About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2021
>>
[2021] ZAKZPHC 44
|
|
Le Sueur v Stainton and Another (2091/19P) [2021] ZAKZPHC 44 (28 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable
CASE
NO: 2091/19P
In
the matter between:
ROBERT
ANTHONY LE SUEUR
Plaintiff
and
RODERICK
ROBERT STAINTON
First Defendant
ROKWIL
CIVILS PROPRIETARY LIMITED
Second Defendant
ORDER
1.
The defendantsâ application in terms of Uniform Rule 6(5)
(g)
for the referral of certain issues for the hearing of oral evidence
is dismissed with costs.
2.
Judgment is granted in favour of the
plaintiff against first and second defendants jointly and severally,
the one paying the other
to be absolved, in accordance with the
confessions to judgment dated 3 April 2019, as follows:
2.1
Payment of the amount of R103 128 603.15.
2.2
Payment of interest on the amount of R103 128 603.15 at the rate of
10.25% per annum from 29 February
2020 to date of final payment, both
days inclusive.
2.3
Payment of the plaintiffâs costs of suit
on the scale as between attorney and own client.
JUDGMENT
delivered
on: 28 July 2021
BEZUIDENHOUT
AJ
Introduction
[1]
The plaintiff, Robert Anthony Le Sueur,
instituted action against the first defendant, Roderick Robert
Stainton and the second defendant,
Rokwil Civils (Pty) Ltd (Rokwil)
on 25 March 2019, claiming payment of the amount of
R 100 million
together with interest and costs of suit, on the attorney and own
client scale.
[2]
The defendants did not defend the action
but instead signed confessions and consents to judgment in terms of
Uniform Rule 31(1) for
R 100 million together with interest and
costs in favour of the plaintiff on 3 April 2019.
[3]
On 28
February 2020, plaintiff filed a
notice of application in terms of Uniform Rule 31(1)
(c)
in accordance with the confessions to judgment (attached to the
notice) and applied for judgment in the following terms:
(a)
That the defendants are directed jointly and severally, the one
paying the other to be absolved,
to pay the sum of R103 128 603-15 to
the plaintiff;
(b)
The defendants are directed jointly and severally, the one paying the
other to be absolved,
to pay interest on the sum of R103 128 603-15
at the rate of 10,25% per annum from 29 February 2020 to date of
final payment, both
dates inclusive;
(c)
That the defendants are directed jointly and severally, the one
paying other to be absolved,
to pay the plaintiffsâ costs of suit
on the scale as between attorney and own client.
[4]
The application is accompanied by a
supporting affidavit, attested to by the plaintiff, wherein he set
out a brief history of the
matter with reference to an agreement and
settlement agreement entered into between the parties, as well as an
acknowledgement of
debt signed by both defendants prior to the
issuing of summons. He also attached a certificate of balance
which indicated that
the balance owing was the amount of R103 128
603-15, which included interest at an agreed rate.
[5]
The defendantsâ current attorney of
record filed correspondence dated 27 February 2020, in the court
file. The apparent intention
was to alert whichever judge was to
consider the application in chambers, to the fact that it was
instructed to âbring an urgent
interdict disputing the validity of
the confession to judgment, acknowledgement of debt and the
underlying causa, both individually
and collectivelyâ. It also
stated that the defendants signed the confession to judgment without
them obtaining legal advice.
[6]
The first defendant attested to an
affidavit (also duly authorised to act on behalf of second
defendant), which was filed on 3 March
2020. On 4
March 2020, Poyo Dlwati J made an
order, referring the application to open court. The first defendantâs
supplementary affidavit
followed, filed on 15 May 2020.
[7]
The plaintiff filed a comprehensive
replying affidavit on 1 December 2020.
[8]
The matter was set down for argument on the
opposed roll on 16 April 2021. On 6 April 2021, the defendantsâ
filed an application
in terms of Uniform Rule 6(5)
(g)
for the referral for oral evidence of certain issues set out in
Annexure âAâ to the notice of motion. The issues to be resolved
at such hearing were:
â
i)
whether Stainton disclosed to Le Sueur that Rokwil was doing the
civil engineering
work at the Mr Price site or mislead him into
believing that the work was being done by an independent contractor;
ii)
the question of who drafted the value share agreement and whether
Paul Hay introduced
changes into the draft agreement after 26
September 2017 designed to harm Stainton and Rokwil economically;
iii)
whether the conduct of Le Sueur in concluding the value share
agreement, the acknowledgment
of debt, and requiring Stainton and
Rokwil to sign a confession to judgment amounts to duress in law such
as to render the value
share agreement, the acknowledgement of debt
and the confession to judgement void and unenforceable;
iv)
whether Le Sueur was at all material times a registered credit
provider in terms of
section 40(1)(b)
of the
National Credit Act 34
of 2005
;
v)
what was the value of Rokwil and its profitability was for the
purpose of the value
share agreement.â
[9]
The plaintiff opposed the application and
filed an answering affidavit after which the defendants filed their
reply shortly before
the hearing of the matter.
[10]
The defendants did not at any stage apply
in terms of Uniform
Rule 6(5)
(e)
to be allowed to file a further affidavit in order to respond to the
plaintiffâs replying affidavit in the main application. Defendants
instead chose to address certain disputes in the application for
referral for oral evidence.
[11]
Due to the complex facts and numerous
issues to be considered and decided upon, as will become apparent
below, the time allocated
for the hearing of the matter was
insufficient and I permitted both counsels acting for the parties to
file further heads of argument
to address me on two remaining issues
not fully canvassed at the hearing. I received further comprehensive
heads of argument on 23
April 2021 and on 5 May 2021 respectively,
for which I am indebted.
Background
[12]
It is common cause that the plaintiff and
the first defendant had known each other for close to 20 years and
had become business associates
and friends. The plaintiff had various
business interests and was involved in, inter alia commercial and
residential developments,
a private equity business investing in
emerging businesses and a farming business in Zambia. First defendant
was a charted accountant,
but had become an experienced businessman,
involved in residential developments and mini-factory developments.
[13]
During the beginning of 2012, the plaintiff
approached the first defendant with a view to possibly develop land
in the Hammersdale
area. The first defendant was willing to become
involved in the development of the land as a light industrial park
providing warehousing
facilities and logistic premises. As the first
defendant did not have the money available, it was agreed that the
plaintiff would
provide finance to purchase the land and fund the
initial development whilst the first defendant would manage the
development, referred
to as the soâcalled âsweat equityâ.
[14]
The plaintiff and the first defendant had
previously conducted business together and achieved great success
without much formality.
The plaintiff trusted in the first
defendantâs ability to deliver a complex property development. The
plaintiff (on his version)
informed the first defendant that after
repayment of the funds provided by him, they would share equally in
the net profit generated
by the development. The Keystone Park
development came into being.
[15]
The land was purchased and registered in
the name of Keystone Park CC. The Crowned Eagle Trust,
plaintiffsâ family trust and
the Keystone Trust, first defendantsâ
family trust, each held a 50% memberâs interest in Keystone Park
CC. Keystone Park CC would
develop the land and generate an income by
selling or leasing serviced light industrial plots in the
development. The Crowned Eagle
Trust and the Keystone Trust would
share in the profits created in Keystone Park CC.
[16]
The plaintiffâs case is that during the
discussions relating to the development of Keystone Park, he and the
first defendant realised
that substantial work and business
opportunities, such as earthmoving and installation of infrastructure
would arise, that would
not fall within the ambit and purpose of
Keystone Park CC. It was agreed that the first defendant would set up
a special purpose
vehicle (âSPVâ) which would compete for the
performance of such work or business opportunities and that the
plaintiff and the
first defendant would be equal shareholders or
members of the SPV. It was also agreed that they would share in
the value created
in the SPV.
[17]
Subsequently the plaintiff left the
procurement of tenders for the civil works in the hands of the first
defendant. On 18 June 2016,
the plaintiff had a conversation at a
social event with Mr James Te Riele, who remarked that they
(referring to the plaintiff and
the first defendant) had made the
right decision to do all the civil works themselves, as they would
own all the equipment afterwards.
The plaintiff informed Mr Te Riele
that the first defendant told him that outside contractors attended
to the civil works. Mr Te
Riele suggested that the plaintiff go check
for himself.
[18]
A confrontation between the plaintiff and
the first defendant followed on 20 and 21 June 2016 during which the
plaintiff accused the
first defendant of lying to him and the first
defendant allegedly apologised and acknowledged that he should
have told him
about it. The civil works were apparently being done by
through Rokwil, in which the plaintiff held no interest.
[19]
The plaintiff, after the confrontations between himself and the first
defendant, addressed an email to
first defendant on 28 July 2016. The
email is important for reasons which will become clear below. The
relevant portions read as
follows:
â
I
am still not 100% happy that we have cleared up the Keystone issues.
I
have been giving a lot of thought to how to make sure that going
forward we are fully aligned and we donât have any future
misunderstandings.
I donât believe we have resolved clearly
enough the way forward, and it must be sorted out now before we
continue with the project.
We need to do this for our
friendship and for good business.
I
think we need to dedicate a day together to agree exactly how we are
going to move forward together. I want us to understand
clearly
how the project will run before we draw down on the R346 million from
Nedbank. I need a clearer understanding and I want
to be more
involved in the detail and associated costs, and we need clarity on
structures, reporting and the detailed numbers.
As
I re-iterated yesterday and we both agreed the project was to run on
the basis we agreed upfront and I donât think it is at the
moment.
We agreed that everything to do with Keystone and any business or
opportunities that developed out of the Keystone
development would be
done on a 50/50 basis as partners. I think we both want this
and agree that was what our intentions are,
but we need to understand
the detail as to exactly how this is implemented before things get
more complicated down the line.
