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[2022] ZAFSHC 280
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Vincemus Investments (PT) Ltd t/a Kempston Finance v Nel (2280/2020) [2022] ZAFSHC 280 (14 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION BLOEMFONTEIN
Case
number: 2280/2020
In
the matter between:
VINCEMUS
INVESTMENTS (PT) LTD t/a
KEMPSTON
FINANCE
(Reg.
no.: 1969/004762/07)
Applicant
and
WILLEM
ANDRIES
MARITZ NEL
Respondent
CORAM:
VAN
ZYL, J
HEARD
ON:
14
JULY 2022
DELIVERED
ON:
14
OCTOBER 2022
[1]
The applicant approached court on 14 July 2022 on an urgent basis for
the following relief:
"1.
That condonation be granted for the applicant's non compliance with
the Uniform Rules of Court
relating to timeframes, service and forms;
that it be dispensed of and that this application be heard on an
basis in terms of the
provisions of Uniform Rule 6(12).
2.
That the execution of the writ of execution issued in respect of the
respondent's
interlocutory application under case number 2280/2020 be
stayed pending the finalisation of the main application under case
number
2280/2020."
3.
That the respondent to pay the costs of this application."
[2]
The application was opposed and the respondent filed an answering
affidavit,
in response to which the applicant filed a replying
affidavit.
Common
cause background:
[3]
The litigious history between the parties as set out in the founding
affidavit
filed in the present application, deposed to by the
applicant's attorney of record, is common cause.
[4]
The applicant launched an application for the sequestration of the
respondent's
estate on or about 3 July 2020 ("the main
application"). The claim of the applicant against the respondent
is based thereon
that the respondent bound himself as surety and
co-principal debtor on behalf of a certain Prinsloo Familie Trust
("the Trust")
in respect of a debt due to the applicant by
the Trust for goods sold and delivered in terms of eight instalment
sale agreements.
[5]
According to an allegation in the founding affidavit in the present
application
the total amount due, owing and payable to the applicant
on the aforesaid basis, is R45 271 146.77, plus interest and costs.
[6]
In the alternative to seeking the sequestration of the respondent's
estate
in the main application, the applicant is seeking judgment in
favour of the applicant against the respondent for payment of the
amounts set out in the notice of motion filed in the main
application, a copy of which is attached to the present application.
In the said notice of motion, the amounts are set out as follows:
"4.1
That judgment be granted in favour of the applicant against the
respondent for:
4.1.1
payment of the sum of R3 123 836.15;
4.1.2
payment of interest on the amount of R3 123 836.15 at the prime
lending rate minus 0,25% per annum calculated from 22 February
2019
to date of payment, both days inclusive;
4.1.3
payment of the sum of R2 132 850.77;
4.1.4
payment of interest on the amount of R2 132 850.77 at the prime
lending rate minus 0,25% per annum calculated from 22 February
2019
to date of payment, both days inclusive;
4.1.5
payment of the sum of R6 830 566.58;
4.1.6
payment of interest on the amount of R6 830 566.58 at the prime
lending rate minus 0,25% per annum calculated from 22 February
2019
to date of payment, both days inclusive;
4.1.7
payment of the sum-of R6 830 566.58;
4.1.8
payment of interest on the amount of R6 830 566.58 at the prime
lending rate minus 0,25% per annum calculated from 22 February
2019
to date of payment, both days inclusive;
4.1.9
payment of the sum of R5 319 184.76;
4.1.10
payment of interest
on the amount of R5 319 184.76 at the prime
lending rate minus 0,25% per annum calculated from 22 February 2019
to date of payment,
both days inclusive;
4.1.11
payment of the sum of
R6 655 572.01;
4.1.12
payment of interest
on the amount of R6 655 572.01 at the prime
lending rate minus 0,25% per annum calculated from 22 February 2019
to date of payment,
both days inclusive;
4.1.13
payment of the sum of
R6 722 999.44;
4.1.14
payment of interest
on the amount of R6 722 999.44 at the prime
lending rate minus 0,25% per annum calculated from 22 February 2019
to date of payment,
both days inclusive;
4.1.15
payment of the sum of
R6 655 570.48;
4.1.16
payment of interest
on the amount of R6 655 570.48 at the prime
lending rate minus 0,25% per annum calculated from 22 February 2019
to date of payment,
both days inclusive;"
[7]
The main application was opposed by the respondent. The respondent
filed
its answering affidavit, whereafter the applicant filed a
replying affidavit.
