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[2017] ZANCHC 49
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Poolman v Cordier and Others (2452/2016) [2017] ZANCHC 49 (10 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY
)
Case
number:
2452
/2016
Date heard:
10
/ 02 / 2017
Date delivered:
10
/ 03 /
2017
In the
application between:
HEINRICH
GEORGE POOLMAN
Applicant
and
PIET
SAGARIAS CORDIER
First
Respondent
ROBINCO
TWEE EN TAGTIG t/a
NOORD-KAAP
LEWENDE HAWE
(Reg.
No: 2000/017134/07)
Second Respondent
DUVENHAGE
& VAN DER MERWE INC.
Third
Respondent
Coram:
Erasmus,
AJ
JUDGMENT
ERASMUS,
AJ
[1]
Applicant approached this Court on an urgent basis on Thursday 10
November 2016 and a rule
nisi
was issued calling on the
respondents to show cause on 9 December 2016 why the following relief
should not be made final:
1.1
that
the second respondent be ordered to pay all nett proceeds in relation
to the sale of 221 head of cattle in dispute, and which
cattle were
to be sold at auction on 10 November 2016, into the trust account of
the third respondent;
1.2
that
the third respondent, pending the finalisation of the dispute between
the applicant and the first respondent regarding the
cattle, keep the
proceeds in his trust account, until such time as the dispute is
resolved by a Court, alternatively by the order
of a mutually agreed
arbitrator, in the further alternative, by way of a signed settlement
agreement;
1.3
the
first respondent is directed to pay the costs of this application on
a scale as between attorney and client; and
[2]
The first respondent gave notice of his intention to oppose the
application on 1 December 2016. On 9 December 2016 the
rule
nisi
was extended to 10 February 2017 by mutual consent.
[3]
The applicant stated the purpose of this application to be the
protection of his interests pending cumbersome and financially
straining litigation between himself and the first respondent.
[4]
The dispute which lies at the heart of this application pertains to
the ownership of the cattle and the amounts due and owing
to the
applicant in terms of a written agreement of sale of cattle, entered
into on 1 November 2013 (‘the 2013-agreement’).
In
terms of this agreement the applicant sold cattle to the first
respondent and payment was to be made in instalments until the
outstanding amount was settled in full, with reservation of the
applicant’s right of ownership until the full purchase price
had been paid.
[5]
According to the applicant the first respondent had not paid the full
purchase price. It is the case of the first respondent
that he
had paid the full purchase price and that ownership of the cattle had
passed to him.
[6]
The dispute that led to the application is an alleged agreement
entered into by the parties on 3 November 2016, in terms of
which the
applicant agreed to the sale of 221 head of cattle at auction on 10
November 2016, subject thereto that the proceeds
of the sale would be
paid into the trust account of the applicant’s attorneys and
not be paid out until the main dispute
pertaining to the earlier sale
of cattle has been settled.
It
is the applicant’s case that the first respondent has reneged
on the agreement of 3 November 2016 by approaching the second
respondent in an effort to seize the proceeds of the sale of the
cattle on 10 November 2016.
[7]
The first respondent raised three points in
limine
,
to wit urgency, material non-disclosure in an
ex
parte
application
and the late filing of the replying affidavit of the applicant.
In argument before me, the applicant persisted
with the second point
only.
[8]
With reference to
South
African Airways Soc v BDFM Publishers (Pty) Ltd and Others
[1]
,
it
was
submitted on behalf of the first respondent that the applicant had in
effect approached the Court on an
ex
parte
basis and had not disclosed all the material facts and that, as a
result thereof, the application should be dismissed.
[9]
The facts of this matter are clearly distinguishable from the case
referred to above. There is no evidence that Matlapeng
AJ had
been misled in respect of either service or non-disclosure of
material facts.
[10]
In this matter service of the application papers had been effected on
the attorney of the first respondent, albeit on very
short notice.