I
will give you a call later so we can find a day that suits to meet
without any interruptions so we can clear things up and agree
the way
forward for both of our benefit.â
[20]
The first defendant did not respond to the email. Between August 2016
and August 2017, the plaintiff
kept on requesting the first defendant
to indicate what progress he was making to rectify the situation. The
plaintiff and the first
defendant subsequently had a meeting on 29
August 2017 at the offices of Rokwil where the plaintiff apparently
placed the first defendant
on terms regarding the resolution of the
issue between them. The plaintiff requested the first defendant to
draft an agreement setting
forth the manner in which âthe wrong
committed against him would be rectified.â
[21]
On the 31 August 2017 the plaintiff received a draft agreement from
Ms Sue Bartlett, who was employed
as second defendantsâ legal
manager. She is a qualified and experienced attorney. As mentioned
above, the first defendant himself
is a chartered accountant and
previously practised as such. The draft agreement, known as the value
share agreement, was the first
of eleven drafts, which culminated in
the signing of the final value share agreement by all the parties on
2 November 2017. The first
draft referred only to the plaintiff and
the first defendant as the parties to the agreement.
[22]
The first draft of the value share agreement commenced with an
introduction which reads as follows:
â
1.1
Stainton and Le Sueur, as representatives of various entities and in
their personal capacities,
have participated in and contributed to
development projects and have shared business interests on an
informal business.
1.2
The purpose of this Agreement is to clarify and record each partyâs
rights and obligations
regarding their respective interests,
contributions and shares in various projects from mid 2012 until date
of signature of this
Agreement (âDate of Signatureâ), and to
record their future roles, rights, obligations and interests in
shared business ventures.
1.3
It is recorded that Rokwil Pty Ltd is and has always been wholly
owned by Stainton and is
used and will continue to be used as his
personal trading vehicle. Shared value has been created in
Rokwil and the purpose
of this Agreement is inter alia to identify
and distribute such shared value as originally agreed between the
Parties.â
[23]
In terms of clause 2.3 of the first draft of the value share
agreement
â
The
parties agree that on principle they will share equally in the net
value or loss created directly in DELIVERING the Keystone project
irrespective of howsoever created, such value or loss to be allocated
and distributed in terms of Clause 8.2. It is specifically
agreed that such value is not payable in cash by either partyâ.
[24]
The first draft of the value share agreement made provision for the
parties to share in certain projects
and interests but also
specifically excluded various projects, properties and interests of
the first defendant and Rokwil.
[25]
Clause 8, with the heading âContext and manner of settlementâ
reads as follows:
â
8.1
From inception of the Keystone project, Stainton has managed and
facilitated the day-to-day operations,
implementation and delivery of
all aspects of Keystone, has signed suretyships and personal
guarantees and has utilised personal
cash flow and funds of Rokwil
for the benefit of Keystone. It is recorded that for this service
Stainton (and Rokwil) has not levied
interest or charges for the
purpose of the value share agreement ,and will not levy such interest
and charges, As consideration
for these services, it is agreed
that in calculating the values allocated to each party in terms of
this Agreement (being shared
value created in delivering Keystone),
Stainton is entitled to an additional R250 000,00 (Two hundred
and fifty thousand rand)
per month (on average) calculated from
01/01/2013 until Date of Signature. This shall not be paid in
cash but used in the calculation
of the value share.
8.2
It is agreed that the allocated and agreed values due to or by each
Party shall not be payable
or claimable by either Party in cash, but
will be calculated as and when the included projects referred to in
Clauses 2, 3, 4 and
5 are concluded . . . Such values will be
settled by means of asset transfers and adjustments between the
Parties. The Parties
will endeavour to finalise this process within
24 months of Date of Signature, or sooner if possible. . .â
[26]
In the period following the receipt by the plaintiff and his attorney
of record, Mr Paul Hay, of the
first draft of the value share
agreement, the first defendant, Ms Bartlett, the plaintiff and Mr Hay
continued to amend and refine
the first draft. It ultimately resulted
in the final draft, which the parties signed on 2 November 2017.
[27]
In the process of producing the final draft, the parties exchanged
various emails and the first defendant
offered on several occasions
to meet with the plaintiff and Mr Hay to discuss the various drafts.
From the correspondence attached
to the affidavits it appears that on
occasion Mr Hay would forward a draft to the first defendant, with an
indication in the accompanying
email that âthe amendments have been
marked in redâ. On occasion the first defendant emailed an amended
draft to Mr Hay wherein
he amended various clauses in manuscript.
[28]
From the final value share agreement, it is clear that Rokwil is now
also a party to the agreement, having
been added as a party from
around the fourth draft, which emanated from Ms. Bartlett. The joint
and several liability of the defendants
were introduced by Mr Hay in
the seventh draft. The introduction reads inter alia as follows:
â
2.1
The Parties confirm that since 2012 they have been involved in
various commercial opportunities
which include:
2.1.1
The
delivery
of the Keystone Park Development (âthe
Developmentâ); and
2.1.2
Transactions that arise from, or are connected to, the delivery of
the Development (âConnected
Transaction/sâ) in which Stainton and
Le Sueur agreed to share value gained (âthe Value Shareâ)
on an equal basis (50:50)
(âthe Initial Agreementâ).
2.2
Le Sueur initially identified the development land, secured and
funded its acquisition.
2.3
Stainton was appointed to administer the Development and all
Connected Transactions,
which administration including him recording
all income and expenses derived therefrom and accounting to Le Sueur
therefor.
2.4
At the commencement of the Development and as the Development
progressed Keystone
obtained a number of quotations from independent
third parties for the delivery of the Development. Rokwil
undertook to deliver
the Development to Keystone on the basis that
the cost of such delivery would be equal to or less than the lowest
of the quotations
received by Keystone, as aforesaid. Keystone
accordingly awarded the contract to deliver the Development to it on
this basis. In
accordance with this arrangement, Rokwil has acted as
development agent of the Development, has funded many costs of the
Development
on an ongoing basis, and has received income arising from
the Development to off-set such costs resulting in the realisation of
possible
profit . . .
2.3
The purpose of this Agreement is to inter alia identify and
distribute the Value
Share created in Rokwil between Stainton and Le
Sueur, and to clarify and regulate the Initial Agreementâ¦.
2.7
Stainton warrants that all of the Value Share has been created and
retained within
Rokwil and further that no part of the Value Share
has been created or transferred (in cash or otherwise) to any other
entity.
2.8
The Value Share has since inception to date not been recorded by
Stainton, as
contemplated in accordance with the Initial Agreement,
and the Parties now wish to record and regulate inter alia the manner
in which
such Value Share is to be dealt with.â
[29]
Clause 4 of the value share agreement dealt with the calculation of
the current value share created in
Rokwil and was to be determined as
at 31 October 2017. In terms of clause 4.3, the calculation of the
current value share within
Rokwil would, inter alia take into
consideration the income received by Rokwil from Keystone for the
delivery of the development
and from any clients within the
development, less the direct costs of providing the services, and
less an agreed average amount of
R250 000-00 per month,
calculated from 1 January 2013 until the date of signature of the
value share agreement.
[30]
Clause 4.4 contained further provisions to calculate the residual net
asset value derived from the development.
[31]
In terms of clause 4.4.2 the first defendant would prepare the
calculation of the current value share
in Rokwil, which would be
provided to the plaintiff by no later than 31 January 2018. The
plaintiff would have until 31 March 2018
to consider, interrogate and
agree the calculation of the current value share as presented to him
by the first defendant. The plaintiff
would be entitled to engage
with the first defendant regarding the calculation and could request
copies of any documents and information
he required to validate,
interrogate and agree the amount to be determined to be the current
value share amount.
[32]
Clause 4.4.3 reads as follows:
â
Upon
finalisation of the calculation of the Current Value Share in Rokwil,
Stainton shall issue to Le Sueur a warranty of accuracy
of such
amount to within R3 million above or below the agreed Current
Value share amount. This agreed Current Value share
will be
settled between the Parties in terms of clause 9.3, taking inter alia
taxes and efficient structuring into account.â
[33]
Clause 8 of the value share agreement deals with various properties
and interests of the first defendant,
excluded from the calculation
of the value share.
[34]
Clause 9 of the value share agreement contained various clauses aimed
at determining the manner of the
settlement of the value share.
Clauses 9.3 and 9.4 are of particular importance and the relevant
portions read as follows:
â
9.3
The various component parts of the Value Share owed by Stainton and
Rokwil (on a joint and several
basis) to Le Sueur shall be settled,
paid and discharged as follows:
9.3.1
The Current Value Share that accrues to Le Sueur as calculated in
accordance with the provisions of clause
4 above shall be settled and
paid, on the basis as contemplated in clause 9.4 below, once Le Sueur
confirms in writing that he agrees
with Staintonâs calculation of
the Current Value Shares, as contemplated in clause 4.4.2 or, if not
agreed, as otherwise determined
in terms of the provisions of the
agreement.
. . .
9.4
The Current Value Share (calculated in accordance with the provisions
of clause 4) will be
settled by means of:
9.4.1
In specie asset transfers and adjustments taking into account any
amounts due by Keystone referred to in 4.4.1
(ii) (to be agreed
between Le Sueur and Stainton), or
9.4.2
In cash; or
9.4.3
Partly by in specie asset transfers and adjustments (to be agreed
between Le Sueur and Stainton) and partly
in cash
.
Stainton and Le
Sueur will use their best respective commercial endeavours to attempt
to agree the settlement of the Value Share,
in whole or in part, by
way of in specie asset transfers and adjustments. In the event
of Le Sueur and Stainton failing to
agree upon the in specie asset
transfers and adjustments to settle the Value Share, as contemplated
above, Stainton will make payment
of the Value Share amount to Le
Sueur in cash. The following terms and conditions will apply to
the settlement of the Value
Share in cash, namely:
9.4.3.1 When
Le Sueur, at his discretion, determines that the endeavours to
attempt to agree on the settlement of Value Share
in specie as
contemplated above have failed, he shall be entitled to give Stainton
10 (ten) days written notice of his determination
in this regard;
9.4.3.2
Stainton will then, from the end of the 10 (ten) day period
referred to in clause 9.4.3.1 above, have a period
of 120 (one
hundred and twenty) days within which to pay the Value Share,
together with the accrued interest thereon as provided
for in clause
9.4.3.3 below, to Le Sueur in cash.
