About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 62
|
|
Anani Training Enterprise (PTY) LTD and Another v Transnet Limited and Others (2307/2016) [2018] ZANCHC 62 (21 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
no: 2307/2016
Not
reportable
In
the matter between:
ANANI
TRAINING ENTERPRISE (PTY) LTD
FIRST APPLICANT
JOHANNES
TLAISHI MOTHOA
SECOND APPLICANT
And
TRANSNET
LIMITED
FIRST RESPONDENT
TRANSNET
FREIGHT RAIL
SECOND RESPONDENT
PERGUELL
VELDMAN
THIRD RESPONDENT
Heard:
08 December 2017
Delivered:
21 May 2018
JUDGMENT
Phatshoane
ADJP
1.
This is a vindicatory application in which Anani Training Enterprise
(Pty) Ltd ("Anani Training")
and Mr Johannes Tlaishi Mothoa
("Mr Mothoa"), the first and second applicants, seek an
order substantially in the following
terms:
1.1
That Transnet Limited, Transnet Freight Rail, and Mr Perguell
Veldman, the first, second and third respondents
return all the
diamond-cutting equipment as specified in an appendix to Anani
Training's founding affidavit within 24 hours from
date of the order;
alternatively:
1.2
That the above named respondents jointly and/or severally provide
Anani Training with security in a form of
a bank guarantee in the
amount of R4 277 020.00 (four million two hundred and seventy seven
thousand and twenty rands) within 24
hours from date of the order.
2.
In addition to the above application (the main application) there are
two counter-applications before me. In
the first Transnet Limited and
Transnet Freight Rail ("Transnet") claims from Anani
Training payment of all amounts owing,
in terms of the lease
agreement dated 18 October 2010 concluded between Transnet and Anani
Training, in the aggregate sum of R
267 968.12 together with interest
calculated in terms of clause 37 of the lease. For present purposes
it is important to note that
Transnet Freight Rail is an operating
division of Transnet Limited and not a separate legal entity. The two
entities are for all
intends and purposes the same party and
therefore one respondent.
3.
In respect of the second counter-application Mr Veldman, representing
himself, claims from Anani Training and
Mr Mothoa an amount of R 1
050 000.00 (one million and fifty thousand rand) being damages
purportedly flowing from the termination
of the service level
agreement concluded on 27 January 2010 between an entity called Anani
Capital Holdings (Pty) Ltd and Businvest
Investment CC, a close
corporation he managed. The latter two entities are not before Court.
4.
There is also before me for consideration a Third Party Notice filed
by Transnet on Mr Veldman in terms of
which it claims indemnity from
him in the event it is found liable to return the equipment or to pay
Anani Training in lieu of
its value. Transnet also seeks a declarator
that Mr Veldman is liable to return the equipment to Anani Training,
alternatively,
that Mr Veldman is liable to indemnify Transnet for
any judgment debt obtained against it in this litigation including
the payment
of its costs. The Third Party Notice is not opposed by Mr
Veldman.
5.
Anani
Training took a point
in
limine
attacking
the authority of Ms Welekazi Jabosigo to depose to the answering
affidavit on behalf of Transnet. I must immediately say
that the
point is unmeritorious. In
Ganes
and Another v Telecom Namibia Ltd
[1]
the
Court pronounced:
'[19]
... The deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit.
It is
the institution of the proceedings and the prosecution thereof which
must be authorised. In the present case the proceedings
were
instituted and prosecuted by a firm of attorneys purporting to act on
behalf of the respondent. In an affidavit filed together
with the
notice of motion a Mr Kurz stated that he was a director in the firm
of attorneys acting on behalf of the respondent and
that such firm of
attorneys was duly appointed to represent the respondent. That
statement has not been challenged by the appellants.
It must,
therefore, be accepted that the institution of the proceedings were
duly authorised. In any event, Rule 7 provides a procedure
to be
followed by a respondent who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf
of an
applicant.'
In
this case the deponent is the executive manager (litigation) in
Transnet Legal Governance, Compliance and Fraud Risk Department.
She
attached, to her replying affidavit, the delegation of authority
which demonstrates that she is authorised to act on behalf
of
Transnet. In addition, she has authorised Tshabalala attorneys to
institute this proceedings on behalf of Transnet. This authority
was
not questioned by Anani Training.
6.
Both the main application and the first counter-application are
founded on the lease agreement that was concluded
between Anani
Training and Transnet Limited on 18 October 2010 in terms of which
Transnet leased a certain immovable property known
as Mess &
Ablution (Asset Number: 02DH001k), situated in Kimberley, to Anani
Training for a period of three years, commencing
on 01 November 2010
and ending on 30 October 2013, for purposes of conducting training
thereon.
7.
In
its founding papers Anani Training avers that prior to entering into
the aforesaid lease it had been awarded a tender by Sol
Plaatje
Municipality ("Sol Plaatje") to conduct training within the
diamond and jewellery cutting sector. It further
states that one of
the tacit conditions of the tender was that it would have to work in
collaboration with local partners. For
purposes of complying with
this prerequisite it entered into some arrangement with a local
enterprise, Businvest Investment, whose
managing director is Mr
Veldman. As it turned out, the tender was awarded to an entity known
as Anani Capital Holdings (Pty) Ltd.