[8]
On 11 February 2021 the respondent launched an interlocutory
application
for the striking out of certain parts of the applicant's
replying affidavit filed in the main application, which application
was
heard on 17 September 2021. The interlocutory application was
successful and on 28 October 2021 it was ordered that the applicant
was to pay the costs of the interlocutory application.
[9]
On 10 March 2022 the main application served before Naidoo, J,
whereafter
judgment was reserved.
[10]
The respondent's bill of costs for purposes of the interlocutory
application was taxed on an opposed basis and on 29
June 2022 the
Taxing Master issued its allocator in terms whereof the amount of
R162 081.86 was taxed and allowed in favour of
the respondent.
[11]
On 1 July 2022 the respondent's attorney of record addressed a letter
to the applicant's
attorney of record in which payment of the amount
of R162 081.86 was demanded. It was further indicated that in the
absence of
payment before close of business on the said date, a writ
of execution was to be issued against the applicant.
[12]
On 4 July 2022 the applicant's attorney of record responded to the
aforesaid e-mail, a
copy of which is attached to the founding
affidavit as annexure "FAS". In paragraph 10.2 of the
founding affidavit filed
in the present application, the applicant's
attorney of record stated that in the response e mail he
informed the respondent's
attorney of record
"that
the applicant intends setting off the taxed and allowed amount owed
to the respondent against the claim amount alleged
to be due and
owing and payable by the respondent to the applicant in the main
application."
It was further
stated in the e-mail that the issuing of a warrant of execution
against the applicant in the circumstances would
be mala
fide.
In view thereof that the judgment in the main application was
pending, an undertaking was also given that should the applicant
not
be successful in its claim against the respondent in the main action,
payment of the allocated taxed amount would be made within
48 hours
after the handing down of the judgment.
[13]
It was further stated in the founding affidavit that it came to the
knowledge of the applicant's
attorney of record on 8 July 2022 that a
warrant of execution had in fact been issued and that it was
therefore accepted that it
would soon be executed.
[14]
In the founding affidavit the applicant's attorney of record also
referred to and attached
e-mail correspondence which he addressed to
the registrar of Naidoo, J in which he enquired with regard to when
judgment might
be expected to be delivered. On the basis thereof he
stated in paragraph 11.5 of the founding affidavit that "I am
respectfully
of the view that judgment in the main application will
be forthcoming soon and that there is consequently no prejudice to
the respondent
in the event that the writ of execution is stayed
pending judgment in the main application".
[15]
AS is evident, at the time when the present application was issued,
judgment had not yet
been handed down in the main application.
The
basis of the present application:
[16]
The alleged basis of the application is set out in paragraph 12 of
the founding affidavit,
which I deem necessary to repeat herein:
"12.1
I respectfully submit that the writ of execution should be stayed
until such time as judgment is handed down in the main
application.
12.2
The applicant will suffer unnecessary damages in the event that its
goods are attached and removed, as is clearly
the intention of the
respondent in the matter.
12.3
The undertaking has been given, and is repeated herein, that in the
event that the applicant is not successful
in the main application,
payment of the amount for which the writ has been issued, will be
made to the respondent within 48 hours
of the judgment being
received.
12.4
I respectfully submit that it is reasonably believed that the
judgment will be forthcoming very soon and is likely
to be received
even prior to the Sheriff executing the writ of execution.
12.5
In the event that the writ is not stayed as prayed for in this
application, the applicant has no guarantee that
it will be able to
successfully reclaim its damages suffered as a result of execution
steps being taken especially in view thereof
that it already has a
claim in excess of R45 million pending against the respondent as is
evident from the main application.
12.6
The applicant simply has no alternative remedy available to it but to
approach the Honourable Court for the stay
of the writ of execution
as alluded to above in view thereof that the respondent and his
attorneys are not amenable to consent
to same being stayed pending
judgment in the main application.
In
the premises, it is submitted that a proper case has been made out
for the relief sought and specifically, that there is no prejudice
for the respondent if the writ is stayed in the circumstances."
Urgency:
[17]
Mr Zietsman, who appeared on behalf of the respondent, indicated at
the commencement of
the hearing of the application that the
respondent, without making any concession regarding the merits of the
application, does
not oppose the granting of condonation in terms of
prayer 1 of the notice of motion. I consequently granted such an
order.