9.4.3.3
Interest at the prime rate charged by the Standard Bank of South
Africa, from time to time, will accrue on the full
outstanding amount
of the Value Share, calculated from the end of the 10 (ten) day
period referred to in clause 9.4.3.1 above, until
the date final
payment, both days inclusive.â
[35]
Subsequent to the signing of the value share agreement, and after
missing the deadline of 31 January
2018 as set out in clause 4.4.2,
the first defendant advised the plaintiff on 17 March 2018 that the
current value share was around
R69 million. On 19 March 2018,
the first defendant provided the plaintiff with the financial
statements pertaining to Rokwil
and Keystone Park CC and various
other documents. He did not provide a calculation of how he arrived
at the current value share as
provided for in clause 4.4.2.
[36]
During a meeting held on 23 April 2018, the first defendant presented
his calculation of the current
value share in the amount of
R69 427 122 and also provided the signed calculation and
the supporting documents referred
to in the calculation.
[37]
The plaintiff commenced with the process of reviewing the calculation
as provided for in the value share
agreement, and for such purpose
engaged the chartered accountants Mr Keith Pitout and Mr Guy McEwen,
as well as an accountant and
tax practitioner, Ms Theresa Alder. The
first defendant agreed to Mr McEwen conducting a lifestyle audit on
him. He also ensured
that his chief financial officer, Mr Oliver
Humphries (also a chartered accountant) was available to assist the
plaintiffâs team
and consented to them having access to any
documents, bank statements and accounting records required by them.
[38]
On 14 May 2018, the first defendant sent through another schedule
containing a calculation for an adjustment
of R15.113 million by
which the current value share had to be increased. On the first
defendantâs calculation the current value
share was now
R84 540 122. On 25 June 2018, Mr Humphries provided a
spreadsheet to the plaintiff in terms of which Rokwilâs
profit
during the period February 2016 and 31 October 2017 was calculated by
him and the first defendant to be R220 571 038.
[39]
Mr Pitout produced a schedule based on the documents, bank account
statements and accounting records
investigated and concluded that the
original amount of R69 427 122 calculated by the first
defendant, had to be increased
by R176 770 234.
[40]
Mr Pitout calculated the first defendantâs income in Rokwil to
which he was legitimately entitled to
be R5 628 686.
The calculations however reflected that the first defendant actually
appropriated income in Rokwil
in the amount of R182 398 919.
[41]
During October 2018, Mr Pitout prepared a revised calculation of the
current value share and arrived
at an amount of R281 579 508.
The schedule provided referred inter alia to an amount of
R63 874 799, which reflected
cash drawn out of Rokwil by or
on the instructions of the first defendant to fund his lifestyle and
came about as a result of the
lifestyle audit conducted by Mr McEwen.
[42]
Mr Pitoutâs calculations were provided to the first defendant to
enable him and Mr Humphries to review
his calculation of the current
value share. During a meeting held on 25 October 2018 the findings of
the review process were discussed
and Mr Humphries confirmed that he
was satisfied with the calculations.
[43]
On the plaintiffâs version, he and the first defendant continued
with settlement discussions in private
during which it was agreed
that the current value share would be R200 million. The plaintiff
would accept R100 million as his share,
to which the first defendant
agreed. Mr Hay was instructed to prepare a settlement agreement and
an acknowledgment of debt for the
amount of R100 million.
[44]
On 26 October 2018 a meeting was held at the offices of Rokwil. The
plaintiff, Mr Hay and Mr Jeremy Capon,
a partner at Hay & Scott
Attorneys, were present, as was the first defendant, Ms. Bartlett and
Mr Humphries. Mr Hay tabled a
draft settlement agreement and a draft
acknowledgment of debt to which certain amendments were made at the
request of the first defendant.
It is the plaintiffâs version
that the amendments were done on Ms. Bartlettâs laptop.
[45]
The first defendant considered the amended draft settlement
agreement, and draft acknowledgment of debt
and requested further
amendments. The plaintiff agreed to the amendments, made in
manuscript by the first defendant , where after
both the plaintiff
and the first defendant signed the settlement agreement and the
acknowledgment of debt, and witnessed by Mr Capon
and Mr Humphries.
The first defendant also signed the two documents on behalf of
Rokwil.
[46]
The settlement agreement that the plaintiff, the first defendant and
Rokwil entered into defines the
value share agreement in clause 1 as
the agreement concluded between the parties on 2 November 2017.
According to the preamble:
â
The
Value Share Agreement provided inter alia for the Parties to agree on
the amount owing by Stainton and Rokwil to Le Sueur in respect
of the
Current Value Share (as dealt with in clause 4 of the Agreement) and
the future Value Share that may arise from Connected
Transactions (as
dealt with inter alia in clause 5 of the Agreement)â.
It
also recorded that the parties had reached agreement on the amount
owing by âStainton and Rokwil to Le Sueurâ.
[47]
In terms of clause 3.1 the parties had agreed that the amount owing
by the first defendant and Rokwil
to the plaintiff in respect of the
current value and the future value share was R100 million. Clause
3.3, which was amended in manuscript,
reads as follows:
â
The
amount recorded in clause 3.1 â¦, above is the total agreed amount
payable by Stainton and Rokwil to Le Sueur in all respects
of the
Current Value and the future Value Share which is agreed on a full
and final basis.â
[48]
It was agreed in clause 4 that the first defendant and Rokwil will
âsimultaneously with the conclusion
of this agreement conclude the
Acknowledgment of Debt (as attached hereto marked âAâ) in favour
of Le Sueur.â
[49]
Clause 5.2 is of particular importance and reads as follows:
â
Each
party acknowledges that it has been free to secure independent legal
and other advice as to the nature and effect of all
the
provisions of this Agreement and that it has either taken such
independent legal or other advice or dispensed with the necessity
of
doing so.â
[50]
Clause 7.2 reiterated what was contained in clause 5.2 but went
slightly further. It reads as follows:
â
.
. . the Parties acknowledge, declare and agree that they have had
sufficient time and opportunity to seek independent legal and
other
professional advice with respect to the terms of this Agreement, that
they understand the terms of this Agreement and voluntarily
enter
into this Agreement for the purpose of making full and final
settlement of the Current Value Share and future Value Share,
as
provide for in the Value Share Agreement, without any threats or
coercion.â
[51]
The acknowledgment of debt was annexed as annexure âAâ to the
settlement agreement. In terms of clause
2, under the heading
âUndertaking to settle debtâ the payment of the capital sum of R
100 million together with interest by means
of a âpayment planâ
is set out. In terms of clause 2.1, the debtor (the first defendant
and Rokwil, jointly and severally
in
soldium
) âshall make a written
proposal to the Creditor (plaintiff) within 120 calendar days of the
date of signature of this agreement
setting out in detail the manner
in which the capital sum shall be secured and settled â¦â.
The time period of 120 calendar
days was written in manuscript to
replace the original typed time period of 5 days in accordance with
what the first defendant requested
at the time of the negotiation and
signature of the two documents. It is the plaintiffâs version that
the first defendant remarked
that the acknowledgement of debt was a
liquid document and he wanted sufficient time to comply. He was
clearly aware of the legal
consequences of the documents he was
signing.
[52]
The remainder of clause 2.1 dealt with the details of what was to be
contained in the written proposal,
referred to as âthe Settlement
Planâ, such as the dates on which the proposed payments would be
made and details of any proposed
means of settling the capital sum.
[53]
Clause 2.2 made provision for the signing of a settlement plan in the
event of the creditor being satisfied
with the terms thereof.
Clause 2.3 dealt with the eventuality that should the creditor not be
satisfied with the settlement
plan or if the settlement plan was not
provided within the period of 120 calendar days. In that event, the
creditor âmay institute
any legal proceedings for the recovery of
the Capital Sum which the creditor is his sole and absolute
discretion may determine appropriate.â
(sic)
[54]
Clause 4 dealt with failure to comply with clause 2 and provided as
follows:
ââ¦
..
we hereby jointly and severally irrevocably undertake to sign all the
necessary documents, including without limitation all required
affidavits and resolutions required in order to consent to judgment
being granted in favour of the creditor for the full Capital
Sum (or
if any payments have been made with the reduction of such amount, the
balance thereof) plus legal costs on the attorney and
own client
scale, to be taxed or agreed.â
[55]
In terms of clause 6, a certificate signed by the creditor
(plaintiff) setting forth the amount of indebtedness,
that the debt
is due and payable, the interest payable on the debt and the
date from which such interest is recorded, âshall
constitute prima
facie proof of the facts herein stated and shall be binding on us for
all purposes.â
[56]
The debtor also renounced the benefits of, inter alia,
â
errore
calculi
â by renouncing this benefit
we are precluded from raising the defence that there have been errors
in calculation upon which the
claim is basedâ,
and
â
revision
of accounts â by renouncing this benefit we are precluded from
raising the defence that the accounting documents upon which
the
Creditorâs claim is based should be revised.â
[57]
On the plaintiffâs version, Ms Bartlett was present at the meeting
of 26 October 2018 although she
left the meeting at times, re-joining
after a short while.
[58]
On 28 January 2019, Mr Hay addressed an
e-mail to the first defendant to remind him that in terms of clause
2.1 of the acknowledgment
of debt, he had until 23 February 2019 to
make a written proposal, setting out the manner in which the sum of
R100 million was to
be settled.