Anani Capital Holdings, in its
capacity as a project manager in respect of the tender in issue,
concluded a service level agreement
with Businvest in terms of which
the latter was required,
inter
alia,
to
support and assist learners;
.
support project sponsor and stakeholder relationship
where required; and so forth
[2]
At some stage the relationship between Anani Capital Holdings and Mr
Veldman turned sour and was severed around 23 August 2010.
As for the
contract between Anani Capital Holdings and Sol Plaatje it came to an
end during 2012. No training was offered following
such termination.
8.
Anani Training says that it purchased the training equipment for an
amount of approximately R 4 277 020.00
for use by the learners during
their training sessions. In the period between 2012 and 2016 Anani
Training and Mr Mothoa abandoned
the leased premises and never set
foot on it again. However, they left the training equipment behind
and, for this reason, claim.to
have been in occupation of the
premises. Anani Training says that it's training equipment were
stored on the leased premises for
safekeeping in the hope that the
tender agreement between Anani Capital and Sol Plaatje would be
renewed. It further contends that
the lease continued to be in
existence on a month to month basis following its expiry date on 30
October 2013 in that it was not
ended officially by means of a letter
of termination. Anani Training also claims to have continued to pay
the rental in light of
the storage of its equipment.
9.
Transnet explained that in terms of clause 16.1 of the lease:
'The
lessee shall not vacate the leased premises or allow the leased
premises to remain unused unless the prior written consent
of the
lessor is obtained, which consent shall not be unreasonably
withheld.'
10.
Transnet argued in terms of clause 8 of the agreement the lease could
only be used for a specified purpose. In Annexure A to
the lease it
is set out that:
"The lease premises shall be used for
Training purpose and for no other purpose whatsoever."
Transnet
says that it did not consent to the use of the premises as a storage
facility and did not conclud a lease on a month to
month basis as
alleged by Anani Training. It further intimates that upon the expiry
of the lease Anani Training was in unlawful
occupation of the
premises.
11.
According to Transnet its two officials, Messrs Norman Papenfus and
Patrick Segone, when realising that the leased premises
were no
longer being used for its assigned purpose, they attempted to contact
Mr Mothoa using various means of communication but
to no avail. For
instance, letters were dispatched by registered post to Anani
Training but returned undelivered. During April
2013 Mr Papenfus
arranged that the locks on the doors to the leased premises be
changed to prevent Mr Mothoa from gaining entry
in the hope that he
would contact Messrs Papenfus and Segone to discuss the reason for
vacating the premises. On 24 June 2015 they
drew up an inventory of
the equipment found on the premises which they updated on 09 November
2016.
12.
It must be borne in mind that Transnet received a letter dated 26
April 2016, prior to the updating of the inventory, from Mr
Veldman
in which he sought permission to remove the equipment from the leased
premises alleging that the equipment were required
for use in the
exit strategy of a project which was being conducted at the Kimberley
Jewellery and Diamond Academy. Mr Veldman
informed Transnet that this
was part of the training business that he conducted on the leased
premises with Mr Mothoa. He further
informed Transnet that all
possible means to contact Mr Mothoa for a period of 5 years were in
vain and that the latter had disappeared
without trace. He wrote:
'I
took to swear on [oath] and indemnify Transnet against any material
liability whatsoever that may occur before, in between, and
after the
release of the equipment to us. It is understood that as there is
access [by] other sub-contractors to Transnet's premises
where the -
benches are held, the inventory is actually decreasing sparking
concerns to the possibility of the success of the exit
strategy.
Hence
our request that Transnet saves our project by releasing the benches
in order for us to continue with the training and beneficiation
program.
It
is our humble request that Transnet will consider our appeal
[favourably] for the benefit of the program. Any further enquiry
by
any party with [regard] to the benches can be referred to the
premises where we will be operating from, the Kimberley Jewellery
and
Diamond Academy, Kimberley.'
13.
On 28 April 2016 Mr Papenfus gave Mr Veldman permission to remove the
benches (the training equipment) contingent upon indemnifying
Transnet against liability for any damage to the property. The
declaration of indemnity signed by Mr Veldman on 28 April 2016 reads
in part:
'I
the undersigned Perguell Veldman (hereinafter referred to as the
applicant) hereby indemnify Transnet and holds it harmless against:
1.
Any damage to Transnet's property, whether movable or immovable,
including consequential damage arising directly
from physical damage
to the property.
2.
Liability in respect of any damage to the property, whether movable
or immovable, of the applicant or third
parties.
3.
Any legal costs or expenses reasonably incurred concerning claims or
actions arising [from] any of the aforegoing.'
14.