Merits
of the application:
[18]
The applicant is seeking an
interim
interdict pending the finalisation
of the main application, more particularly, the handing down of the
judgment therein.
[19]
The requirements for an
interim
interdict are trite:
"(a)
A
prima facie
right;
(b)
A well-grounded apprehension of irreparable harm if the interim
relief is not granted and
the ultimate relief is eventually granted;
(c)
That the balance of convenience favours the granting of an interim
interdict; and
(d)
That the applicant has no other satisfactory remedy."
See
LAWSA,
Vol. 11, 2
nd
Edition, at para 403.
Prima
facie
right:
[20]
The first requirement for an interim interdict is a prima facie
right, namely prima facie
proof of facts that establish the existence
of a right in terms of substantive law. In
National
Gambling Board v Premier of
KwaZulu-Natal and Others
[2001] ZACC 8
;
2002
(2) BCLR 156
(CC)
at para
[41]
it was confirmed that an applicant for an interim interdict must show
a prima facie right to the main relief pending which the
interim
interdict is sought. The test for such a
prima
facie
right was set out in
Simon
N.O.
v
Air Operations of Europe AB & Others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228G - H to be the following:
"Insofar
as the appellant also sought an interim interdict
pendente lite
it
was incumbent upon him to establish, as one of the requirements for
the relief sought, a
prima
facie
right, even though
open to some doubt
(Webster
v Mitchell
1948
(
1) SA 1186
{W)
at 1189). The accepted test for a
prim
a
facie
right in the context of an interim interdict is to take
the facts averred by the applicant, together with such facts set out
by
the respondent that are not or cannot be disputed and to consider
whether, having regard to the inherent probabilities, the applicant
should on those facts obtain final relief at the trial. The facts set
up in contradiction by the respondent should then be considered
and,
if serious doubt is thrown upon the case of the applicant, he cannot
succeed. (Goo/
v Minister of Justice and Another
1955 (2)
SA 682
(C)
at 6888- F and the numerous cases that have followed
it.)"
Also
see
Spur Steak Ranches Ltd
and Others v Saddles Steak Ranch, Claremont. and Another
1996 (3) SA 706 (CPD) at 714G - H.
[21]
The prima facie right the applicant is relying on is that it intends
applying set-off should
it be successful with the main application.
[22]
If it is, for the moment, to be accepted that the applicant will be
entitled to apply set-off
should it be successful with either the
main relief or the alternative relief sought in the main application,
the fact remains
that the applicant needs to establish
prima
facie,
even though open to some
doubt, that it will be successful with the main application.
[23]
In paragraph 5.3 of the founding affidavit it was stated that in an
attempt to not unnecessary
burden the papers in the present
application, it will be arranged that the court file in respect of
the main application, alternatively
a copy thereof, be placed before
the Presiding Judge in the present application, prior to the hearing
thereof.
[24]
In response to the aforesaid, the following was stated in
paragraph 4.6 of the answering
affidavit:
"
the applicant has referred the Honourable Court to the main
application and contended that it will place the main application
before the court who will hear this application on less than 4 (four)
court days' notice. The main application consists of 2217
pages and
it is simply, with respect, impossible for the motion court (Judge)
to study the main application papers and prepare
for the motion court
on such short notice. What makes it worse for the applicant is the
fact that the applicant does not direct
the Honourable Court's
attention to any particular aspect in the main application on which
the applicant intends to rely
"
[25]
In the replying affidavit the applicant's attorney of record
responded to the last-mentioned
averments made on behalf of the
respondent as follows:
"7.3
... as the respondent takes no issue with the litigious history of
the matter as set forth by the applicant
in its founding affidavit,
respectfully, it is submitted that the main application and
particularly the reading thereof is unnecessary
in the circumstances
as it is not in dispute.
7.4
In any event, as is clear from the founding affidavit, the main
application is sought to be placed before
the Honourable Presiding
Judge hearing this matter to prove that the main application exists,
that it has been finally adjudicated
and that judgment is pending -
the merits of the main application for purposes of this application
is in any event irrelevant and
only the facts as stated aforesaid,
bears relevance and are not in dispute as the respondent has admitted
same in its opposing
affidavit filed "
[26]
It is important to be mindful of the fact that although the
respondent did not dispute
the litigious history set out in the
founding affidavit, he did not concede the merits of the main
application.
[27]
The main application was at no stage placed before me. In any event,
even if it had been
placed before me, the respondent is correct in
his contention that the applicant would in any event not have been
entitled to rely
on any aspect thereof without having incorporated
same in the present application.