The first respondent’s attorney had been informed per e-mail
correspondence on 9 November 2016 at 14:16
that, should the first
respondent not confirm by 16:00 that the proceeds of the sale would
be paid into the trust account of the
applicant’s attorneys,
the applicant would approach the Court on an urgent basis for the
appropriate relief. It appears
from the notice of motion where
and when the application was to be made. The sale of the cattle
was to take place on 10 November
2016 at 12:00 and the granting of
the order had thus not been overtaken by events.
[11]
The background to the application, and more specifically the dispute
pertaining to the amount owing in respect of the 2013
agreement and
the history that led to the events of 3 November 2016 and thereafter,
appear from the founding papers and correspondence
attached to the
founding affidavit.
[2]
It
appears from the founding papers that the applicant disputed having
agreed to be bound or to abide by the findings of
the auditor and
that the first respondent’s indebtedness to the applicant was
in dispute.
[12]
I disagree with the submission that a failure of the applicant to
disclose details of other pending actions or disputes constituted
a
failure to disclose material facts. Although a substantial portion of
the first respondent’s answering papers comprise
a long history
of several other disputes, I deem the reference thereto a digression
from the dispute that forms the subject of
this application.
The other disputes between the parties have a long and protracted
history which I do not deem necessary
to repeat herein and involve,
inter
alia
,
the lease of agricultural land and, what was referred to as ‘a
butchery agreement’.
[13]
The first respondent had neither deemed it necessary to set the
matter down for reconsideration in terms of
Rule
6(12)(c) of the Uniform Court rules
,
nor
had he
anticipated
the return day. He only filed a notice of opposition on 1
December 2016. The short service in this matter
does not
justify a discharge of the rule
nisi
and
dismissal of the application. The points in
limine
must
therefore fail.
[14]
According to the first respondent the relief sought by the applicant
constitutes final relief and, so it was submitted, the
applicant had
not made out a case for such relief. It was also argued before
me that the relief sought is a Mareva injunction
and that the
applicant had not made a case in this regard.
[15]
On behalf of the first respondent it was submitted that there was no
basis in law upon which the applicant can insist on ‘security’
for the amount which the applicant alleges he is indebted to him.
If the applicant’s contention is found to have any
merits, then
on that same contention the first respondent would be entitled to
keep the proceeds from the sale of the cattle pending
the
finalisation of the actions which he has instituted against the
applicant.
[16]
A final interdict resolves the issues between the parties, while an
interim interdict is
a
provisional order designed to protect the rights of the complaining
party pending an action or application to be brought by him
to
establish the respective rights of the parties.
[17]
A Mareva injunction is
a
species of an interim interdict compelling a respondent/defendant to
refrain from dealing freely with his assets to which the
applicant
can lay no claim.
[3]
The
purpose thereof is to prevent the intended defendant, who can be
shown to have assets and who is about to defeat the
plaintiff’s
claim or dissipating assets, from doing so. To be successful,
the applicant must show that the respondent
is wasting or secreting
assets with the intention of defeating the claims of creditors.
[18]
The applicant in this instance had neither attempted to make out a
case for a Mareva injunction, nor had his counsel
argued the matter
on that basis.
I
do not agree with the submissions on behalf of the first respondent
that the relief constitutes a Mareva injunction or that the
relief
sought is final in nature.
[19]
The relief sought was framed as an interim interdict
to
protect the proceeds from the sale of cattle which forms the subject
of the earlier agreement between the parties. The
purpose of
the application was to protect the rights of the applicant, pending
an action in which the contractual rights of the
parties in respect
of the 2013-agreement of sale stand to be determined. An
i
nterdict,
as sought by the applicant, may be granted to prevent the disposal of
money. The money in
casu
is identifiable, as it is held by the second respondent and is
earmarked as a particular fund to which the applicant claims to
be
entitled. The money was received as proceeds of the sale of the
cattle and is destined for a designated purpose, to wit
the payment
of the debt of the 2013-agreement.