Transnet claims to be unaware that the partnership between Messrs
Mothoa and Veldman had ended. Quite unexpectedly, four years
later,
following Anani Training vacating the leased premises and leaving its
equipment, Mr Mothoa made contact with Mr Segone of
Transnet by way
of an e-mail dated 21 June 2016 requesting access to the
diamond-cutting machines and undertook to pay the outstanding
arrear
rental owing to Transnet in terms of the lease. On 22 June 2016 Mr
Segone replied to Mr Mothoa that permission was granted
to Mr Veldman
to remove the equipment based on his request of 26 April 2016. On 22
July 2016 Transnet revoked the consent it granted
to Mr Veldman to
remove the equipment and instructed him to return the keys to the
leased premises.
15.
Anani Training disputes that the inventory drawn up by Messrs
Papenfus and Segone during June 2015 and updated in November 2016
accurately reflects the training equipment it left on the leased
premises during 2012 and says that Transnet should take full
responsibility for the loss of its equipment. In its replying
affidavit Anani Training acknowledges that Mr Veldman removed the
equipment from the leased premises without its consent. It further
contends that Transnet acted negligently in releasing the said
equipment to Mr Veldman. It says that its relationship with Mr
Veldman was terminated prior to the conclusion of the lease and
had
never introduced him as a partner to Transnet during the currency of
the lease.
The
main application
16.
The issues arising for consideration in respect of the main
application can be summed up as follows:
16.1
Whether Anani Training proved its ownership of the equipment and
whether Transnet and Mr Veldman are liable
to restore possession of
the equipment to it;
16.2
In respect of the alternative claim, whether Anani Training has
proved its claim for the payment of the cost
price of the equipment
in the amount of R4 277 020.00 and whether Transnet and Veldman are
jointly and severally liable for the
payment of the said amount;
16.3
Whether Transnet's liability towards Anani Training is excluded in
terms of clause 33.1 of the lease;
16.4
In the event that Transnet's liability is not excluded in terms of
clause whether its liability is limited
to three months rental
amounting to R12 078.84 in terms of clause 34 of the lease;
16.5
In the event that Transnet is liable for the payment of any amount to
Anani Training then it should be considered
whether it is entitled to
claim indemnity from Mr Veldman in terms of its Third Party Notice.
17.
Mr Veldman contends that the diamond-cutting equipment left behind,
when Anani Training abandoned the leased premises during
2012, did
not belong to Anani but were purchased with State funds. According to
Mr Veldman Mr Mothoa received funds from Sol Plaatje
and bought the
equipment for the sole purpose of conducting the training. He says
the equipment was required for the exit strategy
of the project and
was being used at the Kimberly Diamond and Jewelry Centre in Kimberly
and that the equipment was and remains
the property of the project.
18.
Mr
Mothoa attested to a separate affidavit
[3]
in which he states that Anani Training purchased the equipment from a
certain AMS Engineering and Jewellery Equipment Goldsmith.
He
compiled a list of the equipment allegedly left behind on the leased
premises. He appended three invoices made out to Anani
Training by
the named supplier on 16 and 30 June 2010 as evidence of the latter's
ownership of the equipment. Apart from Mr Veldman's
unsubstantiated
allegation that the equipment belonged to the project there is no
evidence to controvert Anani Training's evidence
that the property
belonged to it. The letter dated 25 April 2009 by Sol Plaatje,
appointing Anani Capital Holdings as a service
provider in respect of
the training project, is silent on the ownership of the equipment to
be used for training
[4]
. In my
view, it can safely be accepted that the equipment belonged to Anani
Training as there is virtually no shred of evidence
pointing to the
contrary.
19.
Apparent from the factual matrix sketched Anani Training acknowledged
that Mr Veldman, in his personal capacity, removed the
equipment from
the leased premises without its consent. It therefore remains to be
considered whether both Transnet and Veldman
are liable to restore
possession of the equipment to Anani Training.
20.
Anani Training relies on negligence in seeking to hold Transnet
liable for the return of the equipment. It avers that Transnet
acted
negligently in releasing the benches/equipment to Mr Veldman. In
amplification, Mr Ryneveldt, for Anani Training and Mr Mothoa,
argued
that Transnet gave Mr Veldman access to the leased premises without
assessing the nature of the relationship between Anani
Training and
Mr Veldman including the latter's credentials. Ms Lapan, for
Transnet, contended that no allegations was made in the
founding
affidavit that Transnet owed any duty of care to Anani Training,
either at common law or in terms of the lease agreement,
to safeguard
the equipment on the leased premises.
21.
The
facts in
Viv's
Tippers (Edms) Bpk v Pha Phama Staff Services (Edms) Bpk tla Pha
Phama Security
[5]
although
distinguishable from the present bear some striking similarities. In
that case a security guard allowed some men to remove
a truck from
the site on the strength of a letter purporting to be from the truck
repairs depot. In that manner the truck was stolen
and never
recovered. The Court found the loss suffered to have been purely
economic in consequence of which the law does not impose
a legal duty
on the guard to prevent the loss. The Court held that where the loss
sustained is purely economic, in other words
it does not arise
directly from damage to the plaintiff's person or property but in
consequence of the negligent act itself,
[6]
the question to be asked is whether public policy or the conviction
of the community require that there be such a duty. I am of
the view
that in evaluating the convictions of the community in this case it
is pertinent to have regard to some contractual terms
between
Transnet and Anani Training.