[28]
The applicant consequently completely failed to make any allegation
whatsoever
regarding or in support
of its
prima facie
chances
of being successful with either the main relief or the alternative
relief sought in the main application.
[29]
In order to successfully apply set-off, the requirements thereof must
be alleged and proved.
In
Amler's
Precedents of
Pleadings,
L.T.C. Harms, the learned author states the following with reference
to applicable case law:
"To
rely on set-off, the defendant must
allege
and
prove
(a)
the indebtedness of the plaintiff to the defendant;
(b)
that the plaintiffs debt to the defendant is due and payable;
(c)
that both debts are liquidated;
(d)
that the parties are indebted to each other in the same capacity."
[30]
Other than the averment in the founding affidavit that the debt due
by the Trust to the
applicant, for which the respondent is allegedly
responsible as surety and co-principal debtor, is with regard to
"goods sold
and delivered", there is no specific allegation
and/or proof that it is a liquidated debt. Even if it is to be
accepted for
purposes of this application that the alleged debt is
indeed liquidated on the basis that an averment of "goods sold
and delivered"
is generally accepted to be a reference to a
liquidated amount, there are no allegations which constitute prima
facie proof that
the said debt is "due and payable" by the
respondent to the applicant. On the applicant's own version, as
stated in the
e-mail of 4 July 2022 attached to the founding
affidavit as annexure "FAS", to which e-mail I already
referred to earlier,
it is evident that this requirement is in
dispute. In this regard the applicant's attorney of record
specifically stated as follows:
"Verder,
en sou dit later blyk dat u klient as borg onthef is (wat ons klient
steeds ontken) onderneem ons klient om die betaling
te maak binne 48
uur vanaf die datum waarop die uitspraak ter hand gekom het wat
bevestig dat u klient inderdaad as borg onthef
is."
[31]
Without even considering the other requirements for purposes of
successfully relying on
set-off, it is evident that the applicant
will only be entitled to rely on and apply set-off once the court
adjudicating the main
application finds that the alleged debt is in
fact due and payable by the respondent to the applicant.
[32]
It was consequently essential for the applicant to have dealt with
the merits of the main
application with regard to this aspect in
order to have established a
prima
facie
right, though open to some doubt. Having failed to do so, I deem it
unnecessary to consider whether the applicant made out a proper
case
with regard to the other requirements for set-off.
[33]
Similarly, having failed to allege and prove a
prima
facie
right for purposes of
establishing an
interim
interdict,
I deem it unnecessary to determine whether the applicant made out a
proper case for purposes of the other requirements
of an
interim
interdict.
[34]
The aforesaid findings pertain to both the main and the alternative
relief sought in the
main application.
[35]
The application consequently stands to be dismissed.
Costs:
[36]
In the answering affidavit it is requested that the application be
dismissed with costs
on a punitive scale. In support of this
contention, the respondent's attorney of record stated on behalf of
the respondent that
the applicant's intention of placing the main
application before me in the circumstances of this matter constituted
an abuse of
court process.
[37]
I have already indicated what the response of the applicant's
attorney was to the aforesaid
allegation and that the main
application was subsequently not placed before me. This aspect has
consequently fallen away as a possible
basis for a punitive costs
order.
[38]
It was further contended in the answering affidavit that "the
applicant, through its
attorney, Noordman, has clearly pressurised
the Honourable Justice Naidoo to deliver a judgment simply because it
wants to avoid
payment of a monitory judgment of this Court."
Although it is correct that the enquiry was made to the registrar of
Naidoo,
J, it was the applicant's attorney himself who revealed same
in the founding affidavit. He did not attempt to or consider it
necessary
to hide the communication. This factor, as well as the
wording of the enquiry directed at the said registrar, are in my view
cannot
in my view be considered to not indicative of an attempt to
have pressurised Naidoo, J.
[39]
Although the institution of this application was, in my view, ill
conceived and/or
ill-advised, that, in itself, does not constitute a
basis for a punitive costs order and is not necessarily indicative of
an abuse
of court process.
[40]
There is, however, no reason why costs should not follow the outcome
of the application.
Order:
[41]
The following order is made:
1.
The application is dismissed with costs.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
R Bester
Instructed
by
:
Noordmans Inc
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
PJJ Zietsman SC
Instructed
by
:
Muller Gonsior Inc
BLOEMFONTEIN