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[2016] ZAGPPHC 802
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MMTNB General Trading (Pty) Ltd v Evaton Fuels CC t/a BP Evaton North and Others (72636/2015) [2016] ZAGPPHC 802 (9 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 72636/2015
9/9/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MMTNB
GENERAL TRADING (PTY)
LTD Applicant
And
EVATON
FUELS CC t/a BP EVATON
NORTH First
Respondent
CONTROLLER
OF PETROLEUM PRODUCTS Second
Respondent
B
P SOUTHERN
AFRICA Third
Respondent
THE
NATIONAL EMPOWERMENT
FUND Fourth
Respondent
NIENABER
FAMILY INVESTMENTS CC and
TRIPLE
K INVESTMENTS (PTY)
LTD Fifth
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, AJ
1.
In this application, the applicant seeks relief in terms whereof the
business of the first respondent and the business premises
of the
fifth respondent, known as BP EVATON NORTH situated at 1892 Rabotapi
Street, Evaton North, Gauteng, are to be handed over
to the
applicant, together with ancillary relief against the second and
fourth respondents respectively.
2.
The aforesaid relief is premised upon specific performance in terms
of alleged agreements between the applicant on the one part
and the
first, third and fifth respondents respectively on the other part.
3.
The applicant is MMTNB General Trading (Pty) Ltd, a company with
limited liability, initially co-owned by the deponent to the
founding
affidavit and presently co-owned by her husband and their son. The
applicant was incorporated for the purpose of purchasing
the
aforementioned business. The first respondent is the owner of the
business B P Evaton North, being a retailer of petroleum
products,
the subject of this application. The second respondent is the
Controller of Petroleum Products responsible for the issuing
of
licences in terms of the
Petroleum Products Act, No. 120 of 1977
. The
third respondent is B P Southern Africa, a company that
inter alia
franchises the retail of petroleum products. The fourth
respondent is the National Empowerment Fund and the fifth respondent
is
the owner of the premises upon which the business is situated.
4.
The respective relationships between the parties have a chequered
history.
5.
There are a number of disputes on the papers. The applicant is of the
view that those disputes are not real disputes and can
be decided on
the papers. The applicant declined to have the disputes referred to
oral evidence or trial. The first, third and
fourth respondents
concurred with the applicant's view. The matter is to be dealt with
on what is contained in the papers filed.
6.
A brief background may prove useful. In this regard the following can
be gleaned from the papers.
(a) The deponent to
the founding affidavit and her husband decided to purchase the
aforesaid business on learning that it
is for sale;
(b) In that regard
they, on behalf of the applicant, entered into negotiations with the
first respondent and a written agreement
was concluded as contained
in FA1 to the founding affidavit. Thereafter, two further agreements,
relating to the sale of the business,
were concluded with the first
respondent; FA2 and FA3, respectively;
(c) The applicant
commenced negotiations with the third respondent with a view to
retailing petroleum products on the third
respondent's behalf at the
premises where the first respondent's business was conducted, i.e. at
the aforementioned property. Those
negotiations were successful to
the extent that the third respondent conditionally appointed the
applicant as dealer at the aforementioned
property;
(d) Negotiations
were also commenced with the fourth respondent for funding the
aforementioned purchasing of the first respondent's
business;
(e) The
aforementioned negotiations were entered into during 2013;
(f) On 15
April 2014, the fourth respondent conditionally approved the funding
applied for;
(g) Following on
the conditional appointment of the applicant as dealer, the applicant
was required to enter into agreements
with the third respondent
relating to franchising and to a lease agreement relating to the said
property. Both these agreements
were subject to conditions being
complied with by the applicant;
(h) The
aforementioned agreements were entered into only between the
applicant and the respective respondent. The agreements
were separate
and distinct of one another.
7.
It follows that the agreements between the applicant and the third
and fourth respondents are dependant upon the continuance
of the
agreement in respect of the purchasing of the business of the first
respondent.
8.
Against the aforementioned background, matters took a turn in 2014
and the respective relationships became soured and strained.
The
applicant encountered various problems in complying with the
conditions imposed upon it in respect of the relevant agreements
entered into.
9.
It became clear to the applicant that none of the respondents, i.e.
first, third and f9urth, had any appetite left to continue
with their
respective roles relating to the purchasing of the business of the
first respondent.
10.
In that regard, the first respondent cancelled the agreement relating
to the sale of the business for want of payment of the
purchase
price. Only an amount of R500 000.00 was paid. The third respondent
withdrew the letter of conditional appointment on
the ground of non
compliance with conditions set. The fourth respondent withdrew its
commitment in respect of funding, similarly
for want of compliance
with conditions. The applicant launched this application, contending
that it had met all conditions imposed
upon it by the respective
agreements.
11.
Mr Savvas, who appeared on behalf to the applicant, disavowed any
reliance on the agreements in FA1, FA2, and FA3. He sought
to rely on
"bits here, bits there and the concurrences, assistance and
participation" for the relief sought. No
contract in that
regard is pleaded. The basis for the relief is to be inferred from
the alleged "concurrences, assistance
and participation".
12.