22.
Clause 33.1 of the lease agreement concluded between Transnet and
Anani Training stipulates:
'The
lessee [Anani Training] shall not have any right, remedy or claim of
any nature whatsoever against the lessor [Transnetl for
any loss ,
damage (whether general, special or consequential}, expense or injury
which may be suffered by the lessee, directly
or indirectly, arising
out of or relating to this lease agreement, irrespectiveof whether or
not such loss, damage, expense or
injury shall have been caused by
the negligence of the lessor or any person for whose acts or
omissions the lessor is vicariously
liable.
Without
derogating from the generality of the aforegoing, the lessor, shall
have no liability to the lessee in respect of any such
loss, damage,
expense or injury which may be suffered by the lessee by reason of
any latent or patent defect in the leased premises,
or from any fire
in or on the leased premises,
or any theft from the leased
premises,
or by reason of the leased premises or any part
thereof being in or falling into a defective condition or state of
disrepair, or
as a result of any
particular repair not being effected by the lessor
either timeously or at all, or arising out of
vis major
or
casus fortuitous,
or arising out of any act or omission of any
other lessee of premises or which the leased premises might form part
or due to a change
of the leased premises' facade, appearance or any
feature thereof ,
or
arising in any manner whatsoever
out of the use of the leased premisesby any person'.
(My
emphasis)
23.
Clause
33.1, in my understanding, exempt Transnet from liability for the
loss suffered by Anani Training, whether such loss arose
as a result
of Transnet's negligence or as a result of theft of the equipment
from the leased premises or arose in any manner whatsoever,
out of
the use of the leased premises by any person. In
Durban's
Water Wonderland (Pty) Ltd v Botha and Anothe
[7]
the
Court made this instructive pronouncement on the approach to the
exemption clauses:
'The
correct approach is well-established. If the language of a disclaimer
or exemption clause is such that it exempts the
proferens
from
liability in express and unambiguous terms effect must be given to
that meaning. If there is ambiguity, the language must be
construed
against the
proferens
(see
Government of the Republic of
South Africa v Fibre Spinners
&
Weavers (Pfy) Ltd
1978
(2) SA 794
(A) at 804C). But the alternative meaning upon which
reliance is placed to demonstrate the ambiguity must be one to which
the language
is fairly susceptible; it must not be "fanciful"
or "remote" (cf
Canada Steamship Lines Ltd v R
[1952]
1 All ER 305
(PC) at 310C-D).'
See
also
Viv's Tippers (Edms) Bpk v Pha Phama Staff Services (Edms)
Bpk t/a Pha Phama Security
(Supra) at 41 para 16;
Walker v
Redhouse
[2007] 4 All SA 1217
(SCA) at 1221 para 14.
24.
There
was no contestation aimed at impugning clause 33.1. The clause is, in
my view, plainly unambiguous. The conduct of the Transnet
officials
and/or that of Mr Veldman falls within the ambit of the disclaimer.
For the very first time, in its replying affidavit,
Anani Training
argued that Transnet was grossly negligent in releasing the equipment
to Mr Veldman on the basis of a letter he
wrote claiming that they
were in partnership. In
MV
Stella Tingas, Transnet Ltd tla Portnet v Owner of the MV Stella
Tingas and Anothe
[8]
the
SCA examined the concept of "gross negligence" and held:
'Gross
negligence is not an exact concept capable of precise definition.
Despite dicta which sometimes seem to suggest the contrary,
what is
now clear, following the decision of this Court in
S v Van Zyl
1969 (1) SA 553
(A), is that it is not consciousness of
risk-taking that distinguishes gross negligence from ordinary
negligence. (See also
Philotex (Pty) Ltd and others v Snyman and
others
[1997] ZASCA 92
;
1998 (2) SA 138
(SCA) at 143C-J.) This must be so. If
consciously taking a risk is reasonable there will be no negligence
at all. If a person foresees
the risk of harm but acts, or fails to
act, in the unreasonable belief that he or she will be able to avoid
the danger or that
for some other reason it will not eventuate, the
conduct in question may amount to ordinary negligence or it may
amount to gross
negligence (or recklessness in the wide sense)
depending on the circumstances.
(Van
Zyfs case
(supra)
at
557A-E.) If, of course, the risk of harm is foreseen and the person
in question acts recklessly or indifferently as to whether
it ensues
or not, the conduct will amount to recklessness in the narrow sense,
in other words,
do/us eventualis;
but it would then exceed the
bounds of our modern-day understanding of gross negligence. On the
other hand, even in the absence
of conscious risk taking,
conduct may depart so radically from the standard of the reasonable
person as to amount to gross
negligence
(Van Zyl's
case
(supra)
at 559D-H.) It follows that whether there is conscious
risk-taking or not, it is necessary in each case to determine whether
the
deviation from what is reasonable is so marked as to justify it
being condemned as gross...