[59]
On 22 February 2019 the first defendant sent his proposed payment
plan to the plaintiff. The plaintiff
rejected the proposals and
demanded payment of R100 million by 8 March 2019. Payment was not
made and subsequently summons was issued
on 25 March 2019 and served
on the first defendant and Rokwil on the same day.
[60]
The first defendant requested a meeting with the plaintiff and Mr Hay
in order to discuss âpossible
asset transfers so we can bring the
matter to a close as soon as possible.â The first defendant was
however requested to make proposals
in writing and was reminded that
settlement of the amount owing must be made in cash or by way of
agreed asset transfers.
[61]
In an email dated 1 April 2019, the first defendant set out certain
proposals and concluded by saying
that the settling of the matter âis
of paramount importance to meâ. He again requested a meeting
to resolve the matter.
The plaintiff was willing to meet to discuss
settlement on a without prejudice basis. In an e-mail dated 2 April
2019 sent to the
first defendant, Mr Hay said the following:
â
Rob
is prepared to meet with you tomorrow morning to discuss the
proposals advanced by you on a without prejudice basis. However,
a
precondition to confirm such meeting is that you confirm your
willingness to sign the Confessions to Judgment (in both your
personal
capacity and in your capacity as director of Rokwil Civils
(Pty) Limited).â
The
first defendant confirmed the content and conditions via email in
response to Mr Hay.
[62]
The first defendant was also informed by Mr Hay in another email on
the same day that such confessions
to judgment would be held by him
and will only be lodged at court should the without prejudice
negotiations fail.
[63]
A meeting was held on 3 April 2019, which the first defendant
attended together with the plaintiff, Mr
Pitout, Mr Hay and Mr Capon.
The first defendant signed a confession to judgment in his personal
capacity as well as in in his representative
capacity on behalf of
Rokwil. He also deposed to two affidavits, verifying his signature,
in his personal capacity and on behalf
of Rokwil, at the offices of
Grant & Swanepoel Attorneys. A resolution by the directors of
Rokwil accompanied the confession
to judgment on behalf of Rokwil.
[64]
Between 3 April 2019 and February 2020, negotiations took place
between the parties. The first defendant
instructed his current
attorney of record, Mr Mike Pedersen, to act on his behalf. In an
email dated 21 February 2020, Mr Hay wrote
to Mr Pedersen, as well as
to the first defendant and Ms. Bartlett, with a suggestion that the
original agreement be adjusted to
provide that the date of payment be
moved to 2 March 2020 and that the debt will be owed instead to the
Crown Eagle Trust. This was
apparently as a result of tax advice
received by the plaintiff and also as a result of the fact that â
Rod
has not discharged his obligation to pay the amount due in terms of
the AOD
â.
[65]
In an email dated 27 February 2020, Mr Pedersen informed Mr Hay that
the first defendant could not agree
to extend the payment date until
2 March 2020, as it âmay constitute reckless trading bearing in
mind transactions and commits.â
A suggestion was made that a
reasonable extension would be to the end of October 2020. Attached to
the letter was an addendum to
the settlement agreement, already
signed by the first defendant and Rokwil, in terms of which Stainton
and Rokwil Civils would settle
the outstanding balance owing to the
plaintiff in terms of the agreement by no later than 31 October
2020. It was also indicated
that in all other respects the agreements
would remain the same.
[66]
The plaintiff did not sign the addendum and the next day the
application in terms of Uniform
Rule 31(1)
(c)
was filed.
[67]
As mentioned above the first defendant filed two affidavits and
raised various defences to the plaintiffâs
claim. At the hearing of
the matter, counsel for the defendants, Mr Broster SC, indicated that
the defendants would only be pursuing
the defences addressed in his
heads of argument namely, economic duress, non-compliance with
section 112 of the Companies Act 71
of 2008 (the Companies Act) and
non-compliance with section 40(1) of the National Credit Act 34 of
2005 (the NCA). These issues need
to be considered in conjunction
with the issues listed in the draft order accompanying the
application filed by the defendants for
a referral to oral evidence.
[68]
Much was made by the plaintiff of the apparent contrast between what
was contained in the first affidavit
and the second supplementary
affidavit. In the first affidavit, the first defendant sets out in
more detail what occurred between
the signature of the settlement
agreement and the acknowledgment of debt on the one hand and the
signing of the confession to judgment
on the other hand and inter
alia refers to on-going efforts to pay the amount due to the
plaintiff.
[69]
In the supplementary affidavit the tone changes somewhat and the
first defendant alleges that the plaintiff
became more and more
insistent that he wanted money from Rokwil âin a form which he and
attorney Paul Hay defined as a âvalue
shareââ. He also alleged
that the final construction and its description in the value share
agreement were entirely the work
of Mr Hay and the plaintiff and that
Mr Hay âis the draftsman of all the agreements annexed to these
papers and many othersâ.
The first defendant also alleges that he
did not seek legal advice as he did not want to âexacerbate an
already deteriorating and
volatile relationshipâ with the
plaintiff, and that he signed the value share agreement without
seeking legal advice and did not
share its existence with anyone. The
first defendant also alleges that the plaintiff hired a team of
accountants who spent many months
pouring over the financial affairs
of Rokwil as well as his own, for the purpose of computing the net
asset value of Rokwil as he
did not have time to conduct the
exercise. He also claims that he attended a meeting on 6 April 2019
where he signed the confessions
to judgement as the plaintiff was in
a position to apply for default judgement against him.
[70]
Bearing in mind what is set out above, it is clear that there are
various contradictions between what
the first defendant alleges in
his supplementary affidavit and what is stated by the plaintiff and
more importantly, what is borne
out by the volumes of documents
attached to these application papers. The first defendant has
furthermore chosen not to attach any
confirmatory affidavits by his
legal manager, Ms Bennett, or his chief financial officer, Mr
Humphries.
[71]
I will now turn to the legal principles and the defences raised by
the first defendant in his affidavit.
The
setting aside of a confession to judgment
[72]
In terms of Uniform Rule 30(1)
(b)
the confession to judgment should be signed by the defendant
personally and the defendantâs signature shall be witnessed by an
attorney acting for the defendant or shall be verified by affidavit.
The first defendant initially raised an issue regarding the
validity
of the confessions but his counsel, quite rightly, did not pursue the
matter in argument before me. The confessions by the
first defendant
and Rokwil are clearly properly executed.
[73]
It was held in
Moshal
Gevisser (Trademarket) Ltd v Midlands Paraffin Co
.
[1]
that a defendant is not entitled to withdraw a confession but it can
be avoided on the ground of a mistake. Such a case would be
approached on the same lines and judged according to the same
principles as cases where a party may resile from an agreement based
on the ground of
justus
error
.
[2]
[74]
A judgment can also be set aside in terms of the common law on the
grounds of fraud,
justus
error,
in
certain exceptional circumstances where new documents are discovered,
where judgments had been granted by default, and in the absence
between the parties of a valid agreement to support the judgment, on
the grounds of
iusta
causa
.
It may also be set aside in terms of Uniform Rule 42, if
applicable.
[3]
Economic
duress
[75]
As mentioned above, the defendants raise a defence of economic
duress. The basis of their defence is
that the value share agreement
was induced by economic duress and consequently falls to be set aside
and declared to be unenforceable.
Counsel for the defendants quite
rightly submitted that there was a lack of authority justifying the
setting aside of a confession
to judgment based on a defence of
economic duress.
[76]
In
Amlerâs
the author states as follows:
[4]
â
The
party relying on duress must allege and prove
(a)
a threat of considerable evil;
(b)
that the fear was reasonable;
(c)
that the threat was of an imminent or inevitable evil and induced
fear;
(d)
that the threat was unlawful or
contra bonos mores
;
(e)
that the contract was concluded because of the duress.â
[77]
Christieâs
[5]
references the fact that English Law, in recent years, has come to
recognise âeconomic duressâ and that â[it] would be beneficial
to our law . . . to go beyond duress of goods and follow English law
in recognising âeconomic duressââ as it could be âequally
unconscionableâ.
[78]
The defendantsâ counsel referred me to
Medscheme
Holdings (Pty) Ltd and another v Bhamjee
where the following was held:
[6]
â
English
and American law
both recognise that
economic pressure may, in appropriate cases, constitute duress that
allows for the avoidance of a contract. As
pointed out by Van den
Heever AJ in
Van den Berg & Kie
Rekenkundige Beamptes v Boomprops 1028 BK
1999 (1) SA 780
(T), that principle has yet to be authoritatively
accepted in our law. While there would seem to be no principled
reason why the
threat of economic ruin should not, in appropriate
cases, be recognised as duress, such cases are likely to be rare.
(The point is
underlined by the dearth of English cases in which
economic duress was found to have existed.) For it is not unlawful,
in general,
to cause economic harm, or even to cause economic ruin,
to another, nor can it generally be unconscionable to do so in a
competitive
economy. In commercial bargaining the exercise of free
will (if that can ever exist in any pure form of the term) is always
fettered
to some degree by the expectation of gain or the fear of
loss. I agree with Van den Heever AJ (in
Van
den Berg & Kie Rekenkundige Beamptes
at 795E - 796A) that hard bargaining is not the equivalent of duress,
and that is so even where the bargain is the product of an
imbalance
in bargaining power. Something more - which is absent in this case -
would need to exist for economic bargaining to be
illegitimate or
unconscionable and thus to constitute duress.â (my emphasis,
footnote omitted)
Section
112
of the
Companies Act
[79
]
The first defendant alleged in his supplementary affidavit that he
had been unaware of the provisions of
section 112
of the Companies
Act, and that he had failed to obtain legal advice, prior to signing
the value share agreement. He only became aware
of
section 112
of the
Companies Act whilst
the supplementary affidavit was being drafted.
This was the only reference to
section 112
of the
Companies Act by
the first defendant.