[4]
[20]
The
legal requirements for an interim interdict
[5]
are that the
applicant must show
20.1
that he has a
prima
facie
right
to the relief even though this right might be open to some doubt;
20.2
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and he ultimately succeeds in establishing
the
right;
20.3
that the balance of convenience favours the granting of the interim
relief; and
20.4 that he has
no other satisfactory remedy.
[6]
[21]
These requisites must be considered in conjunction with one another
when considering whether to exercise discretion in favour
of granting
the interim relief and requires a preliminary assessment of the
merits of the applicant’s case.
[7]
[22]
The
approach to be followed in establishing whether an applicant has
established the requirements were set out in
Spur
Steak Ranches Ltd and Others v Saddles Steak
Ranch,
Claremont and Another
:
[8]
“
In
determining whether or not the applicants crossed the threshold, the
right relied upon for a temporary interdict need not be
shown by a
balance of probabilities, it is enough if it is prima facie
established though open to some doubt.
The
proper approach is to take the facts set out by the applicants
together with any facts set out by the respondents, which the
applicants cannot dispute, and to consider whether having regard to
the inherent probabilities the applicants should, not could,
on those
facts obtain final relief at the trial.
It
is also necessary to repeat that although normally stated as a single
requirement, the requirement for a right prima facie established,
though open to some doubt, involves two stages. Once the
prima facie right has been assessed, that part of the requirement
which refers to the doubt involves a further enquiry in terms whereof
the Court looks at the facts set up by the respondent in
contradiction of the applicants’ case in order to see whether
serious doubt is thrown on the applicant’s case and if
there is
a mere contradiction or unconvincing explanation, then the right will
be protected. Where, however, there is serious
doubt then the
applicant cannot succeed.”
[23]
It is common cause that the parties had entered into the
2013-agreement and that, in terms thereof, the applicant would remain
the owner of the cattle until the full purchase price had been paid.
[24]
From the correspondence
[9]
, it
appears that the first respondent’s indebtedness and in
particular the amount due and owing in respect of the 2013-agreement,
lay at the heart of the dispute between the parties. The applicant
had proposed the debatement of relevant accounts by way of private
arbitration, but the first respondent was not amenable to such
proposal and the parties have been unable to arrive at a sensible
resolution to the dispute.
[25]
It appears further from the correspondence that the calculations of
the first respondent’s auditor differed vastly from
the
applicant’s calculation of what was due and owing by the first
respondent. As far back as 10 February 2016
[10]
the applicant had stated that he had not agreed to be bound by the
calculations of the auditor. The parties had merely agreed
that
a certain Mr van der Walt be appointed as independent accountant to
investigate the respective documents and accounting systems
of the
parties and that the said accountant would be requested to finalise
the calculations before or on 24 February 2016.
From this
letter it further appears that the first respondent was not entitled
to sell any adult animals as ownership had not passed
to the first
respondent.
[26]
It also appears from a letter of the applicant’s attorneys
dated 8 March 2016
[11]
that
the calculations by the auditor had not been accepted as correct.
From paragraph 14 of this letter it appears that the
first
respondent’s accountant had not interacted with the applicant
and that the intention was that he merely had to prepare
a summary
which could be used as a point of departure for negotiations.
[27]
The first respondent was aware that the applicant disputed the amount
which the auditor had allegedly determined to be outstanding
in
respect of the sale of the cattle in terms of the 2013-agreement.
According to the applicant, as at 31 August 2016, the
amount of
R832,310.22 was still due and owing in respect of the
2013-agreement. This was in fact the dispute that had to
be
resolved and which had led to the agreement between the respective
attorneys on 3 November 2016.
[28]
The dispute as to whether the parties had concluded the agreement of
3 November 2016 is inextricably linked to the earlier
agreement
pertaining to the sale of certain cattle during September 2016.