It follows, I think, that to qualify
as gross negligence the conduct in question, although falling short
of
do/us eventualis,
must involve a departure
from the standard of the reasonable person to such an extent that it
may properly be categorised as extreme:
it must demonstrate, where
there is found to be conscious risk-taking, a complete obtuseness of
mind or, where there is no conscious
risk-taking, a total failure to
take care. If something less were required, the distinction between
ordinary and gross negligence
would lose its validity.' (My emphasis)
25.
Reliance
on mere negligence and/or gross negligence as Anani Training sought
to do in its papers cannot avail it. In
First
National Bank of Southern Africa Ltd v Rosenblum
[9]
and another
interpreting
a clause similar to clause 33.1 of the lease the SCA held:
'Nothing
in clause 2 suggests that only
culpa levis
is to enjoy
immunity but not
culpa lata.
Indeed, in the case of
Fibre
Spinners and Weavers
[1978 (2) SA 794
(A)]
(supra)
a
clause which made no mention of negligence at all was held to cover
both negligence and gross negligence. (Here negligence is
expressly
mentioned in clause 2.) It was also held that there was no reason,
founded on public policy, why a clause exempting a
person from
liability for gross negligence should not be enforceable. (At 8070.)'
26.
I am unpersuaded that public policy, or the convictions of the
community, would require that there ought to have been a legal
duty
on Transnet officials to prevent the loss. Anani Training contracted
out of liability arising from negligence in terms of
clause 33.1 of
the lease. Even if I am wrong on this score, Transnet cannot be said
to have been negligent in the circumstances
where Anani Training
deserted the leased premises for a period of four years and was
unreachable. How the officials of Transnet
would have been able to
determine the veracity of the letter they received from Mr Veldman,
requesting the release of the benches
to him on the basis of the
purported partnership between himself and Mr Mothoa, in the absence
of Mr Mothoa, escapes me. Anani
Training never informed Transnet that
it severed its ties with Veldman. Transnet officials could therefore
not have had any reason
to believe that Mr Veldman was not in any
form of partnership with Anani Training. This notwithstanding,
Transnet officials took
precautionary steps before permitting Mr
Veldman to remove the equipment. For instance, they took it upon
themselves to compile
an inventory list of the equipment found on the
leased premises as at 24 June 2015 and updated this during November
2016; they
ensured that Mr Veldman signed an indemnity; and
ascertained the place where the equipment would be kept. The upshot
of this is
that Anani Training failed to establish negligence on part
of Transnet.
27.
In
view of my conclusion above it is not necessary to determine whether
clause 34 of the lease, insofar as it limits the liability
of
Transnet to three month's rental, applied.
[10]
28.
As already alluded to, Anani Training acknowledged that Veldman was
in possession of the equipment. It also appears that some
of the
equipment may still be on the leased premises. I say this because, in
terms of para 23.12 of the annexure to the Third Party
Notice,
Transnet states that when the inventory was updated it appeared that
some of the equipment that had been on the leased
premises since 24
June 2015 had been removed by 09 November 2016. Transnet tendered the
return of the remainder of the equipment
still on the leased premises
to Anani Training. That been the case the equipment had not been lost
or destroyed and its whereabouts
appears to be known to Anani
Training. In light of this, its alternative claim, that it be paid
the cost price of the equipment
in the amount of R4 277 020.00,
cannot be sustained.
29.
Mr Veldman did not dispute that he removed some of the equipment (the
benches) from the leased premises which I have already
determined
belonged to Anani Trading. It is not clear from the evidence whether
Mr Veldman took all the benches, if not then, how
many he took and
the value thereof. There was no evidence adduced showing the number
of benches that were on the leased premises
when Transnet allowed him
to remove them. Be that as it may, it follows that Mr Veldman is
liable to restore possession to Anani
Training of all the
diamond-cutting equipment he took from the leased premises pursuant
to the permission granted to him by Transnet
to remove the said
equipment.
The
first counter-application
30.
The first counter-application has its genesis in clause 44.4 of the
lease which reads:
'Should
the lessee remain in occupation of the leased premises unlawfully
after expiry of this lease agreement for the purpose of
removing any
machinery, plant or ancillary equipment, the lessee shall be liable
for the payment of the rental in terms of the
lease agreement in
respect of such period of occupation as well as compensation for any
damage or loss suffered by the lessor as
a result thereof.'
31.
Transnet maintains that Anani Training failed to pay the rental and
other charges due to it for the entire period of the lease
in the
amount of R267 968.12. It further intimates that Anani Training
remained in occupation of the leased premises after the
expiry of the
lease without its consent. In view of Anani Training's unlawful
occupation, it says, it was unable to re-let the
premises.
32.
The claim for the payment of the arrear rental, other charges and
interest is in respect of the fixed period of the lease commencing
on
01 November 2010 and ending on 30 October 2013. Transnet's further
claim for rental is based on the alleged unlawful occupation
of the
leased premises by Anani Training, after the expiry of the fixed
period of the lease, commencing on 31 October 2013 and
ending on the
date on which Anani Training finally vacates the premises by removing
its equipment.
33.
