About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 367
|
|
Biz Africa 985 (Pty) Limited v Saki Mining Construction And Projects (Pty) Limited and Others (75673/2015) [2016] ZAGPPHC 367 (13 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:75673/2015
DATE:
13 MAY 2016
In
the matter between:
BIZ
AFRICA 985 (PTY)
LIMITED
........................................................................................
Applicant
And
SAKI
MINING CONSTRUCTION AND
PROJECTS
(PTY)
LIMITED
.....................................................................................
First
Respondent
SAKI
MOJAWESI
....................................................................................................
Second
Respondent
THE
SHERIFF FOR THE DISTRICT OF
THABAZIMBI
...................................
Third
Respondent
STANDARD
BANK OF SOUTHERN
AFRICA
....................................................
Fourth
Respondent
LIMITED
Date
of hearing: 17 March 2016.
Date
of Judgment: 13 May 2016.
MOTHLE J
Introduction
1.
Biz Africa 985 (Pty) Ltd, ("the
Applicant”), claims relief against Saki Mining Construction and
Projects (Pty) Ltd and
Saki Mojawesi (“the First and Second
Respondents respectively”), arising out of a Joint Venture
Agreement between the
two companies.
2.
The First and Second Respondents (“the
Respondents”) oppose this application. No relief is sought
against the Fourth
Respondent or a costs order against the Third and
Fourth Respondents, unless either of the parties elects to oppose the
application.
Background
3.
The application first came by way of
urgency and this Court, on 29 September 2015, struck the application
from the roll for lack
of urgency. The matter was then re-enrolled in
the ordinary course in terms of the Uniform Rules of Court applicable
to opposed
motions.
4.
The issues giving rise to this claim
concern a Joint Venture Agreement between the Applicant and the First
Respondent, entered into
on or about 27 March 2015 at or near
Rustenburg North West Province. The purpose for the Joint Venture
(“JV”) was to
tender for and conclude a contract for
execution of certain building works. The tender was awarded to the JV
and the contract for
the building works concluded with the Joint
Venture. The latter got involved in the building project.
5.
The material terms of the Joint Venture
Agreement are that:
5.1
The parties to the Joint Venture
Agreement will constitute the management of the project;
5.2
The parties elected to open a JV banking
account into which all payments and from which all withdrawals for
the projects will be
made, in the course of managing the project;
5.3
The representatives of both parties will
be authorised to sign for any payments made out of the JV account;
and
5.4
The Applicant and the First Respondent
would share in the profits and losses of the JV in equal proportions.
6.
According to the Applicant, disputes
arose between the parties and have escalated to the point where
further co-operation between
the parties in respect of the affairs of
the Joint Venture has become impossible. Consequently, the Applicant
seek relief in the
form of:
6.1
Specific performance, wherein the Second
Respondent is ordered to ensure payments of certain amounts out of
the JV account;
6.2
An order that the Second Respondent be “
interdicted
and directed to immediately upon request by the Applicant to take
such steps, do all such things necessary and sign
all such documents
as are reasonably required to give effect to the provisions of
prayers 2 hereof and to effect payment in accordance
therewithand
ordering the Second Respondent to take such steps, failing which the
Third Respondent, as the Sheriff, being authorised
to do that in the
place of the Second Respondent.
Issues
in contention
7.
In its affidavit filed when the matter
was first enrolled in the court for urgent applications, the
Respondents attack the urgency
of the application on three main
grounds, namely:
7.1
That no case has been made out to
support that the payment of the employees’ salaries as well as
the other creditors was urgent.
It needs to be mentioned at this
stage that during the hearing of this matter, the Court was informed
that the employees’
salaries have since been paid;
7.2
That the application is one of an
interdict and the requirements for an interdict have not been set out
in the founding affidavit;
and
7.3
That there are disputes of fact between
the Applicant and the First Respondent which may not be resolved on
the papers before this
Court.
8.
In support of its claim, the Applicant,
in paragraph 31 of its founding affidavit, sets out the various areas
of dispute existing
between itself on the one side and the
Respondents on the other. The disputes identified by the Applicants
include, amongst others:
8.1
That the Second Respondent regularly
absented himself from the building site and was rarely, if ever,
present to comply with any
of his obligations;
8.2
The Respondents failed to contribute
financially to the working capital of the Joint Venture and owes the
Joint Venture R681,718.63.
The Joint Venture in turn owes the
Applicant and amount of R 742 837,59.
9.
It is alleged that the First Respondent
misappropriated substantial amounts of money of the Joint Venture.
The details appear in
paragraph 33 of the founding affidavit.
10.
The Applicant concludes in paragraph 35
of the founding affidavit by describing the disputes between the
parties as having escalated
to the point where further co-operation
between the parties has become impossible.
11.
In the answering affidavit, the
Respondents confirm the existence of disputes between the parties and
in fact raises their side
of the complaints. Amongst others, they
contend that among the creditors which the Applicant pleads should be
paid, is an entity
which supplied products to the project during the
construction and has since emerged to be a subsidiary of the
Applicant. The Applicant
had not disclosed this relationship to the
Respondents. In essence, the Respondents are complaining that the
Applicant acted in
bad faith in not disclosing that it was conducting
business with a Joint Venture through one of its subsidiaries known
as Ellecon.
12.
The Respondents also raises inaccuracies
in the payment of invoices which the Applicants made to suppliers.
They allege that the
payments are unrelated to the project or the
business of the JV. The Applicant, in the replying affidavit,
dismisses this charge
as a mistake which it made when it paid
invoices out of the JV bank account, to other suppliers, unrelated to
the business of the
Joint Venture.