[80]
The relevant provisions of the
Companies Act read
as follows:
â
112
Proposals to dispose of all or greater part of assets or undertaking.
â (1) â¦
(2)
A company may not dispose of all or the greater part of its assets or
undertaking unlessâ
(a)
the disposal
has been approved by a special resolution of the shareholders, in
accordance with
section 115;
and
(b)
. . .
(3)
â¦.
(4)
Any part of the undertaking or assets of a company to be disposed of,
as contemplated in this section,
must
be fairly valued, as calculated in the prescribed manner, as at the
date of the proposal, which date must be
determined in the
prescribed manner.
(5)
â¦.â
The
definitions section sets out the following, which is relevant to
section 112:
â
1.
Definitions
. â In this Act, unless
the context indicates otherwiseâ
â
all
or the greater part of the assets or undertakingâ,
when
used in respect of a company, means â
(a)
in the case of the companyâs assets, more than 50% of its gross
assets fairly valued, irrespective of its liabilities; or
(b)
in the case of the companyâs undertaking, more than 50% of the
value of its entire undertaking, fairly valuedâ.
[81]
The plaintiff accepted that Rokwilâs shareholders did not approve
the conclusion of the value share
agreement.
[82]
Both counsel for the plaintiff, Mr Lotz SC, and for the defendants,
Mr Broster SC, made extensive submissions
in their supplementary
heads of argument on the various issues to be considered regarding
section 112
of the
Companies Act. Particularly
both counsel dealt
with the meaning of the words âdispose ofâ and âdisposalâ,
the question being whether the value share
agreement,properly
interpreted, amounts to a disposal of more than 50% of Rokwilâs
gross assets, fairly valued, and accordingly
falls within the ambit
of
section 112.
[83]
The
Oxford
English Dictionary
[7]
defines
âdisposeâ as âget rid ofâ and âdisposalâ as âthe action
or process of disposing. The sale of assets.â
[84]
The
Cambridge
Dictionary
[8]
defines âdisposalâ as âthe act or process of getting rid of
somethingâ.
[85]
The Afrikaans text of
section 112(2)
of the
Companies Act uses
the
words âvervreemâ and âvervreemdingâ. Counsel for the
plaintiff referred to
Crous
N.O. v Utilitas Belville
,
[9]
the court said the following regarding the meaning of âvervreemâ:
ââ
Vervreemâ
beteken volgens Bosman Tweetalige Woordeboek, âdispose ofâ, wat
weer volgens die Concise Oxford Dictionary âget
rid of, sellâ
beteken.
Volgens
HAT
beteken
dit âverkoop, in ander hande bring, oordraâ.
Sande
Treatise
on Restraints
1.3.16
(Webber
se vertaling)
definieer âalienationâ byvoorbeeld as âany course of
dealing by which
dominum
is transferredâ.
Met
inagneming van bostaande uitsprakereg en woordeboek-definisies, sou
dit na my mening korrek wees om te sê dat die algemeen-aanvaarde
of
gewone betekenis van âvervreemâ (âalienateâ op Engels) 'n
vrywillige en âwillekeurigeâ oordrag van eiendomsreg
van 'n
saak deur die eienaar daarvan na 'n nuwe eienaar impliseer.â
[86]
Both counsel referred me to S
tandard
Bank of South Africa Limited v Hunkydory Investments 188 (Pty) Ltd
and others (No 2)
[10]
where the court dealt with
section 112âs
predecessor in the 1973
Companies Act, namely
section 228
, which also used the words
âdisposeâ and âdisposalâ, and in particular the range of
transactions encompassed by the phrase
âdispose ofâ. The question
the court had to consider was whether the registration of a mortgage
bond over a companyâs main
asset constituted an act whereby the
company âdisposes ofâ the whole or greater part of its
assets.
[11]
[87]
Rodgers AJ, with reference to
Kinloch
NO and another v Kinloch
,
[12]
further held that the ordinary meaning of âdispose ofâ is âto
make over or part with by way of sale or bargain, sellâ, âto
transfer into new hands or to the control of someone else (as by
selling or bargaining away)â.
[88]
Henochsberg
[13]
refers to the meaning of âdisposeâ and concludes that âthe only
disposal to which it is intended to refer is one which would
have the
effect of permanently depriving the company of its right to ownership
of the assets involved.â
[89]
When it comes to the process of attributing meaning to words used in
legislation it is important to ensure
that a sensible meaning is
given to a word or phrase instead of a meaning that could lead to
âinsensible or unbusinesslike results
or undermines the apparent
purpose of the documentâ.
[14]
Section
40(1)
of the
National Credit Act
[90
]
The heads of argument filed on behalf of the defendants raise for the
first time that the plaintiff, at
the time of conclusion of the
acknowledgment of debt, was not registered as a credit provider in
terms of
section 40(1)
of the NCA.
[91]
The definition of credit provider in
section 1
of the NCA lists a
number of descriptions but the only one applicable is found in
sub-para
(h)
namely âthe party who advances money or credit
to another under any other credit agreementâ. Counsel on behalf the
defendants
also referred me to
section 8
of the NCA which dealt with
the different categories of credit agreements and submitted that
section 8(4)
(f)
was relevant to the present matter. It reads
as follows:
â
(4)
an agreement, irrespective of its form but not including an agreement
contemplated in subsection (2), constitutes a credit transaction
if
it is â
â¦
.
(f)
any other agreement, other than a credit facility
or credit guarantee, in terms of which payment of an amount owed by
one person to
another is deferred, and any charge, fee or interest is
payable to the credit provider in respect ofâ
(i)
the agreement; or
(ii)
the amount that has been
deferred.â
[92]
On behalf of the defendants, it was submitted that the value share
agreement, the settlement agreement
and the acknowledgment of debt
signed by the defendants, provided for the granting of credit by the
plaintiff to the first defendant
in the amount of R100 million. It
was submitted that the reach of the NCA was very wide and covered the
transactions under consideration,
especially with regards to part
(a)
of the definition of credit in
section 1
, which reads as follows: âa
deferral of payment of money owed to a person, or a promise to defer
such a payment.â
[93]
Counsel for the defendants placed reliance on
Du
Bruyn NO and others v Karsten
[15]
where the following was held:
â
The
legislature has set thresholds that trigger the obligation to
register where a single transaction is in excess of the prescribed
amount. To conclude that this does not apply to once-off
transactions, or to those who are not regular participants in the
credit
market, is, however attractive and sensible it may sound, not
being true to the text and the context of the statute. As stated in
Potgieter
,
to find otherwise would be to substitute what is justifiably seen as
regulatory overreach with judicial overreach. Lamenting the
dismal
drafting of the NCA, the Constitutional Court suggested that we
accept the words of the provision of the statute, acknowledge
the
drafting error and leave it to Parliament to correct.â
[16]
(footnotes omitted)
It
was submitted that the value share agreement, the settlement
agreement and the acknowledgment of debt exceeded the current
threshold
in terms of
section 40(1)
of the NCA (set at nil) by R100
million and are therefore null and void. The facts in De Bruyn
however differ substantially from
those in the present matter.
[94]
Counsel for the plaintiff relied on
Hattingh
v Hattingh
[17]
where the court had to consider whether a settlement agreement was
subject to the provisions of the NCA. The following was said:
â
[25]
Na my mening blyk die aard en substansie van die kontrak gesluit
tussen die partye te wees 'n ooreenkoms wat die verhouding tussen
die
partye reguleer, voortspruitend uit die besluit van die partye om die
besigheid en sake wat hulle vir 'die afgelope paar dekades'
in
samewerking met mekaar gedoen het, te beëindig op die basis soos
uiteengesit in die kontrak. Hier is nie sprake van 'n
kredietverskaffer-/verbruiker-
verhouding soos waarmee die Nasionale
Kredietwet duidelik mee handel nie. Wanneer dit en dus die bedoeling
van die partye tot die
kontrak in ag geneem word teen die agtergrond
van die doelstellings van die Nasionale Kredietwet en die Nasionale
Kredietwet ooreenkomstig
sodanige doelstellings geïnterpreteer word
soos vereis in art 2 van die Wet, meen ek dat dit nie die bedoeling
van die wetgewer
kon wees dat 'n kontrak soos die onderhawige geag
moet word 'n kredietooreenkoms te wees nie. Hoewel eiser, op
sigwaarde van die
Nasionale Kredietwet, voldoen aan die definisie van
'n 'credit provider' soos vervat in art 1 daarvan, is ek van mening
dat wanneer
die doel van die Wet in ag geneem word, saamgelees met
die totale konteks van die Wet, dit sekerlik nie die bedoeling kon
wees dat
die eiser in 'n geval soos die onderhawige geag moet word 'n
kredietverskaffer te wees met die gepaardgaande verpligtinge soos
bedoel
in die Wet nie. Soos deur mnr De Bruin betoog, sal dit die
absurditeit tot gevolg hê dat wanneer 'n getroude paar getroud in
gemeenskap
van goedere skei en 'n akte van dading sluit met
betrekking tot die verdeling van die gemeenskaplike boedel, en die
een eggenoot
aan die ander uitstel verleen vir die betaling van wat
hy voortspruitend daaruit skuld by wyse van paaiemente en onderworpe
aan die
betaling van rente en regskoste, geag sal moet word 'n
kredietooreenkoms te wees in terme waarvan die eiser daarin as 'n
kredietverskaffer
sal moet registreer indien dit 'n sekere bedrag te
bowe gaan.
[26]
By 'n behoorlike uitleg van die Nasionale Kredietwet is ek oortuig
dat die verhouding wat tussen die partye in die onderhawige
geval by
wyse van die kontrak gereël word, nie geag kan word 'n verhouding te
wees wat deur die doelstellings van die Wet getref
word nie.
.
. .
