About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 464
|
|
Jomahil Crushing Merchants (Pty) Ltd v Mopani Crushers (Pty) Ltd (32408/21) [2021] ZAGPPHC 464 (16 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 32408/21
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
16
July 2021
In
the matter between:
JOMAHIL
CRUSHING MERCHANTS (PTY)
LTD APPLICANT
and
MOPANI
CRUSHERS (PTY)
LTD RESPONDENT
JUDGMENT
Van
der Schyff J
[1] The
applicant approached the urgent court for an order directing the
respondent to permit the applicant to
uplift and remove equipment (a
Crush Ranger Plant, part number AD1301) which had been let to the
respondent by the applicant in
terms of a lease agreement entered
into between the parties on or about 12 January 2021. Although it
seems as if the respondent
disputed the existence and terms of the
lease agreement, counsel for the respondent stated unequivocally that
the existence and
terms of the lease agreement are not disputed, but
common cause. The parties are also engaged in previous contracts, the
most significant
of which is a contract relating to constructing a
static crushing plant entered into during 2018.
[2] The
respondent contested the urgency of the application. The respondent
was provided with a short period to
note its opposition to the
application. The court needs to consider whether to condone the fact
that the application was enrolled
on the urgent court roll and will
receive preferent treatment to applications enrolled on the ordinary
opposed motion roll and
the truncated time period for the filing of
papers devised by the applicant. This can only be done on a proper
evaluation of the
facts.
[3] The
applicant leased out crushing equipment to the respondent. The
applicant is not the owner of the property.
It has a protectable
legal interest in the property. In terms of the agreement between the
applicant and the property owner, the
applicant is entitled to let
out and hire equipment to third parties. In terms of the agreement
concluded between the parties,
the applicant let the equipment that
forms the subject matter of this application to the respondent for a
period of 6 months. The
respondent paid the deposit, and the
applicant delivered the equipment. The respondent did not honour its
payment obligations in
terms of the contract. The last payment
received was on 16 April 2021, and this payment did not extinguish
previous shortfalls.
After the applicant engaged with the respondent
to resolve the breach, the respondent advised that it did not have
the funds to
meet its contractual obligations. Further discussions
were fruitless. The applicant avers that it cancelled the lease on 1
May
2021.
[4] After
cancelling the agreement with the respondent, the applicant advised
the equipment owner that the equipment
would be available for other
contracts. The equipment was leased out to a mining company in
Tanzania. The equipment needs to be
transported to Tanzania, and
operations will commence by no later than 31 July 2021. It will take
approximately three weeks to
deliver the equipment to Tanzania.
Commercial urgency has been held to constitute urgency as
contemplated in Rule 6(12). Amidst
the economic devastation brought
about by the global Covid-19 pandemic, I am convinced that the
protection of commercial interests
justifies a ruling that the
application is indeed urgent. The applicant will not be afforded
substantial redress if the application
is heard in the ordinary
motion court. In addition, correspondence appended to the founding
affidavit indicates that the applicant
endeavoured to come to an
amicable arrangement with the respondent before approaching the
court. This court cannot fault such an
approach and therefore
condones non-compliance with the time periods provided for in Rule
6(5).
[5] The
respondent disputes that the agreement was cancelled. The respondent
avers that the lease agreement concluded
between the parties still
exists and that the applicant did not cancel it. This submission is
based on the fact that the applicant
stated in the founding affidavit
that the agreement was cancelled on 1 May 2021, but the applicant’s
attorney, in response
to a letter dated 7 June 2021 received from the
respondent, stated that the letter constituted a termination of the
agreement,
which the applicant accepts. The respondent avers that the
same agreement cannot be terminated twice, and the court must accept
that it was not terminated on 1 May 2021. Respondent’s counsel
did not clearly differentiate between the lease and the preceding
separate contractual arrangement between the parties. The lease is a
stand-alone agreement. Counsel submitted that the dispute
between the
parties regarding whether the applicant terminated the lease
agreement, is a material factual dispute and that ‘not
even the
Plascon Evans Rule can save the situation’. I disagree. The
Supreme Court of Appeal explained in
Wightman t/a JW Construction
v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) paras [12]
– [13]:
‘
Recognising that
the truth almost always lies beyond mere linguistic determination
courts have said that an applicant who seeks
final relief on motion,
must, in the event of conflict, accept the version set up by his
opponent unless the latter’s allegations
are, in the opinion of
the court, not such as to raise a real, genuine or
bona fide
dispute of fact or are so far-fetched or clearly untenable that the
court is justified in rejecting them merely on the papers.
… A
real, genuine and
bona fide
dispute of fact can exist only
where the court is satisfied that the party who purports to raise the
dispute has in his affidavit
seriously and unambiguously addressed
the fact, said to be disputed.’