On behalf of the applicant much reliance was placed upon the
franchise agreement and the lease agreement with the third
respondent.
In respect of the first respondent, the applicant relies
upon the
"essentialia"
relating to the purchase
price and the alleged jettisoning of the stipulated date for payment
thereof. The applicant alleges that
all the conditions imposed upon
it by the fourth respondent were met. Hence the relief sought is
competent.
13.
It is conceded by Mr Savvas that if the applicant is not successful
in respect of the relief sought relating to the handing
over of the
business of the first respondent and the premises at which it is
conducted, the applicant would have no
locus standi
in respect
of the remaining relief sought. That being so, in view of the
findings that follow, it is not necessary to deal with
the underlying
reasons for that relief.
14.
In the founding affidavit, the purchase price of the business is
stated to be R3 000 000.00 of which an amount of R500 000.00
was
paid. However, in FA1, the initial agreement, it was recorded to be
R3 800 000.00. In the replying affidavit the applicant
accepts
that the purchase price is R3 660 000.00. Disavowing any reliance on
either of FA1, FA2 or FA3, it is not clear what the
essentialia
in
respect of the purchase price is.
15.
The first respondent alleges that the agreements in FA1 and FA2 were
superseded by FA3, the latter constituting the underlying
agreement
for the purchase of the first respondent's business.
16.
Mr Savvas submitted that the first respondent jettisoned the
condition set for payment of the purchase price when it did not
enforce compliance therewith. Hence, Mr Savvas submitted that
accordingly there was no time set for payment of the purchase price.
17.
On the
first respondent jettisoning the time for performance in respect of
payment of the purchase price, Mr Savvas submitted that
no reliance
for cancellation of the agreement could be placed on the non
compliance thereof. The submission begs the question.
If no specific
date was then agreed upon, it is trite that a reasonable time within
which payment is to be effected is to be implied,
alternatively that
it is to be performed on demand.
[1]
In that regard the first respondent addressed a letter of demand for
compliance with payment of the purchase price. There was no
compliance with the demand. The agreement in FA3 was cancelled
following on the non-compliance with the letter of demand. That
cancellation has a domino effect. All other agreements that flowed
from the sale agreement were of no consequence or effect.
18.
Furthermore, the third respondent withdrew its conditional
appointment of the applicant as trader. Mr Savvas submitted that
such
withdrawal was of no consequence. The concluding of the franchise and
lease agreements had superseded that conditional appointment.
Hence
there was nothing to withdraw. There is no merit in that submission.
The letter of conditional appointment refers to the
concluding of a
franchise agreement and a lease agreement. Both those agreements
refer to and incorporate the letter of conditional
appointment as
trader. Those agreements depend on the continued conditional
appointment as trader. It follows that non compliance
with the
conditions contained in the letter of conditional appointment affect
all subsequent agreements that flow there from. Once
the letter of
conditional appointment as trader is withdrawn, the franchise and
lease agreements have no continuance and no consequence
and effect.
19.
It follows that once the purchase agreement falls away and the letter
of conditional appointment as trader has no status, nothing
remains
to be funded.
20.
The party
asserting that a contract exists is obliged to prove that
contract.
[2]
In the absence of
the applicant pleading a contract of purchase with clearly
discernable terms, it is trite that it is not for
the court to
determine what the contract was and to determine the terms thereof.
It is not clear what constitutes the alleged "concurrences,
assistance and participation" that is to constitute the
agreement between the parties. Mere assistance in concluding an
agreement
does not impart any obligations on the party assisting.
21.
On the
principles enunciated in the judgment of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
the
version of the first respondent is to be accepted in respect of the
agreement to purchase the business. I have referred above
to the
first respondent's allegation that FA3 constituted the agreement of
sale and that it was cancelled. I find that the agreement
to purchase
the business of the first respondent, and the terms and conditions
thereof, is contained in FA3. That agreement was
cancelled.
22.
Consequently, it is not required to consider the applicant's
contentions in respect of the withdrawal of the conditional
appointment
as trader or those relating to the fourth respondent
withdrawing from the funding of the purchase price. Suffice to say
that the
applicant knew what conditions it had not complied with
vis-a-vis
the fourth respondent. That appears clearly from its
own e-mails attached to the papers. In respect of the obtaining of
the retail
licence
vis-a-vis
the third respondent, the
applicant seeks specific relief against the second respondent in that
regard.
23.
It follows from the foregoing that the application cannot succeed.
I
grant the following order.
(a) The application
is dismissed with costs.
On
behalf of Applicant: B
Savvas
Instructed
by: Venn
& Muller Attorneys
On
behalf of First Respondent: H
M Viljoen
Instructed
by: Metcalfe
Attorneys
On
behalf of Third Respondent: C
T Vetter
Instructed
by: Nortons
Inc
On
behalf of Fourth Respondent: K
T Mokhatla
Instructed
by: C
Ngubane & Associates Inc.
[1]
Laljee v Omadutt (1883) 4 NLR 117
[2]
McWilliams v First Consolidate Holdings (Pty) Ltd 1982(2) SA 1 (1)
[3]
1984(3) SA 623 (A)