furnish us with an extremely effective platform to ascertain the
truth and for which exercise
a period of approximately 3 months is
required.”
[7]
Section
361(1)
of the
Companies Act, 71 of 2008
reads: “In any
winding-up by the Court all the property of the company concerned
shall be deemed to be in the custody and
under the control of the
Master until a provisional liquidator has been appointed and has
assumed office.” This necessarily
implies that upon the
appointment of the provisional liquidator the latter has custody and
control of the company's property
(Delport and Vorster Henochsberg
on the Companies Act 71 of 2008 (LexisNexis, Durban 2021) vol 1 at
764 and Blackman above n
10 at 14-251).