Anani Training attacked the counter-application on the basis that the
claim was extinguished by prescription. Mr Ryneveldt argued
that
prescription began to run from April 2013 when Transnet changed the
locks to the leased premises and allegedly placed Anani
Trading on
notice for its breach. In view of the fact that Transnet did not
issue summons against Anani Training, within a period
of three years
from the date in issue, its claim has prescribed, the argument went.
Anani Training contends that this also applies
to the claim for the
arrear rental in respect of the alleged unlawful occupation of the
premises. In the latter instance, it argued,
prescription began to
run from 01 November 2013.
34.
Ms Lapan argued that Transnet's claim may well have prescribed if
regard is had to the fact that the counter-application was
lodged on
01 December 2016. However, she argued, in the emails exchanged on 21
June 2016 Mr Mothoa, acting on behalf of Anani Training,
acknowledged
liability for the outstanding balance of Anani Training's account and
expressly undertook to settle such outstanding
account before
removing any of the equipment from the leased premises. She also
referred to an email dated 22 June 2016 by Mr Papenfus
of Transnet to
Mr Mothoa recording the following response:
"[T]he
outstanding rental must be paid before any further arrangement are
made."
In deposing to the answering affidavit (in the
counter-application) Mr Mothoa admits the contents of his email of 21
June 2016 and
states that Anani Training "...
comprehended
its liability towards [Transnet] and, furthermore,
"...
that
the equipment will only be released once the arrear rental as per the
lease agreement has been paid in full."
35.
Ms Lapan argued that the new debt accordingly arose on 21 June 2016
when Anani Training acknowledged its liability towards Transnet
and
undertook to pay its outstanding account, the amount of which would
be determined in accordance with the lease agreement. Resultantly,
when Transnet sought to enforce the new debt in terms of its
counter-application of 01 December 2016 its claim had not prescribed,
the argument continued.
36.
The
following dictum in
Adams
v Motor Industry Employers Association
[11]
is
apposite:
'There
is ample authority to the effect that an acknowledgment of debt,
provided it is coupled with an express or implied undertaking
to pay
that debt, gives rise to an obligation in terms of that undertaking
when it is accepted by the creditor; and it does not
matter whether
the acknowledgment is by way of an admission of the correctness of an
account or otherwise. (Cf
Divine Gates
& Co
Ltd v
Beinkinstadt
& Co
1932 AD 256
;
Somah Sachs (Wholesale) Ltd
v Muller
&
Phipps SA (Pty) Ltd
1945 TPD 284
;
Mahomed
Adam (Edms) Bpk v Raubenheimer
1966 (3) SA 646
(T)) In
Christou
v Christoudoulou
1959 (1) SA 586
(T) there are dicta to the
effect that an admission in respect of an existing debt cannot "found
an independent cause of action"
unless it amounts to a novation
(at 587G-588A). This, with respect, appears to rest on a
misapprehension. There can be no objection
in principle to a second
obligation arising in respect of an existing debt, and this appears
to have been recognized by this Court
(
Smit v Randalia
Versekeringskorporasie van Suid-Afrika Bpk
1964 (3) SA 338
(A) at
346G). The decisive question is whether the acknowledgment contains
an express or implied undertaking to pay, a matter which
relates to
the intention of the parties.'
See
also the judgment of this Court in
Absa Brokers (Pty) Ltd v Stoltz
and others
[2002] 4 All SA 476 (NC).
37.
In
Lieberman
V Santam
Ltd
[12]
the parties had entered into an agreement in terms of which the
respondent had agreed not to plead prescription before an agreed
date. A passenger travelling with the appellant had also instituted
action against respondent who entered into an agreement that
it would
pay her for the damages caused by the negligence of the driver of the
vehicle in which she and the appellant had travelled,
and 50% of the
damages for the negligence of the other driver. The respondent paid
the appellant in respect of the first claim,
but in respect of the
second pleaded prescription, which was upheld. On appeal the Court
held:
"[11]
... On a proper construction of the agreement it is clear, in my
view, that it created a new contractual foundation for
a valid and
enforceable obligation to pay which existed independently of any
previous obligation under the Act. According to the
express wording
of the agreement a new obligation was created ie to pay 50% of such
losses and damages in respect of Carter-Smith's
negligence as might
be agreed between the parties or ordered by the court.... In view of
the express acceptance of liability for
such damages and the
undertaking to pay, it was thereafter no longer open to the
respondent to deny liability. The new obligation
created by the
agreement was to pay 50% of such loss or damages as the Act provided
for. In other words the obligation to pay was
fixed, the only
outstanding issue being the quantification of the obligation which
had to proceed along the statutory lines.
[12]
.It is sufficient to say that the agreement provided the appellant
with a contractual basis upon which to found a cause of
action for
payment which he was free to invoke if he so chose. In my view the
appellant was entitled to found his claim upon the
agreement and it
is clear from his particulars of claim that his cause of action is
based upon the agreement. The contractual obligation
to pay 50% of
the agreed or proved damages represented a new debt. That it had its
roots in the old may be historically so but
that does not derogate
from the fact that it was a fresh obligation and that prescription
could not begin to run against a claim
to enforce it before it
arose.'
38.