13.Evaluation.
13.
Clause 16 of the Joint Venture Agreement
makes provision for reference of disputes to arbitration. It
elaborately sets out the circumstances
under which an arbitrator can
be identified and appointed and the entire mechanism of how disputes
between the two parties can
be resolved.
14.
During
the hearing of this matter, the Court enquired from the parties,
mainly the Applicant, as to why this matter was not referred
to
arbitration prior to the issues being raised in Court. The
Applicant’s counsel submitted that there is authority
supporting
the view that even where the parties have agreed to submit
to arbitration, this does not preclude them from approaching Court
for
relief. It was further argued on behalf of the Applicant that the
Respondents should have applied for a stay of the proceedings
in
order to have the disputes resolved by arbitration.
[1]
15.
This Court is familiar with the
authorities and in fact agrees that there are instances where resort
to arbitration may not be an
appropriate relief in specific
circumstances. However, in this particular case, the Respondents in
their answering affidavit raise
the question of arbitration thus:
”
29.
It is common cause that none of these disputes are capable of being
resolved on the present papers and that
at
least one of them
has been referred to trial by arbitration.”
(Court
emphasis)
16.
The Applicant in the replying affidavit,
generally denies the allegations but does not specifically deal with
the allegation that
at least one of the disputes has been referred to
trial. It is the Court’s view that the relief sought by the
Applicant cannot
be addressed while the disputes identified by both
parties, in particular as raised by the Applicant, remain unresolved.
The Applicant
lodged this application being fully aware of the
arbitration clause in the Joint Venture Agreement, and more
importantly, being
aware of the existence of the disputes of fact.
17.
It was also submitted on behalf of the
Applicant that some of the allegations raised in the founding
affidavit have not been specifically
responded to or denied in the
Respondents’ answering affidavit and they thus stand
undisputed. There is indeed reference
to the specific paragraphs. The
submission is that relief should then be granted based on the
portions of the founding affidavit
which appear undisputed.
18.
The disputes between the parties mainly
arise from the management of the finances of the Joint Venture. The
Respondents, while in
some instances do not deal with each and every
allegation in some of the paragraphs; raise a defence which confirms
the applicant’s
averment that the parties are locked in factual
disputes. The averments in the answering affidavits are not just bare
denials,
but present a general response to the applicant’s
claim. They raise issues which in the Court’s view supersedes
the
specific response to the allegations, such as the non-disclosure
of the relationship between the applicant and its subsidiary,
Ellecon.
19.
At the nub of the relief sought by the
applicant, is the payment of money allegedly due to the Applicant and
other creditors, including
its disputed subsidiary, Ellecon. The
allegation that the Respondents do not deny the products received by
the JV and therefore
have to pay, does not deal with the allegation
of non-disclosure of the relationship between Ellecon and the
Applicant, as raised
by the Respondents. There is also the allegation
that the applicant made payments from the bank account of the JV, to
other parties
for business unrelated to the JV project. The applicant
does not deny this allegation.
20.
The disputes between the parties are
thus wide-ranging and cannot be dealt with piece-meal or in
isolation. Thus any order to authorise
payment from the JV’s
bank account in favour of either of the parties, prior to the
resolution of these disputes, will have
an impact on the finances and
result in the prejudice to one or the other of the parties.
21.
It is the Court’s view that it
will thus be premature and inappropriate to grant any relief relating
to the payment of any
moneys, prior to the disputes being resolved,
even where it appears the Respondents have not specifically responded
to an allegation
raised in the founding affidavit.
22.
In light of the decision this Court is
about to take, it will thus be unnecessary to deal extensively with
the merits of the Applicant’s
claims in support for the relief
it seeks.
Conclusion
23.
Having
regard to the conspectus of the evidence, this Court is of the view
that the application raises serious disputes of fact
which are too
wide-ranging from both sides and thus not capable of being resolved
on the papers or by referral to oral evidence
[2]
.
It seems to me that the only suitable process that would assist the
parties to define the issues between them would be to refer
the
matter to trial. The parties may however exercise the option of
settlement or arbitration, with a view to a just, cost effective
and
expeditious resolution of their disputes.
[3]
24.
I am also of the view that the costs of
the hearing of this application should be reserved.
25.
In the premises I make the following
order:
1.
This application is referred to trial with the following directive:
1.1
The notice of motion shall stand as
simple summons;
1.2
The answering affidavit as a notice of
intention to defend;
1.3
The applicant, as plaintiff, shall file
a declaration within 20 days from the date of this order; and
1.4
The Uniform Rules relating to further
pleadings, discovery, preparation for and the conduct of trial
proceedings shall thereafter
apply.
2.
The costs relating to the hearing of
this application are reserved.
SP
MOTHLE
JUDGE
OF THE HIGH COURT GAUTENG DIVISION,
PRETORIA.
For
the Applicant: Adv. SD WAGENER SC
Instructed
by: WEAVIND & WEAVIND ATTORNEYS
Glenfield
Office Park, Oberton street,
FAIRIE
GLEN, PRETORIA.
For
the Respondents: Adv. DC MPOFU SC
Instructed
by: AK NKOME Attorneys
Hatfield
Forum East, Arcadia. Street. HATFIELD, PRETORIA.
[1]
Conress (Pty) Ltd v Gallic Construction (Pty) Ltd
1981 (3) SA 73
(W); Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221.
[2]
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1161-
1162.
[3]
Haupt t/a Soft Copy v Brewers Markerting Intelligence (Pty) Ltd
[2006] ZASCA 40
;
2006
(4) SA 458
(SCA).