[30]
Gevolglik is ek van mening dat die kontrak wat in die onderhawige
geval die skuldoorsaak daarstel,
nie 'n kredietooreenkoms is soos
bedoel in die Nasionale Kredietwet nie . . .â
The
facts of this particular matter will be mentioned below and are very
similar to the present matter.
[95]
I was also referred to
Grainco
(Pty) Limited v Broodryk NO en andere
[18]
where the plaintiff inter alia relied on a written acknowledgment of
debt which provided for the payment of a capital sum in instalments
and subject to interest. The defendants averred that the
acknowledgment of debt was a credit agreement as contemplated in
s
8(4)
(f)
of the NCA. The court held that the acknowledgment of debt was not
subject to the NCA as the underlying cause of the acknowledgment
was
not a money lending transaction, but a damages claim in respect of
which the plaintiff agreed to defer payment of such damages
by the
defendants. The defence was dismissed.
[19]
[96]
I was lastly referred to
Ratlou
v MAN Financial Services SA (Pty) Ltd
[20]
where the court also dealt with a settlement agreement concluded
between parties and where the defence was raised that the settlement
agreement was subject to the provisions of the NCA. The court found
that if the underlying
causa
did
not fall within the parameters of the NCA, then its compromise in
terms of the settlement agreement cannot result in the agreement
being converted in one that does.
[21]
The following was said:
[22]
â
[21]
A purposive interpretation and not a literal interpretation of
s
8(4)
(f)
of
the NCA is required because it is quite clear that the NCA was not
aimed at settlement agreements. Its application to them will
have a
devastating effect on the efficacy and the willingness of parties to
conclude settlement agreements and thereby curtail litigation.
.
. .
[23]
The purposes of the NCA are set out in
s 3
of that Act. Section 2
thereof provides that the NCA must be interpreted in a manner that
gives effect to such purposes. Under s
3 the purposes of the Act are
'to promote and advance the social and economic welfare of South
Africans, to promote fair, transparent,
competitive, sustainable,
responsible, efficient, effective and accessible credit market and
industry, and to protect consumers'.
Therefore the NCA is concerned
with the advancement of money or granting of credit, in the main, to
individual consumers.â
[97]
Ratlou
discussed
Hattingh
,
and
Grainco
,
supra:
[23]
â
[24]
MAN's reliance on three cases, in which our courts have used the
purposive approach in determining whether the NCA was applicable
to
settlement agreements, is well placed. In
Grainco
(Pty) Ltd v Broodryk NO and Others
the
court found that, although the settlement agreement referred to
deferral of payment and interest, the agreement did not constitute
a
credit transaction because the underlying transaction was a damages
claim in respect of which the plaintiff, by agreement, afforded
the
first, second and third defendants deferment of payment. It was held
that the transaction did not fall within the business of
moneylending
and the furnishing of credit, in the ordinary sense of the word. The
NCA was not intended to encompass an underlying
causa of the
postponement of payment of damages.
[25]
In
Hattingh v Hattingh
a settlement agreement in which two brothers terminated their
business relationship and provided for payment of R6,6 million in
annual
instalments of R734 000,00, together with interest on the
capital, was found not to fall within the ambit of the NCA. The court
found
specifically that there had been no credit provider-consumer
relationship. This and the parties' intention viewed against the
background
of the objects of the NCA showed that it could not have
been the intention of the legislature that an agreement such as the
impugned
agreement should be regarded as a credit agreement. Although
the one brother, prima facie, fell within the definition of a credit
provider as intended in the NCA, it could not â given the purpose
and the context of the NCA â have been the intention of the
legislature that the brother would be regarded as a credit provider
subject to the obligations imposed by the NCA.â
(footnotes
omitted)
[98]
It is also important to take note of the provisions of section
4(1)
(a)
(i)
of the NCA which state that the NCA does not apply to credit
agreements of which the consumer is a juristic person, whose asset
value or annual turnover at the time the agreement is made, exceeds
R1 million. This would apply to Rokwil, in the event of it being
found that the NCA applied to the agreements between the plaintiff
and defendants.
Referral
to oral evidence
[99]
As mentioned above, the defendants filed an application for referral
to oral evidence and it is perhaps
appropriate to, at this stage,
briefly deal with the relevant applicable principles.
[100]
In terms of Uniform Rule 6(5)
(g)
:
â
Where
an application cannot properly be decided on affidavit the court may.
. .direct that oral evidence be heard on specified issues
with a view
to resolving any dispute of fact. . .â
[101]
Counsel for the defendants referred me to
Manuel
v Sahara Computers (Pty) Ltd and another
[24]
where Weiner J held:
â
This
subrule does not only apply where there is a true dispute of fact on
the papers. It also applies in circumstances where one party
casts
doubt on the relevant allegations of another. Although not
contradicted by direct evidence, those averments are thus in dispute,
and 'cannot properly be decided on affidavit' in terms of the
subrule.â
(footnotes omitted)
[102]
It was submitted by the defendantsâ counsel that apart from the
material disputes of fact there is also reason
to doubt the
allegations âmade by Le Sueur and Staintonâ, which ought to be
referred for oral evidence.
[103]
Counsel for the plaintiff referred me to
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
[25]
where, as succinctly set out in
Erasmus
,
the court made it clear that â[a] party will, however, not be
allowed to lead oral evidence to make out a case which is not already
made out in his affidavitsâ.
[26]
[104]
It was submitted on behalf of the plaintiff that the defendants have,
under the guise of a substantive application
for referral to oral
evidence, attempted to amplify their answering affidavit, introduce
new issues and create disputes of fact â
which they should have
done in their answering affidavit, but did not do.
[105]
In
D & F Wevell Trust
, supra, Cloete JA cautioned that
â
a
court should be astute to prevent an abuse of its process by an
unscrupulous litigant intent only on delay or a litigant intent
on a
fishing expedition to ascertain whether there might be a defence
without there being any credible reason to believe that there
is one.
But there will be cases where such a course is necessary to prevent
an injustice being done to the respondent.â
[27]
[106]
In
Fakie
NO v CCII Systems (Pty) Ltd
[28]
the court said the following:
â
More
than 60 years ago, this Court determined that a Judge should not
allow a respondent to raise 'fictitious' disputes of fact to
delay
the hearing of the matter or to deny the applicant its order. There
had to be 'a bona fide dispute of fact on a material matter'.
This
means that an uncreditworthy denial, or a palpably implausible
version, can be rejected out of hand, without recourse to oral
evidence. In
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
, this
Court extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real, genuine
or
bona fide dispute of fact but also allegations or denials that are so
far-fetched or clearly untenable that the Court is justified
in
rejecting them merely on the papers.â (footnotes omitted)
[107]
I will deal with the particular issues listed for referral by the
defendants in the discussion below.
Discussion
[108]
As far as defendantsâ defence of economic duress is concerned, it
is quite clear that it was not specifically
pleaded in the first
defendantâs affidavit nor in his supplementary affidavit. It is
listed as one of the issues the first defendant
now wants to be
referred for the hearing of oral evidence.
[109]
In his affidavit filed in support of the application for referral to
oral evidence, the first defendant for the
first time, under oath,
addresses the issue of economic duress. He places great
reliance on the email dated 28 July 2016, referred
to above in
detail. He claims that it is an example of how the plaintiff
controlled him and âexercisedâ economic duress in their
dealings,
and that it was written at a time when plaintiff was pressing for the
conclusion of the value share agreement on the one
hand, and funds
had to come from Nedbank to pay for work done at Keystone Park on the
other hand. The first defendant stated the
following:
â
The
duress consisted of this â if I did not agree to what he proposed
at that time which, on the second page of the letter appears
to be a
50/50 partnership in Rokwil because we were already equal partners in
Keystone, he was not going to sign a drawdown from
the bank facility
with Nedbank in favour of Rokwil.â
[110]
The first defendant also states that if the plaintiff had given
effect to his âthreatâ Rokwil would have been
in liquidation. The
first defendant later concedes that very little of what he stated
regarding the email of 28 July 2016 âcan
be extracted from the
letter itself because it is deliberately worded and written in
elliptical fashion. Shorn of its verbiage it
contained an extremely
serious financial threat that could only be avoided by my
capitulation.â
[111]
Counsel for the defendants submitted that this type of threat is
common in the building and construction industry
and would amount to
economic duress. It was also submitted that the plaintiff was wealthy
and could simply walk away whereas
the first defendantâs
livelihood depended on the success of Keystone Park and Rokwil.
[112]
The first defendant however fails to explain, and perhaps lost sight
of the fact that the value share agreement
and all the negotiations
surrounding it, only commenced during a meeting held on 29 August
2017 where after the first defendantâs
legal manager, Ms Bartlett
produced the first draft of the value share agreement. If the
plaintiff had in fact threatened the first
defendant and subjected
him to duress, one would have expected the value share agreement to
have seen the light shortly after the
perceived threat contained in
the letter of 28 July 2016, not some thirteen months later. One would
also not have expected the plaintiff,
who is portrayed as being in
control and demanding and making serious financial threats, to
patiently negotiate the value share
agreement over some two months
and eleven drafts, and the settlement agreement over a further eleven
months with the first defendant,
his legal manager and chief
financial officer.
There
was also a hint in the papers that the first defendant was âforcedâ
to sign the confessions to judgement as the plaintiff
was in a
position to apply for default judgment. This is however clearly
incorrect as at the time of the meeting, the dies had not
yet
expired. The settlement agreement in clause 4 also clearly makes
provision for the signing of such confessions.
[113]
The first defendant wants the conduct of the plaintiff in concluding
the value share agreement, the acknowledgment
of debt and requiring
the signature of the confessions to judgment, which he alleges
amounts to duress, to be referred for oral evidence.
He also wants
the proper interpretation of the letter of 28 July 2016, which
contains the alleged threat, to be referred for oral
evidence.
[114]
The first defendant has cited no other examples of this alleged
threat of economic duress other than what is contained
in the letter
of 28 July 2016. The defendantsâ counsel could point me to no other
evidence of such duress and no other correspondence
was referred to.