Clearly on 21 June 2016 Anani Training acknowledged its indebtedness
to Transnet and expressly undertook to make payment. This
undertaking
was accepted by Papefus on behalf of Transnet. In my view, the
contractual obligation to pay represented a new debt
and gave rise to
"a fresh obligation" even though the debt has its roots in
the history already sketched. It follows
that Transnet's claim for
the payment of the arrear rental had not prescribed.
39.
I now turn to consider whether Anani Training is liable for the
payment of the arrear rental in the amount of R R267 968.12
together
with interest as at 31 March 2017 for the fixed period of the lease
and agreed damages for the alleged unlawful occupation
of the leased
premises after the expiry of the fixed period of the lease in terms
of clause 44 of the lease.
40.
Although Anani Training acknowledged liability it denied that it is
indebted to Transnet in the aforesaid sum and that its occupation
was
unlawful. It argued that Transnet failed to exercise its right in
terms of clause 36 of the lease which provides in part:
'36.1
Should the lessee:
36.1.1
fail to pay any amount due by the lessee in terms of this lease
agreement to the lessor on due date; ...
36.1.5....then
on the happening of any such event, the lessor shall be entitled,
without prejudice to any other rights which he
may have under this
lease agreement or at common law:
36.1.6
to cancel this lease agreement on written notice thereof to the
lessee and claim immediate repossessions of the leased
premises;
or
36.1.7
to remedy such breach and recover the total costs incurred by the
lessor in doing so from the lessee, who shall
be obliged to pay the
amount thereof to the lessor forthwith;
or
36.1.8
to treat the lessee's tenancy thereof as a monthly tenancy terminable
by the lessor on 1 (one) month's prior
written notice to the lessee.'
(My emphasis)
41.
Anani Training contended that on the basis of clause 36.1.8, absent
any notice of termination of the lease, the lease continued
on a
month to month basis. Premised on this, it undertook to pay the
arrear rental before the equipment could be released.
42.
On a proper construction of clause 36.1 of the lease agreement, it is
obvious that Transnet is entitled to make an election
to treat the
lease as a monthly tenancy in the event of a breach by Anani
Training. There is no evidence by Anani Training demonstrating
that
Transnet made such election. Accordingly, Anani Training was and
remains in unlawful occupation of the leased premises. This
would
entitle Transnet to claim payment of the rental in terms of clause
44.4
of the lease.
43.
In terms of clause 37.1 of the lease should Anani Training fail to
make any payment on or before the due date it shall be liable
to pay
interest on the outstanding amount compounded monthly and calculated
from due date at the rate of 200 (two hundred) basis
points above
prime rate of the Bank designated by Transnet. The clause further
stipulates that a certificate containing details
of the applicable
prime rate(s) for any period, signed by a person professing to be a
manager of any branch of the Bank and submitted
by Transnet during
any legal proceedings, shall be accepted as prima facie proof as to
correctness of the contents thereof by Anani
Training. Clause 37.3
stipulates that a certificate signed by a financial manager,
director, company secretary, credit manager
or internal accountant of
Transnet shall be prima facie proof of the amount of indebtedness
owing by Anani Training to Transnet.
In terms of clause 37.2 Anani
Training has accepted liability for and undertook to pay on demand to
Transnet all collection charges
and other legal costs calculated on
the scale as between attorney and own client.
44.
Transnet had initially indicated that Anani Training had only paid a
deposit of R6 650.00 at the commencement of the lease agreement
and
never effected any other payment during its tenancy. Anani Training
disputed this and intimated having paid an amount of R10
055.00 on 13
October 2010; an amount R16 653.20 on 11 April 2011; an amount of R24
204.55 on 22 November 2011; and an amount of
R10 000.00 on 19 July
2012. In its supplementary affidavit Transnet states that the total
amount due and payable by Anani Training
is R267 968.12 and not R243
723.57 as originally claimed. It annexed to its papers a detailed
statement showing how the debt was
computed.
45.
Transnet provided a certificate, duly signed by a manager of its
bank, Standard Bank Corporate and Investment Banking Johannesburg,
containing details of the applicable prime rates for the period of
the lease and the subsequent period when Anani Training remained
in
unlawful occupation of the premises. Transnet also provided a
certificate, duly signed by its senior manager: Credit Management,
as
prima facie proof of the amount of the indebtedness that is due,
owing and payable by Anani Training as at 31 March 2017 in
the stated
amount of R267 968.12.
46.
Anani Training did not dispute the calculations made by Transnet save
that it made payments as already specified, which in any
event were
brought into reckoning by Transnet in determining the amount it owed.
In the absence of any evidence in rebuttal, the
prima facie
proof
of both the arrear rental payable together with interest and other
charges became conclusive proof. Anani Training has agreed
to the
correctness of the contents of the certificates. Consequently, it is
liable to pay the amount of the arrear rental as reflected
on the
certificate.
The
second counter-application
47.