[29]
On 23 August 2016, prior to finalisation of the eviction proceedings
in terms of which the first respondent was evicted from
certain
agricultural land, the first respondent’s attorneys requested
permission from the applicant’s attorneys to
sell 75 head of
the cattle as the first respondent had allegedly obtained decent
offers for the cattle. After negotiations
between the
attorneys of the parties, the applicant had agreed to the sale
subject thereto,
inter
alia
,
that the proceeds of the sale be paid into the trust account of the
first respondent’s attorneys and certain other conditions.
[12]
[30]
A dispute arose as the cattle had been sold for less than the agreed
price and only half of the proceeds had been paid into
the trust
account of the first respondent’s attorneys. The details
of the dispute appear from correspondence between
the attorneys.
[13]
The applicant’s attorneys had specifically placed on record
that the applicant would not concede to any further sale of cattle.
[31]
In the answering affidavit the first respondent alleged that there
had been a misunderstanding between the parties on 31 August
2016 and
that the undertaking made in August 2016 had not been to hold the
full proceeds of the sale of cattle in trust, but only
to hold
sufficient money to cover the outstanding amount as calculated by the
auditor in terms of the agreement. It was specifically
denied that
there had been an agreement that the full purchase price would be
held in trust. Given the correspondence between
the attorneys
of the parties and the events leading up to 3 November 2016, this
version appears to be improbable.
[32]
The first respondent had to vacate certain agricultural land on 15
November 2016, subsequent to a settlement of the dispute
pertaining
to the lease of agricultural land. As this date approached, the
attorney of the first respondent, as had happened in
August 2016,
contacted the applicant’s attorneys and stated that the first
respondent wanted to sell 221 head of cattle at
an auction scheduled
for 12:00 on 10 November 2016.
[33]
The applicant’s attorneys confirmed that this would be in the
best interest of both parties. In the light of earlier
events
during August and September 2016, the applicant’s attorney had
insisted that the proceeds be paid into his trust account
pending a
solution to the dispute regarding the cattle.
[34]
According to the applicant, the first respondent confirmed that this
was in order and, based upon this agreement, the applicant
agreed
that the cattle could be loaded and transported to the auction to be
sold. The applicant’s attorney of record had
confirmed the
agreement in writing, but never received a response from the first
respondent’s attorney. He accepted that
all was in order.
[35]
It then came to the attention of the applicant’s attorney that
the first respondent and his attorney had approached the
second
respondent with the instruction that the proceeds of the sale of the
cattle were to be paid to the first respondent. The
applicant’s
attorney contacted the first respondent’s attorney on 7
November 2016. The attitude of the first
respondent’s
attorney was then that the cattle had been paid in full and that they
had the right to insist on payment of
the proceeds of the sale.
[36]
In a letter dated 7 November 2016
[14]
the first respondent’s attorneys averred that the cattle had
been paid in full. According to the applicant this letter
was
received on 9 November 2016.
[37]
In reply, the applicant attached a copy of a letter
[15]
,
addressed to the second respondent, informing it about the dispute
and instructed the second respondent to pay the full proceeds
of the
sale into the trust account of the applicant’s attorneys.
A copy of this letter appears also to have been sent
under cover of
an e-mail dated 7 November 2016 at 11:42 to the first respondent’s
attorney.
[38]
The applicant’s attorneys responded to the first respondent’s
letter
[16]
on the same day via
e-mail communication.
[17]
He set out the previous agreement and the applicant’s
discontent with the fact that the first respondent and his attorney
had reneged the earlier agreement by approaching the second
respondent for payment of the proceeds of the sale. The attorney was
requested to confirm before 16:00 on 9 November 2016 that the second
respondent would honour the earlier agreement, failing which
the High
Court would be approached for further relief. The first
respondent had not responded to the allegations contained
in the
e-mail of applicant’s attorney dated 9 November 2016.