The first defendant presented no evidence of the exact circumstances
under which he signed the various agreements
and consents to judgment
which would lead one to conclude that he was subjected to duress. I
would have expected at least affidavits
from Ms Bartlett and Mr
Humphries to confirm the various allegations made by the first
defendant, but none were forthcoming.
[115]
As mentioned above, the first defendant has not referred to the
defence of economic duress in his two affidavits
filed in the Uniform
Rule 31(1)
(c)
application, and is now trying to make out a case in the application
for referral to oral evidence. This is not permitted, as clearly
stated in
D & F Wevell Trust
,
supra.
[116]
Even if the first defendant had included the relevant
allegations in his initial affidavits, it is my
view,
based on the affidavits, documents and correspondence, that he has
not come close to making out a case for a defence of economic
duress,
especially seen against the particular facts as set out above. Whilst
I agree that the threat of economic ruin should be
recognised as
duress in appropriate cases, this is not one of them. The plaintiff
clearly drove a hard bargain and I agree with the
authorities
referred to above that it is not equivalent to duress.
[117]
As mentioned above, the first defendant alleged in his supplementary
affidavit that he had been unaware of the provisions
of
section 112
of the
Companies Act and
that he has not complied with its provisions
before signing the value share agreement. He also alleged that he had
failed to seek
legal advice before signing the value share agreement.
This is clearly incorrect as the correspondence annexed to the papers
before
me clearly points to the involvement of Ms Bartlett, the first
defendantâs legal manager, right from the outset.
[118]
The question that needs to be answered is simple â is
section 112
of the
Companies Act applicable
to the value share agreement?
[119]
It is the plaintiffâs case that the value share agreement and in
particular the obligations agreed to by Rokwil
in the value share
agreement, do not constitute a disposal of all or the greater part of
the assets of Rokwil as contemplated in
section 112
of the
Companies
Act.
[120
]
The relevant clauses of the value share agreement were dealt with in
detail above. Clause 9 in particular sets out the
manner in which the
value share, once calculated, would be settled. Clause 9.4 refers
specifically to settlement by way of in specie
asset transfers and
adjustments, cash or partly in specie transfers and adjustments and
partly in cash. No reference is made to Rokwilâs
assets or
undertaking or that the value share will be settled by Rokwil.
Importantly, it was agreed that in the event of the
plaintiff and the
first defendant failing to agree upon the asset transfers and
adjustments to settle the value share, âStainton
will make payment
of the value share amount to Le Sueur in cashâ. Clause 9.4.3.2 of
the value share agreement also makes it clear
that the first
defendant would have a period of 120 days to pay the value share
together with interest, in cash to the plaintiff.
[121]
Counsel for the plaintiff, in his supplementary heads of argument,
submitted that properly interpreted, the value
share agreement does
no more than to identify the value share created in Rokwil up to 31
October 2017, and provide for the manner
in which the current value
share was to be calculated or quantified, and to determine the manner
in which the current value share
would be settled. It was also
submitted that the value share agreement did not contain or specify
any quantification, specification
or any detail whatsoever of the
amount to be paid by the defendants, jointly and severally to the
plaintiff, nor did it contain any
specification or detail of any of
Rokwilâs assets to be transferred to the plaintiff.
[122]
Counsel for the defendants, in his supplementary heads of argument,
concentrated on whether there has been a disposal
of Rokwilâs net
assets and in particular the valuation of Rokwilâs net asset value
and the determination of the current value
share. It was submitted in
particular that the net effect of the value share agreement is that
from 2012 onwards, the first defendant
is obliged to disgorge 50% of
the value share of Rokwil while remaining liable for all the
liabilities of the company and the losses
incurred by it. It is
further submitted that the effect of the value share agreement should
be characterised as a disposal of more
than the greater part of
Rokwilâs undertaking and there ought to have been compliance with
section 112
of the
Companies Act.
[123
]
Bearing in mind the facts set out above, I am of the view, and agree
with the plaintiffâs submissions that what was
agreed upon in the
value share agreement does not amount to a disposal of all or the
greater part of Rokwilâs assets, especially
with reference to what
was stated in
Henochsberg
,
supra, and the other authorities referred to above. I can find
nothing in the relevant clauses which could be interpreted as having
the effect of a disposal as envisaged by
section 112
of the
Companies
Act. To
do so would lead to an insensible or unbusinesslike
result, as warned against in
Natal Joint
Municipal Pension Fund
, supra.
[124]
As far as the submissions regarding the calculation of Rokwilâs net
asset value is concerned, it was submitted
on behalf of the
defendants, with reference to
section 112(4)
of the
Companies Act,
that
the audited financial statements compiled by its auditors,
Victor Fernandes and Company, should stand. It was also submitted
that
the figures were comparatively low in comparison to the figures
produced by Mr Pitout, and that the court was faced with a huge
disparity
which would necessitate evidence from auditors and valuers
to assess the fair value of Rokwilâs assets at the date of the
value
share agreement.
[125]
In my view it is clear that the defendants have perhaps lost sight of
the fact that although Rokwilâs auditors
valued its net asset value
at around R10 million, the first defendant himself, calculated the
current value share at around R69 million,
which he adjusted to R84
million shortly thereafter. There is however clearly a difference
between what is meant by net asset value
and current value share. The
value share is the value that has accrued over a period of time , not
the value of Rokwil at any given
time. The first defendantâs chief
financial officer, Mr Humphries, calculated that the amount of
Rokwilâs profit to be R220 million,
but later accepted Mr Pitoutâs
figure of R281 million. The first defendant also accepted that
he withdrew cash of around R63
million from Rokwil to fund his
lifestyle. It is clear that the audited financial statements done by
Rokwilâs auditors cannot be
relied upon when it comes to
calculating the value share and vice versa, the value share
calculations cannot be used to determine
Rokwilâs net asset value.
It is like comparing apples with oranges.
[126]
It was submitted by plaintiffâs counsel that there is no indication
in the value share agreement as to which portion
of the value share
would eventually be paid by Rokwil. I agree with this submission.
[127]
I could furthermore find no indication in any of the affidavits by
the first defendant that it was ever his intention
or his case that
he was going to dispose of Rokwilâs assets in order to settle the
indebtedness to the plaintiff. In an email dated
1 April 2019, he
wrote that he was happy to use his share in Desert Star as part
settlement, as well as a share he has in a plane,
valued at
R4 million. He also stated the following in his first
affidavit:
ââ¦
I
have taken considerable steps towards reaching a final agreement with
him on how to discharge the judgment by acquiring control
of Keystone
Park CC in order to enable me to divide up or realise the many
undeveloped sites within the development at an equitable
valuation or
price.â
It
appears that the first defendant was intending to use the assets of
Keystone Park CC to settle the debt and not the assets of Rokwil.
[128]
I am therefore of the view that there is no merit in the submission
on behalf of the defendants that it is âoverwhelmingly
clearâ
that the disposal was more than the greater part of Rokwilâs
assets. There clearly was no disposal to start with.
I was
urged in the alternative to refer the disparity between the audited
financial statements and the value share determined by
Mr Pitout for
oral evidence as the amount of R286 million was âridiculously
highâ. In light of what I have already found above,
I see no
purpose in such an exercise.
[129]
I now turn to the defendantsâ contention that the plaintiff should
have been registered as a credit provider in
terms of the NCA, as the
value share agreement, the settlement agreement and the
acknowledgment of debt provide credit to the defendants
in the amount
of R100 million.
[130]
The defendantsâ counsel referred me to the definition of a credit
provider and in particular to
s 1
(h)
of the NCA which refers to the party who advances money or credit to
another under any credit agreement. It was submitted that the
emphasis falls on the words âother credit agreementâ which would
bring it within the definition of âcredit providerâ, in
terms of
which credit is given to another under any credit agreement. It was
also submitted that the value share agreement, the settlement
agreement as well as the acknowledgment of debt provide for the
granting of credit to the first defendant by the plaintiff. It was
also argued that the purpose of the NCA was to ensure that all forms
of agreement which involve the advancing of credit which is
defined
in
s 1
as: âa deferral of payment of money owed to a person or a
promise to defer such paymentâ, fall within the ambit of the NCA.
[131]
I do not agree with the submission that when it comes to considering
the definition of a credit provider referred
to above, the emphasis
should fall on the words âother credit agreementâ. The purpose of
the definition is to describe the credit
provider, not the credit
agreement, and therefore the emphasis should be on âthe party
who
advances money or credit
â (emphasis
added). I can find no indication in the value share agreement that
the plaintiff at any stage advances money or credit
to the
defendants. The defendantsâ counsel has not referred me to a single
clause which would support such a contention.
[132]
The defendantsâ counsel also submitted that
De
Bruyn N.O.
, supra, was authority for
his submission that, provided the extension of credit exceeds the
statutory threshold, registration as
a credit provider is required
even if it is a once off transaction by a person whose business in no
other way qualifies as that of
credit provision. It was also
submitted that the value share agreement, the settlement agreement
and the acknowledgment of debt exceeded
the statutory threshold of
nil by R100 million. The problem however remains that there is no
indication in the value share agreement
that money or credit was
being advanced. It was merely an agreement which acknowledges and
identifies the value share in Rokwil and
how such value share should
ultimately be settled, once calculated.
[133]
As far as the settlement agreement and the acknowledgment of debt is
concerned, I fully align myself with the views
expressed in
Ratlou
,
Hattingh
and
Grainco
, supra. I agree with the
submissions made by plaintiffâs counsel with reference to
Ratlou
,
supra, that it was not the intention of the legislator that the NCA
would be applicable to all settlement agreements whose terms
accord
with the definition of credit transactions. I was referred to the
following in
Ratlou
, where the court held:
â
.