[6] As
it emanates from the papers filed, the main dispute between the
parties revolves around the existence of
the agreement concluded
between the parties during March 2018. This dispute is of no concern
for determining the issue at hand,
namely whether the lease agreement
between the parties was terminated. Despite denying the terms of the
lease agreement in the
answering affidavit, counsel conceded during
argument that a lease agreement was concluded and that the terms
thereof correspond
with the terms contained in the lease agreement
attached to the founding affidavit. This document was signed on
behalf of the respondent.
The applicant’s representative
initialed the respective pages of the agreement, although he did not
sign in full on the last
page. There is no reason to find that the
agreement did not come into force.
[7] Clause
3 of the agreement is the ‘rental’ clause. It is stated
in the definition section that ‘rental’
means the agreed
rate charged in respect of the respective machines, as agreed between
the parties to the agreement. The parties
agreed that the rental per
month would amount to R 300 000.00 excluding VAT. They agreed that
the minimum production per month
would be 75000 saleable tons. The
rental included the costs of the operator, regular maintenance,
breakdowns, and spare parts.
For the first three months of the
agreement, the parties agreed to waive the rental as follows:
‘
3.3.1 The first
month Rental is an amount of R250 000 + VAT be paid upfront …
3.3.2 Once the Rock
Ranger arrives on site an amount of R100 000.00 shall be made
available by Mopani for the first month operations
(all inclusive:
Diesel, spares, maintenance and labor).
3.3.3 For the subsequent
two months only R150 000.00 per month shall be made available for
operations.
3.3.4 The amounts in
3.3.2 and 3.3.3 above are budgeted amounts made available for
operations. Should these operating amounts not
be sufficient for
monthly expenses budget overrun shall be agreed to by the parties and
paid by the Lessee.
3.3.5 The Lessor shall
provide substantiated invoices for the running costs to draw from the
monthly budgeted amount.
3.3.6 The parties shall
agree on how the debt is repaid.’
[8] The
respondent paid the deposit, and the equipment was delivered. The
respondent failed to pay the additional
amount of R100 000.00 and
only paid R 32 839.80 on 10 February 2021. The respondent failed to
pay R150 000.00 in March but paid
the said amount in April. The
respondent did not pay any further amount.
[9] In
an email dated 1 May 2021, the applicant enquired regarding the
outstanding rental payment for April 2021.
It stated that the owner
wants the respondent to move the unit in the coming week. On 2 May
2021, the respondent’s representative
informed that the
respondent is low in cash and stated unequivocally that the
respondent could not pay the rent. The respondent
wanted a meeting to
discuss the way forward regarding the equipment. On 3 May 2021, the
applicant informed the respondent that
the equipment cannot be kept
on-site if an amount of R 225 000.00 was not paid over to the owner
and that the equipment could not
be the subject of any new agreement
concluded between the parties. On 5 May 2021, the applicant informed
the respondent that the
equipment would be uplifted in the next week
and that the respondent’s assistance was required to load
items.
[10] The
applicant’s representative informed Mr. Kgatle, and two
officials, known as Temba and Philemon,
that he had no choice but to
terminate the existing lease agreement. Mr. Kgatle is the official
who signed the lease agreement
on behalf of the respondent. Following
arrangements made with Mr. Kgatle, the applicant dispatched a
transporter to the site to
collect the equipment. He was prevented
from entering the premises to collect the equipment. It is important
to note that the respondent
answered this allegation with a bare
denial and then elaborate on issues not related to the lease
agreement. The respondent’s
answer confuses the lease agreement
with the agreement relating to constructing a static crushing plant.
The respondent provides
no detailed submissions in support of the
bare denial. No affidavit is filed wherein Mr. Kgatle denies these
averments. In view
of the bare denial and the absence of an affidavit
from Mr. Kgatle wherein the opposite is averred, the email
communication sufficiently
indicates that the lease agreement was
cancelled by 5 May 2021.
[11] The
respondent avers that the applicant is indebted to it in the amount
of R5 841 215.75. It needs to be mentioned
that only R370 000 of this
amount is allegedly owed in relation to the equipment and the lease
agreement. The respondent avers
that it has a right of retention on
the equipment. It submits that it is the only way to recover its
losses and the amounts due
to it by the respondent. Professor R Brits
explains in his monograph
Real Security Law
(JUTA, 2016) 483,
that a lien or a right of retention is the right of one person to
retain physical control of the property of
another if he had expended
money or money’s worth on such property while it was under his
control. The respondent failed
to make out a case that it has a right
to retain the equipment.
ORDER
In
the result, the following order is made:
1. The
draft order marked X, dated and signed by me, is made an order of
court.
E
van der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. As a
courtesy gesture,
it will be sent to the parties/their legal representatives by email.
The date for hand-down is deemed to be 16
July 2021.
Counsel
for the applicant: Adv.
A Lamprecht
Instructed
by: Sporides
Attorneys
Counsel
for the respondent: Adv. ME
Sebjeni
Instructed
by: Ramulifho
Attorneys Inc.
Date
of the hearing: 13
July 2021
Date
of judgment: 16
July 2021