As adumbrated earlier, in respect of the second counter-application,
Mr Veldman claims from Anani Training and Mr Mothoa an
amount of R 1
050 000.00 being damages purportedly flowing from the termination of
the service level agreement concluded on 27
January 2010 between an
entity called Anani Capital Holdings (Pty) Ltd and Businvest
Investment CC. It is apparent that the service
level agreement was
not entered into with Mr Veldman in his personal capacity. He was
merely cited in his personal capacity in
this litigation because he
is said to have removed the diamond-cutting equipment from the leased
premises. He did not bring the
application for joinder of Anani
Capital and Businvest in the proceedings. In the final analysis, the
second counter-application
cannot succeed because the two main
potential litigants involved in that dispute, Anani Capital and
Businvest are not before Court.
That said, I do not find it necessary
to traverse further points
in limine
raised by Anani Training
in its papers.
48.
Turning now to the question of costs: in respect of the main
application, Mr Ryneveld urged, without laying any justifiable
basis
for this, that the costs be on a punitive scale. I disagree. In my
view, such costs should follow the result on party and
party scale.
Transnet succeed in absolving itself from any liability claimed by
Anani Training. It should therefore not be out
of pocket. In respect
of the first counter-application Transnet is entitled to its cost on
an attorney and own client scale as
agreed to in terms of clause 37.2
of the lease. As for the wasted costs of the proceedings of 15
September 2017 the applicants,
Anani Training and Mr Mothoa, did not
prepare and paginate the Court file as they should have. They caused
the delay. Consequently,
they should bear those costs. I proceed to
make the following order.
Order:
1.
The main application is granted only to the following extend:
1.1
Mr Peruell Veldman, the third respondent, is ordered to return to
Anani Training Enterprise (Pty) Ltd, the first applicant,
all the
diamond-cutting equipment he removed from the leased premises within
two days from date of this order.
1.2
Mr Peruell Veldman is ordered to pay Anani Training Enterprise (Pty)
Ltd and Mr Johannes Tlaishi Mothoa's (the first and second
applicants') costs in respect of the main application on a party and
party scale.
1.3
Anani Training Enterprise (Pty) Ltd is ordered to pay Transnet
Limited's (the first respondent's) costs on party and party scale.
2.
The first counter-application by Transnet Limited, the first
respondent, is granted.
2.1
Anani Training Enterprise (Pty) Ltd, the first applicant, is liable
to pay to Transnet Limited the amount of R267 968.12 (two
hundred and
sixty seven thousand nine hundred and sixty eight rand twelve cents).
2.2
Anani Training Enterprise (Pty) Ltd is liable to pay interest on the
aforesaid amount of R267 968.12 calculated at the rate
of 12.5% per
annum from 01 April 2017 to date of final payment.
2.3
Transnet Limited is granted leave to approach this Court on the same
papers, duly supplemented where necessary, for an order
that Anani
Training Enterprise (Pty) Ltd is liable to pay its rental and other
charges due to it in terms of the lease agreement
dated 18 October
2010 together with interest calculated in terms of clause 37 of the
lease from 01 April 2017 to date on which
it finally vacates the
leased premises, such amount to be determined after the date on which
Anani Training Enterprise (Pty) Ltd
finally vacates the leased
premises.
2.4
Anani Training Enterprise (Pty) Ltd is to pay the costs of the first
counter-application on the scale as between an attorney
and own
client as set out in clause 37.2 of the lease agreement.
3.
The second counter-application by Mr Perguell Veldman is dismissed
with costs on party and party scale.
4.
Anani Training Enterprise (Pty) Ltd is to pay the costs occasioned by
the postponement of 15 September 2017.
MV
Phatshoane ADJP
APPEARANCES:
FOR
THE FIRST AND SECOND APPLICANTS:
Adv D L-J Ryneveldt ENGELSMAN MAGABANE
INC
FOR
THE FIRST AND SECOND RESPONDENTS: Adv A J
Lapan
HUGO
MATHEWSON & OOSTHUIZEN INC
FOR
THE THIRD RESPONDENT:
Mr P Veldman (in person)
[1]
[2004] 2 All SA 609
(SCA) at 615 para 19
[2]
The duties and responsibilities of Businvest are set out in clause 6
of the service level agreement entered into between Anani
Capital
and Businvest. It is not necessary, for present purposes, to
enumerate them in any detail
[3]
Annexure "JTM4" to the founding affidavit
[4]
The letter is attached as an annexure to Mr Veldman's answering
affidavit and appears at page 395 of the record
[5]
[2011] 1 All SA 34 (SCA)
[6]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
[2006]
1 All SA 6
{SCA) para 1
[7]
[1999] 1 All SA 411
(A) at 415
[8]
2003 (2) SA 473
(SCA) para 7
[9]
[2001] 4 All SA 355
(A) at 364 para 26
[10]
Clause 34 provides: "Notwithstanding any other provision
contained in this lease Agreement, the parties agree that, in the
event of the lessor (Transnet] being liable to the lessee [Anani
Training) in terms of this lease agreement (for any reason
whatsoever) the liability of Transnet shall be limited to no more
than 3 (three) month's rental, calculated at the time when such
liability arose."
[11]
1981(3) SA 1189(A) at 1198B-G
[12]
2000 (4) SA 321
{SCA)