[18]
[39]
It is against this background that the first defendant’s
version should be viewed. He denied that the parties had
entered into an agreement on 3 November 2016 in the terms, as averred
by the applicant. The first respondent further contended
that
the purpose of the 3 November 2016 agreement was only to provide as
much security as to make provision for the first respondent’s
indebtedness to the applicant, as found by the auditor, and that his
stance pertaining to the ownership of the cattle had been
conveyed to
the applicant and his attorney prior to 3 November 2016.
[40]
According to the first respondent the full purchase price had been
paid and ownership of the cattle had passed to him and the
acceptance
by the applicant’s attorney that an agreement had been
concluded was misplaced. The undertaking
[19]
by the first respondent was only in respect of the outstanding amount
to be determined by the auditor and to which the parties
had agreed
to be bound. According to the auditor the outstanding amount
was approximately R148,000.00. It has always
been the first
respondent’s stance that the cattle had been fully paid for and
that he was entitled to the proceeds of the
sale of the cattle.
[41]
The version of the applicant pertaining to the history of the dispute
and more specifically the agreement of 3 November 2016,
as borne out
by the correspondence between the attorneys of the parties, is more
probable. The events of September 2016 led
to the applicant’s
insistence that the proceeds be paid into his attorney’s trust
account. If the first respondent’s
attorney held in trust
an amount in excess of what, according to the first respondent, had
been owing to the applicant, it is highly
improbable that his
attorney would have approached the applicant’s attorney on 3
November 2016 to discuss an undertaking.
[42]
The first respondent had not taken issue with the written recordal of
the terms of the August 2016 agreement by the applicant’s
attorney and his follow-up letter of 1 September 2016. He had
also not dealt with the exact terms of the agreement of 3 November
2016 and what had been discussed between the attorneys on that day.
[43]
I agree with the submission on behalf of the applicant, that the
first respondent had bound himself to the agreement of 3 November
2016 which entailed that the full proceeds of the sale of cattle be
paid into the trust account of the applicant’s attorneys,
pending finalisation of the dispute in respect of the
2013-agreement.
[44]
On the papers, I am satisfied that the first respondent had not cast
sufficient serious doubt on the applicant’s averments
which
lead me to conclude that the applicant will not succeed if proven at
a trial. The applicant has thus shown a
prima facie
right,
even though it might be open to some doubt.
[45]
Having accepted that the applicant has shown, on a balance of
probabilities that the parties had concluded the agreement of
3
November 2016, if follows that the first respondent had bound himself
in full appreciation of the facts and had considered the
respective
interests of the parties. The agreement had been reached as a
reasonable measure to strike a balance between the
conflicting
interests of the parties. The attempt by the first respondent
to divert the full proceeds of the sale of the
cattle to himself
constituted grounds for the entertainment of a reasonable
apprehension that the applicant’s rights would
be detrimentally
affected if the interim interdict is not granted.
[20]
[46]
As submitted on behalf of the applicant, the first respondent had
accepted, at least by implication, that the applicant had
insisted on
the agreement to prevent irreparable harm. Any prejudice to the
first respondent would be temporary, as he would
receive any balance
of the proceeds of the sale of the cattle, should it be found due and
payable to him under the 2013-agreement.
I am thus satisfied
that the balance of convenience favours the granting of the interim
interdict.
[47]
In respect of the requirement that the applicant had to show that he
has no alternative remedy, it should be kept in mind that
the
alternative remedy should be found to be adequate in the
circumstances, should be ordinary and reasonable and should grant
similar protection.
[21]
This requirement should also not be viewed in isolation, but in
conjunction
with
the other requirements when exercising my discretion whether or not
to grant the interim interdict. The interim interdict
is in my
view the most reasonable and effective procedure in the circumstances
of this case.
[48]
Having
taken into consideration all the evidence placed before me,
I
am satisfied that the proceeds of the sale of the cattle should be
preserved until the dispute about the sale of the cattle in
terms of
the 2013-agreement has been resolved.
I
am satisfied that the applicant has made out a case for the
confirmation of the rule
nisi
in this matter.
