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[2021] ZAGPJHC 455
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JL Excavators (Pty) Ltd v C Rock Mining (Pty) Ltd (9347/2020) [2021] ZAGPJHC 455 (22 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
9347/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
DATE
22 September 2021
In
the matter between:
JL
EXCAVATORS (PTY)
LTD
Applicant
and
C
ROCK MINING (PTY)
LTD
Respondent
JUDGMENT
MAHON
AJ
[1]
In its notice of motion, the applicant
sought a winding-up of the respondent,
alternatively,
judgment for payment of an amount of R394,052.37 together with
interest at a rate of 10%
per annum a
tempore morae.
[2]
At the hearing of the matter, the applicant
indicated that it would not be persisting with its prayer for a
winding-up order and
would only be seeking judgment as prayed for in
the alternative.
[3]
The respondent argued, as a preliminary
point, however, that it was not open to an applicant to seek judgment
as an alternative
to a winding-up order and that, for this reason,
the application ought to be dismissed. The respondent was, however,
unable to
point me to any authority in support of these submissions
and, understandably, did not press the issue.
[4]
I can see no difficulty in an applicant
seeking judgment as an alternative to a winding-up, as long as the
case for judgment is
sustained on the papers and the respondent has
had an opportunity to deal with the claim for such relief. Indeed, it
seems to me
that the court, when faced with a winding-up application,
if it were not satisfied that the requirements for a winding up had
been
met but was nonetheless satisfied that the debt relied upon was
indeed due, owing and payable, could nonetheless grant judgment
in
the applicant’s favour if it considered it just to do so.
[5]
I find support for this conclusion in the
wording of section 347(1) of the Companies Act 61 of 1973 (which
remains of application
by virtue of item 9, schedule 5 of the
Companies Act 71 of 2008
). The section provides that:
“
The Court may
grant or dismiss any application under
section 346
, or adjourn the
hearing thereof, conditionally or unconditionally,
or make
any interim order or any other order it may deem just
, but
the Court shall not refuse to make a winding-up order on the ground
only that the assets of the company have been mortgaged
to an amount
equal to or in excess of those assets or that the company has no
assets”
(my emphasis).
[6]
I turn now to the merits of the application
for payment.
[7]
the applicant leased an excavator and two
articulated dump trucks to the respondent for the period 15 March
2018 to 16 May 2018
in terms of an oral agreement. It complains that
amounts owed by the respondent in terms of this agreement remain
unpaid.
[8]
The defence raised by the respondent is one
of payment. But for such payment, the respondent accepts that an
amount of R394,052.37
would otherwise be due and payable by the
respondent to the applicant.
[9]
The respondent contends that the aforesaid
amount was paid on its behalf by a third party, Palaeo Mining (Pty)
Ltd (“Palaeo”)
out of funds of the respondent held
by Palaeo on the respondent’s behalf. This was apparently done
for practical reasons
to expedite the payment to the respondent,
rather than transferring the amount from Palaeo first and then making
payments from
the respondent's own accounts.
[10]
In paragraph 8 of the answering affidavit,
the respondent states as follows:
“
The
respondent settled this indebtedness by arranging for Palaeo Mining
to make 3 (three) payments to the applicant, on the following
dates
and in the following amounts:
8.1 On 26 March 2018,
an amount of R1,000,000;
8.2 On 2 May 2018, an
amount of R250,000;
8.3 On 10 May 2018, an
amount of R130,000."
[11]
At the time of the payments, however,
Palaeo was also indebted to the applicant and the payments which were
made were attributed
by the applicant to the debt of Palaeo in
reduction of its indebtedness to the applicant.
[12]
The respondent states that “
on
the respondent's
[presumably intended
to be a reference to the applicant’s]
own
version, the fact that these payments were to be allocated to the
indebtedness of the respondent, was communicated to the
applicant...”.
However, the
applicant’s version is that this was communicated to it
sometime after the payments were made and only once the
applicant had
followed up with the respondent in regard to the outstanding amounts.