. .the effect of the sudden unintended conversion of a
non-consumer/non-credit provider relationship into one governed by
the NCA,
and the chilling effect that that would have on the
settlement of disputes, would still hold considerable weight. As was
submitted
on behalf of MAN, parties who were never credit providers,
such as a once-off lessor, would suddenly find themselves unable to
enforce
the terms of their settlement agreement, for want of
registration or due assessment or a lessee for
creditworthiness.â
[29]
[134]
In my view it is clear that neither the value share agreement, the
settlement agreement nor the acknowledgment of
debt is subject to the
NCA and the plaintiff was therefore not required to register as a
credit provider.
[135]
It was also submitted by plaintiffâs counsel that even if the
provisions of the NCA were applicable, it would
not assist Rokwil, as
it is a juristic person, whose asset value or annual turnover is in
excess of R1 million, as set out in
section 4(1)
(a)
(i)
of the NCA. On the defendantsâ own version, the asset
value of Rokwil clearly exceeds R1 million. It is however
not
necessary to consider this issue in light of what I have already
found.
[136]
The issue of whether the plaintiff was at all material times a
registered credit provider was listed amongst those
the defendants
wanted to refer for oral evidence. Why they wanted to do so is
a mystery as it would have taken a simple question
directed at Mr Hay
to establish whether the plaintiff was so registered or not. It
unfortunately creates the impression of a litigant
intent on delay as
this clearly never was a material dispute of fact or an issue where
doubt was cast on a particular allegation
of the plaintiff.
[137]
As far as the application for referral to oral evidence is concerned,
I have already touched on some of the issues
listed by the defendants
in their draft order, in particular the issues listed in paras (iii),
(iv) and (v). Despite what I
have already found above, it is
perhaps necessary to briefly deal with the outstanding issues.
[138]
The first issue, whether the first defendant disclosed to the
plaintiff that Rokwil was doing the civil engineering
work on the Mr
Price site or mislead him into believing that the work was being done
by an independent contractor, raises a few questions.
There is
clearly a dispute as the first defendant alleges that the plaintiff
knew all along about Rokwilâs activities. The plaintiff,
in his
answering affidavit in the referral application stated that on first
defendantâs own version, he knew that the plaintiff
was lying when
he confronted him during June 2016 and that the first defendant
therefore could not have been induced by any misrepresentation
to
conclude the value share agreement. It was also stated that the issue
of whether the plaintiff knew about Rokwilâs involvement
is
irrelevant to determine the defendantsâ liability in terms of the
confessions to judgment.
[139]
There is furthermore not a single email or letter in these papers,
written by the first defendant to the plaintiff
subsequent to the
confrontation in June 2016 wherein the first defendant protests
against the plaintiffâs accusations that Rokwil
was performing work
without his knowledge. The probabilities suggest that the first
defendant knew that Rokwilâs activities had
now been exposed and
that he would have to make good to the plaintiff. I am of the
view that this issue is in any event irrelevant
and does not justify
a referral to oral evidence. It has no bearing on the liability
of the defendants.
[140]
The second issue listed for referral is who drafted the value share
agreement and whether Mr Hay introduced changes
into the draft
agreement after 26 September designed to harm the defendants. I
mentioned above that the first defendant initially
alleged that Mr
Hay drafted all the agreements and that he had no legal
representation. Just from the correspondence annexed to the
papers it
is clear that the first defendant lied. He was at all times assisted
by Ms Bartlett, who was the author of the first draft
agreement. Mr
Hay consistently drew the first defendantâs attention to changes
proposed by the plaintiff. The first defendant was
at all times given
an opportunity to either accept or reject any proposed changes and
also made counterproposals which were often
accepted by the
plaintiff. Eleven drafts were exchanged before all the parties were
satisfied, whereafter the first defendant signed
the agreement. I
might just mention that the first defendant made some unsavoury
comments about Mr Hay, which were uncalled for and
for which there
was no justification, as is clearly evident from the papers before
me.
[141]
The caveat subscriptor rule has been found to be âa sound principle
of law that a man, when he signs a contract,
is taken to be bound by
the ordinary meaning and effect of the words which appear over his
signature.â
[30]
It is clear
that no purpose would be served in referring this issue for oral
evidence. The first defendant clearly knew at
all times what he
was signing and there is no evidence that he was ever misled.
[142]
In my view the defendantsâ application in terms of Uniform
Rule
6(5)
(g)
is
without merit and taken together with the totality of the evidence in
the papers before me, would amount to an abuse of process.
[143]
As far as the application in terms of Uniform
Rule 31(1)
(c)
is concerned, the defendants have in my view failed to make out a
case for the setting aside of the consents to judgment signed on
3
April 2019.
[144]
I make the following order:
1.
The defendantsâ application in terms of Uniform
Rule 6(5)
(g)
for the referral of certain issues for the hearing of oral evidence
is dismissed with costs.
2.
Judgment is granted in favour of the
plaintiff against first and second defendants jointly and severally,
the one paying the other
to be absolved, in accordance with the
confessions to judgment dated 3 April 2019, as follows:
2.1
Payment of the amount of R103 128 603.15.
2.2
Payment of interest on the amount of R103 128 603.15 at the rate of
10.25% per annum from 29 February
2020 to date of final payment, both
days inclusive.
2.3
Payment of the plaintiffâs costs of suits on the scale as between
attorney and own client.
BEZUIDENHOUT
AJ
APPEARANCES
Date
of hearing
: 16
April
2021
Date
of judgment :
28 July 2021
For
Plaintiff :
Adv GME Lotz SC
Instructed
by :
HAY & SCOTT ATTORNEYS
1
George MacFarlane
Redlands
Estate
Pietermaritzburg
Tel:
(033) 3424800
E-mail:
paul@hayandscott.co.za ;
jeremy@hayandscott.co.za
Ref:
Mr P Hay / Mr J Capon
For
Defendants:
Adv Broster
SC
Instructed
by :
M
B PEDERSEN & ASSOCIATES
Ground
Floor, NO. 10 Sevenfold
10
Derby Place
Westville
Durban
Tel:
031- 072 0324
Email:
admin@durban-law.co.za
Ref:
M B Pedersen
c/o
BERTUS APPEL ATTORNEYS
151
Zwartkops Road
Pietermaritzbug
Tel
: 033 342 3551
Cel
: 072 362 6281
[1]
Moshal
Gevisser (Trademarket) Ltd v Midlands Paraffin Co
.
1977 (1) SA 64
(N) at 68 to 69.
[2]
AC
Cilliers, C Loots and HC Nel
Herbstein
and Van Winsen: The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
5 ed (2009) at ch27-702 â ch-27-703.
[3]
DE
van Loggerenberg and E Bertelsmann
Erasmus:
Superior Courts Practice
(2020 â Revision Service 15) at D1-363.
[4]
LTC
Harms
Amlerâs
Precedents of Pleadings
9 ed (2018) at 181.
[5]
GB
Bradfield
Christie's
Law of Contract in South Africa
7
ed (2016) at 354.
[6]
Medscheme
Holdings (Pty) Ltd and another v Bhamjee
2005 (5) SA 339
(SCA) para 18. See also
Experian
South Africa (Pty) Ltd v Haynes and another
2013 (1) SA 135
(GSJ) paras 32, 33 and 37.
[7]
Concise
Oxford English Dictionary
12 ed (2011).
[8]
Cambridge
Dictionary
https://dictionary.cambridge.org/dictionary/english/disposal
(accessed
21 July 2021).
[9]
Crous
N.O. v Utilitas Belville
1994 (3) SA 720
(C) at 725EâG.
[10]
S
tandard
Bank of South Africa Limited v Hunkydory Investments 188 (Pty) Ltd
and others (No 2)
2010 (1) SA 634 (WCC)
[11]
S
tandard
Bank v Hunkydory Investments (No 2)
para 11.
[12]
Kinloch
NO and another v Kinloch
1982 (1) SA 679
(A) at 697H â 698C, see S
tandard
Bank v Hunkydory Investments (No 2)
para 12.
[13]
P
Delport
et
al
Henochsberg
on the Companies Act 71 of 2008
(2021
â Service Edition 25) at 407.
[14]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA);
[2012] 2 All SA 262
(SCA)
para 18.
[15]
Du
Bruyn NO and others v Karsten
[2018] ZASCA 143; 2019 (1) SA 403 (SCA).
[16]
Du
Bruyn v Karsten
para 27.
[17]
Hattingh
v Hattingh
2014 (3) SA 162 (FB).
[18]
Grainco
(Pty) Limited v Broodryk NO en andere
2012 (4) SA 517 (FB).
[19]
Grainco
v Broodryk
2012
(4) SA 517
(FB) paras 7.2 â 7.4.
[20]
Ratlou
v MAN Financial Services SA (Pty) Ltd
2019 (5) SA 117 (SCA).
[21]
Ratlou
v MAN Financial Services
para
19.
[22]
Ratlou
v MAN Financial Services
paras
22 and 23.
[23]
Ratlou
v MAN Financial Services
paras
24 and 25.
[24]
Manuel
v Sahara Computers (Pty) Ltd and another
2020 (2) SA 269
(GP) para 89.
[25]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) paras 57 â 58, at 205D â 206B.
[26]
DE
van Loggerenberg and E Bertelsmann
Erasmus:
Superior Courts Practice
(2020 â Revision Service 15) at D1-71 and the authorities referred
therein.
[27]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
para 57.
[28]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 55.
[29]
Ratlou
v MAN Financial Services SA (Pty) Ltd
2019 (5) SA 117
(SCA) para 27.
[30]
See
Burger
v Central South African Railways
1903 TS 571
at 578, quoted with approval in
George
v Fairmead (Pty) Ltd
1958 (2) SA 465
(AD) at 472B-F and see also the discussion in GB
Bradfield
Christie's
Law of Contract in South Africa
7
ed (2016) at 205-210.