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[2016] ZAGPPHC 411
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PC Udingo Joint Venture (Pty) Ltd v PC Bouers CC and Another (60315/2015) [2016] ZAGPPHC 411 (10 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 60315/2015
10/6/2016
Reportable
Not
of interest to other judges
Revised
In
the matter between:
PC
UDINGO JOINT VENTURE (PTY) LTD
APPLICANT
and
PC
BOUERS
CC FIRST
RESPONDENT
PHILLIP
JACOBS SECOND
RESPONDENT
JUDGMENT
MPHAHLELE,
J:
[1]
The applicant seeks an order declaring him to be the owner of certain
movable assets listed in the schedule attached to its
notice of
motion. It further seeks an order directing the respondents to
deliver the assets to the applicant forthwith.
[2]
On 05 August 2015 Mavundla J granted an order directing the
respondents to forthwith hand to the deputy sheriff the assets in
question. According to the applicant, the purpose for obtaining the
interim order was to take possession of the assets and retain
such
assets in safekeeping until such time this application could be
determined.
[3]
Notwithstanding the court order, the respondents failed to deliver
the assets in question to the sheriff and the first respondent
has
apparently continued to use same.
Applicant's
version
[4]
In 2008 Mr. Kutloano Leballo of Udingo Construction (Pty) Ltd
("Udingo") and the second respondent, a representative
of
the first respondent entered into a joint agreement to pursue
construction business opportunities. As a result of which the
applicant was formed. The shareholders of the applicant were the
second respondent (holding 45% of the shareholding), Ms. Fadia
Marco
(with 10%) and Mr. Leballo (with 45%) until 08 January 2015. The
remaining directors are currently Ms. Marco and Mr. Leballo.
[5]
The assets of the first respondent and Udingo were thereafter
transferred to the applicant. Although the first respondent and
Udingo continued to exist, neither entity owned any assets subsequent
to the registration of the applicant. The applicant insured
all the
assets in question with the Brokerage (Pty) Ltd (Mutual &
Federal).
[6]
Notwithstanding the formation of the applicant, certain contracts
were concluded in the name of the first respondent which was
used
solely as a conduit. All work performed in terms of such contracts
were performed by the applicant using its resources. The
client would
then pay the contract price or any interim payments into the first
respondent's account after which the applicant
would issue an invoice
for the full contract amount to the first respondent, who would in
turn transfer the full contract price
or any interim payments into
the applicant's account. The first respondent was used in name only.
[7]
The applicant performed various projects either directly or using the
first respondent as a conduit. Virtually all the work
performed by
the first respondent as a conduit is now complete.
[8]
On 18 September 2014 the second respondent indicated that he would be
resigning from the applicant citing the applicant's financial
constraints as his reasons therefor. Thereafter the second respondent
failed to account for the moneys received by the first respondent
for
work performed by the applicant. Subsequently on 02 February 2015, at
a meeting of the board of directors of the applicant,
the second
respondent was removed as a director of the applicant.
[9]
The work now being performed by the first respondent in its own name
is for its own account. The first respondent is using the
applicant's
resources for this purpose. The applicant is the owner of the assets.
In the circumstances where the assets are financed,
the applicant is
the credit receiver and the person entitled to possession thereof.
The second respondent is only in possession
of the assets as it was
using same for and on behalf of the applicant in the mentioned
various building projects. As the second
respondent is no longer
involved in the business of the applicant, he is no longer entitled
to use the assets for his own benefit
or that of the first
respondent. The respondents have no contractual or other right to use
or possess the assets. . ·
[10]
The assets forming part of the subject matter of this application
were always in the possession of the applicant and were used
by the
applicant to conduct its business.
Respondents'
version
[11]
The respondents deny that the assets in question belong to the
applicant. The respondents maintain that they acquired the right
to
use the assets in question at the commencement of the joint venture.
The respondents contend that at the inception of the applicant,
it
was agreed as follows:
1. That the assets in
question would be the assets of the first respondent;
2. That the applicant
will continue paying the expenses associated to the bank
installments;
3. That the applicant
will ensure that all right, title and interest to the assets in
question will vest in the first respondent;
and
4. That the first
respondent would carry out certain contracts in its own name and pay
over funds to the applicant.
[12]
The respondents admit that the assets in question are currently in
the possession of the first respondent. The first respondent
had its
own substantial assets before the formation of the joint venture. The
respondents concede that the first respondent was
used as a conduit
by the applicant to secure business with various state organs. The
second respondent contends he intends in the
future to carry on
business in the name of the first respondent as he has no further
work with the applicant.
[13]
The respondents submit that there is a dispute of fact in relation to
the ownership of the assets in question and therefore
the application
should be dismissed, alternatively, be referred for oral evidence or
for trial.