[49]
As correctly conceded on behalf of the applicant, the applicant
should be required to institute action within a specified period
failing which, the rule should lapse. I am entitled to impose such
conditions and deem a period of three weeks from date of this
order
to be fair to both parties.
[50]
No arguments were advanced on behalf of the first respondent as to
why costs should not be awarded to the successful party.
It was
argued on behalf of the applicant that, should he be successful, the
first respondent should be ordered to pay the costs
of the
application on a punitive scale because the conduct of the first
respondent amounted to frivolous and vexatious litigation.
I
disagree and find that the nature of the application and conduct of
the first respondent do not warrant a punitive cost order.
I make the following
order:
1
PARAGRAPHS
1.1 AND 1.2 OF THE RULE NISI ISSUED ON 10 NOVEMBER 2016 UNDER CASE
NUMBER 2452/16 ARE CONFIRMED, SUBJECT THERETO THAT
THE APPLICANT
INSTITUTE ACTION WITHIN THREE (3) WEEKS OF THE DATE OF THIS ORDER
FAILING WHICH, THE ORDER SHALL LAPSE.
2
THE FIRST RESPONDENT IS ORDERED TO PAY THE APPLICANT’S TAXED OR
AGREED COSTS OF THE APPLICATION ON A SCALE AS
BETWEEN PARTY AND
PARTY.
_________________
SL
ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
On
behalf of the Applicant:
Adv
WA van Aswegen oio Duncan & Rothman Inc.
On
behalf of the Respondent
:
Adv P Zietsman SC and Adv R van der Merwe oio Hugo Mathewson &
Oosthuizen
[1]
2016
(2) SA 561 (GJ)
[2]
Annexure ‘HG3’, ‘HG4’, ‘HG5’,
‘HG10’ and ‘HG13’ to the founding affidavit
[3]
Knox D’Arcy v Jamieson
1994(3) SA 348 at
371-372
[4]
Nieuwoudt v
Maswabi
2002 6 SA 96
(O)
[5]
Setlogelo v Setlogelo
1914 AD 221
at 227;
Webster
v Mitchell
1948 (1) SA
1186
(W) at 1188-1189
[6]
Eriksen Motors (Welkom) Ltd v
Protea Motors, Warrenton
1973(3)
SA 685 (A) at 691F;
Gool
v Minister of Justice and Another,
1955
(2) SA 682 (C)
at 687 – 8;
Ferreira
v Levin NO; Vryenhoek v Powell NO
1995(2)
SA 813 (W) at 817I-818B and 824I-J
[7]
Olympic
Passenger Service (Pty) Ltd v Ramlagan
1957(2)
SA 382 (D) at 383C-G
[8]
1996(3) SA 706 (C) at 714E-G
[9]
Annexure
‘HG4’ to the founding papers and ‘M5’ to the
answering affidavit
[10]
A
nnexure
‘M5’ to the answering affidavit
[11]
Annexure
‘L’ to the answering affidavit
[12]
Annexures ‘HG5’ – ‘HG7’ to the
founding affidavit
[13]
A
nnexures
‘HG4’ and ‘HG8’ - ‘HG10’ to the
founding affidavit
[14]
A
nnexure
‘HG13’ to the founding affidavit
[15]
Annexure
‘RA1’ to the replying affidavit
[16]
Annexure
‘RA13’ to the founding affidavit
[17]
Annexure
‘HG14’ to the founding affidavit
[18]
Annexure
‘HG14’
[19]
As
set out in annexure ‘HG13’
[20]
Janit v Motor Industry Fund
Administration (Pty) Ltd
1995(4)
SA 293 (A) at 304H-J;
V
& A Waterfront Properties (Pty) Ltd v Helicopter and Marine
Service (Pty) Ltd
2004
2 All SA 664
(C) par [18]
[21]
Chapman’s Peak Hotel v
O’Hagans
[2001] 4
All SA 415
(C) at 420