[13]
It is not suggested by the respondent that,
at the time that the payments were made, it was communicated to the
applicant that such
payments were being made by Palaeo on the
respondent’s behalf in reduction, not of the indebtedness of
Palaeo, but in reduction
of the indebtedness of the respondent.
[14]
On the basis of the aforesaid facts, the
respondent contends that there is a
bona
fide
and material dispute of fact which
cannot be resolved on the papers and that I should accordingly
dismiss the application.
[15]
It seems to me, however, that the dispute
is not factual in nature as the underlying facts appear, largely, to
be common cause.
Even if it is accepted that Palaeo’s
subjective intention in making the payments was to do so, not on its
own behalf but
on behalf of the respondent, the real question is
whether, in the light of Palaeo’s silence, the applicant was
entitled to
attribute such payments to Palaeo’s debt rather
than to the respondent’s debt. This is a legal question and can
be
disposed of with reference to legal authorities on the point.
[16]
In
the absence of
delectus
personae
,
a debtor may validly perform through an agent,
[1]
and a third party may intervene and validly perform with or without
the knowledge of the debtor and even against the debtor’s
will,
provided
the third party makes clear that it is performing in the name and on
behalf of the debtor
.
[2]
[17]
The
proviso emphasised above is not without significance, for the
creditor is entitled to reject performance by a third party if
it is
not made in the name and on behalf of the debtor.
[3]
[18]
As it is put by Pothier,
Obligations
,
111.1.1. (
Evans'
trans.
at p. 330) -
"It is not
essential to the validity of the payment that it be made by the
debtor, or any person authorised by him; it may
be made by any person
without such authority, or even in opposition to his orders, provided
it is made in his name, and in his
discharge, and the property is
effectually transferred; it is a valid payment, it induces the
extinction of the obligation, and
the debtor is discharged even
against his will."
[19]
The payment must accordingly have been made
in the respondent’s name and in its discharge, whatever the
transactor’s
subjective intention may have been. From this it
appears that the transactor’s subjective intention must give
way to the
outward manifestation of what his intention may be.
[20]
In the present matter, not only did Palaeo
not communicate any intention to have made the payment on the
respondent’s behalf,
it clearly indicated on each proof of
payment that the payment was being made by Palaeo when it could,
quite easily, have given
some indication in the payment reference
that it was to be attributed to the debt of the respondent.
[21]
Thus, if one accepts that Palaeo’s
intention can only be deduced from the outward manifestation of its
intention, then it
seems that the applicant was justified in
attributing the payments to the debt owed by Palaeo to the applicant.
[22]
That being the case, the payments which
were made by Palaeo cannot legally be concluded to have been made on
the respondent’s
behalf. The defence of payment must
accordingly fail.
[23]
Although the notice of motion prays for
interest at a rate of 10%, no submissions were advanced in support of
this and the rate
of interest was not dealt with in any of the
affidavits before court. I therefore merely intend to grant interest
a tempore morae.
[24]
Judgment is accordingly granted against the
respondent for:
[24.1]
payment of the amount of R394,052.37;
[24.2]
interest on the aforesaid amount
a
tempore morae
until date of payment;
[24.3]
the applicant’s costs of the
application.
D
MAHON
Acting
Judge of the High Court
Johannesburg
APPEARANCES
:
For
the applicant: Adv A P J Els
Instructed
by:
Albert Hibbert Attorneys
For
the respondent: Adv C J C Nel
Instructed
by: J J
Badenhorst & Associated Attorneys Inc.
Date
of hearing: 7 September 2021
Date
of judgment: 22 September 2021
[1]
Voet
46 3 1.
[2]
Union
Bank v Beyers
(1884) 3 SC 89
102; Commissioner for Inland
Revenue v Visser
[1959] 2 All SA 19
, 1959 (1) SA 452 (A)
457–8;
Froman
v Robertson 1971 (1) SA 115 (A)
[3]
Blake
v Wickham and Hattingh 1952 1 PH A14 (O)