Analysis
[14]
This court has to identify the facts of the alleged ownership of the
assets in question on the basis of which the legal disputes
are to be
decided. The courts have stated that an applicant who seeks final
relief on notice of motion must, in the event of conflict,
accept the
version set up by his opponent unless the latter's allegations are,
in the opinion of the court, not such to raise a
real, genuine or
bona fide
dispute of fact or are so far-fetched or clearly
untenable that the court is justified in rejecting them merely on the
papers [See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E - 635C]. This principle is
analysed further in the matter of
Wightman t/a JW Construction v
Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at paragraph
13 whereat Heher JA stated:
'A real, genuine and
bona fide dispute of fact can exist only where the court is satisfied
that the party who purports to raise
the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances
where a bare denial meets the
requirement because there is no other way open to the disputing party
and nothing more can therefore
be expected of him. But even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party
and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing
party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true
or accurate but, instead of doing so,
rests
his case on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is satisfied.
I
say 'generally' because factual averments seldom stand apart from a
broader matrix of circumstances all of which needs
to be borne in
mind when arriving at a decision. A litigant may not necessarily
recognise or understand the nuances of a bare or
general denial as
against a real attempt to grapple with all relevant factual
allegations made by the other party. But when he
signs the answering
affidavit, he commits himself to its contents, inadequate as they may
be, and will only in exceptional circumstances
be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser who settles an answering affidavit to ascertain
and engage
with facts which his client disputes and to reflect such disputes
fully and accurately in the answering affidavit. If
that does not
happen it should
come
as no surprise that the court takes a
robust view of the matter.
'
[15]
In an affidavit filed in its application for the winding up of the
applicant, the second respondent stated that the plant and
machinery
belonging to the applicant is available at its various construction
points busy with construction activity and that he
is not using any
of those assets to enrich himself. He denied that the businesses of
Udingo and the first respondent were ever
merged into one entity,
instead the two companies agreed to participate in the joint venture,
namely the applicant. He further
denied that the assets of the first
respondent were ever transferred to the applicant but, in fact the
first respondent let its
plant
I
equipment
I
vehicles
to the applicant.
[16]
By his own admission, the plant and machinery used in the
construction activity belonged to the applicant. These averments
are
further not consistent with the terms of the oral agreement
purportedly entered into between the second respondent and Mr.
Leballo at the inception of the applicant. Needless to say,
respondents failed to plead in detail the terms of the purported oral
agreement.
[17]
The respondents contend that it was agreed that the assets in
question would be the assets of the first respondent. The assets
in
question were acquired and registered in the name of the applicant
after the registration of the applicant.
[18]
It is further alleged that in terms of the oral agreement that the
applicant will continue paying the expenses associated to
the bank
installments. Notably the assets in question which were funded
through instalment sale transactions with financial institutions
were
concluded well after the formation of the applicant. The respondent
failed to deal with these issues in its submissions, more
importantly, to explain how the parties could have entered into such
an agreement prior to the acquisition of the assets. The assets
were
even registered in the name of the applicant after the date of
formation of the applicant which is clearly not in sync with
the
purported agreement. It is incomprehensible for the applicant to have
undertaken to give ownership of assets not yet acquired
to the first
respondent, and undertake to continue making payments towards
installment sale contracts not yet concluded.
[19]
In the circumstances, I am of the considered view that the disputes
raised by the respondents do not amount to
real, genuine or bona
fide disputes of fact.
[20]
From the evidence before me, which is either undisputed or not the
subject of a real, genuine or
bona fide
challenge, the
applicant is the owner of the assets in question. Further, the said
assets were acquired and registered in the name
of the applicant
after its inception.
[21]
In the result, I hereby make the draft order annexed hereto, marked X
an order of court.
________________________
SS
MPHALELE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Counsel
for Applicant:
Adv.
A.G South SC
Instructed
by:
Adams & Adams Attorneys
Counsel
for Respondent:
Mr. Z. Omar
Instructed
by:
Zehir Omar Attorneys, Johannesburg
c/o Friedland Hart
Solomon Nicolson Attorneys,
Pretoria
Date
heard:
5 May 2016
Date
of judgment:
10 June 2016
IN THE HIGH COURT
OF SOUTH AFRICA
[GAUTENG DIVISION,
PRETORIA]
BEFORE
THE HONOURABLE MPHAHLELE J ON 5 MAY 2016
CASE
NUMBER: 60318/2015
IN
THE MATTER BETWEEN:-
PC UDINGO JOINT VENTURE
(PTY)
LTD Applicant
[Registration No.
2008/028743/07)
AND
PC
SOUERS
CC First
Respondent
[Registration No.
1991/031650/23)
JACOBS,
PHILLIP Second
Respondent
DRAFT
ORDER
HAVING
heard counsel for the parties and having read the papers filed,
it is ordered that:
1. The Applicant is
declared to be the owner of the movable assets listed in the schedule
which is attached hereto marked "X1"
("the assets");
2. The Respondents are to
deliver the assets to the Applicant forthwith;
3. In the event of the
Respondents not complying with paragraph 2 above, the Sheriff and/or
his Deputy is authorised and ordered
to take possession of the assets
and deliver same to the Applicant;
4. The Respondents pay
the costs of the application jointly and severally, the one paying
the other to be absolved.
BY
ORDER
REGISTRAR