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[2015] ZAGPPHC 113
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Standard Bank of SA Limited v Chiwaka and Moore Transport CC and Others (69092/2013) [2015] ZAGPPHC 113 (20 February 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE GAUTENG
DIVISION, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NO: 69092/13
DATE: 20 FEBRUARY
2015
In the matter
between:
THE STANDARD BANK
OF SA
LIMITED
...................................................................
1
st
APPLICANT
And
CHIWAKA AND MOORE
TRANSPORT
CC
...........................................................
1
st
RESPONDENT
JAN DANIEL
MOORE
................................................................................................
2
nd
RESPONDENT
SIMON
CHIWAKA
......................................................................................................
3
rd
RESPONDENT
JUDGMENT
MSIMEKI J:
INTRODUCTION
[1] The applicant in
this application seeks an order:
“
1.
That the First Respondent is ordered to forthwith return to the
Applicant the following asset:
CAT
SKIDSTEER IT14, SERIAL NUMBER FWL00938
(“the
asset”)
Failing such return
the sheriff of the Court is duly authorised to attach the asset and
to hand same to the Applicant;
2. The Applicant
shall within a reasonable period of time attend to:
2.1.
Independently value the asset
(“the
valuation”);
2.2.
Sell same by way of private treaty or public auction for equal or
better than the valuation
(“the
sale”);
2.3. Credit the
First Respondent’s account with the Applicant with account
number 3[...] with the proceeds of the sale less
all costs reasonably
incurred and incidental to the attachment, transport, valuation,
storage and sale.
IN
ALTERNATIVE
to
paragraphs 1 to 2 above, pending the outcome of the Applicant’s
action before this Honourable Court under case no 12145/2013:
3. That the First
Respondent is ordered to forthwith return to the Applicant the
following asset:
CAT SKIDSTEER IT14,
SERIAL NUMBER FWL00938 (“the asset”)”
4. The Applicant be
ordered to store the asset pending finalisation of the main action;
5. The Applicant
shall attend to:
5.1.
Independently value the asset
(“the
valuation”);
5.2.
Store same at a place of safe keeping
(“the
storage”);
5.3. Debit the First
Respondent’s account with the Applicant with account number
3[...] with the costs reasonably incurred
and incidental to the
attachment, valuation, transport and storage of the asset.
AND
6. Costs of suit on
the attorney and client scale;
7. Further and/or
alternative relief.
[2] Mr J C Viljoen
and Ms T Colyn respectively represented the applicant and the first
respondent when the matter was argued.
BRIEF FACTS
[3] The applicant
alleges that the first respondent and Barloworld South Africa (Pty)
Limited (Barloworld), acting through its Handling
Division, concluded
a Rental and Maintenance Agreement of a certain CAT Skidsteet IT 14,
with serial number FWL00938 (the asset/equipment).
This is not in
dispute. Further, according to the applicant, Barloworld subsequent
to the conclusion of the agreement, ceded all
its rights under the
Rental and Maintenance Agreement to the applicant in terms of a
Master Cession and Sale Agreement (the written
cession agreement).
There seems to be a dispute regarding this contention. The applicant
has brought an action against the first
respondent, the second
respondent and the third respondent as first defendant, second
defendant and third defendant respectively
under case number
12145/2013. The applicant, as plaintiff in the matter, seeks
judgement against the first defendant for:
“
(a),
confirmation of cancellation of the agreement;
(b) Return of the
equipment subject to the plaintiff evaluating and selling by way of
public auction, the first defendant’s
account to be credited
with the nett proceeds of the sale, the first defendant to be paid
the nett credit resulting, if any. Against
the first, second and
third defendants, jointly and severally the one paying the other to
be absolved for:
(c) Payment of R1
399 901.26;
(d)
Interest on the aforesaid amount of R1 399 901.26 at the rate of
15.5% per annum a
tempore
morae
to
date of final payment;
(e) Costs of suit on
the attorney and client scale;
(f) Further and/or
alternative relief’
The action is
defended and the defendants have pleaded. There are amendments in the
action. I must point out that the plaintiff
brought an application
for summary judgment which was not proceeded with. Leave to defend
was granted and pleadings were exchanged.
The plaintiff, now
applicant, brought this application which is opposed by the first
respondent. The second and third respondents
(defendants in the
action) have been cited simply because they are interested parties
and no relief is sought against them.
[4] The applicant
seeks a final interdict and in the alternative an interim interdict
pending finalisation of the main action under
case number 12145/2013
for the return of the equipment.
[5] The applicant,
in support of its application, used the summons and particulars of
claim as amended and the affidavit resisting
summary judgment
application. The pleadings and letters between the parties’
legal representatives form part of and have
been referred to in the
application. The plaintiff’s particulars of claim have been
crafted in such a way that amendments,
as pointed out by Ms Colyn,
became necessary. She refers to this as a “comedy of errors”.
I do not deem it necessary
to deal with the mistakes alluded to by Ms
Colyn, for the first respondent, as I regard the application and the
action distinguishable.
THE ISSUES
[6] These are:
6.1.
Whether the applicant has
locus
standi
to
seek the relief covered by the notice of motion and the action
instituted by the first respondent.
6.2. Whether the
action the first respondent may have against Barloworld has anything
to do with the applicant’s application
and the action against
the first respondent.
6.3. Whether the
asset/equipment forms part of the Master Cession and Sale Agreement.
This is linked to 6.1 above.
COMMON CAUSE
FACTS
[7] These are that:
1.The first
respondent and Barloworld concluded a Rental and Maintenance
Agreement. The effective date was 22 January 2012.
2. The agreement was
in respect of a CAT Skidsteer IT14 serial number FWL00938 (the
asset/equipment).
3. In or about the
first week of March 2012 the equipment was delivered to the first
respondent at its business site.
4.
On 18 September 2012 the applicant informed the respondents of the
cession
(See P196
of Index: Bundle 2 paragraph 14.1)
5.
On
4
December
2012 the respondent was furnished with a letter of demand and
cancellation of the agreement.
(P196,
Index: Bundle 2 paragraph 14.1)
6. No payment was
made by the respondents to the applicant who eventually issued
summons under case number 12144/2013 on 26 February
2013.
7. The applicant
applied for summary judgment, however, the respondents/defendants
were granted leave to defend the action on 21
May 2013.
8. It, according to
the applicant, was not necessary to file a reply which it deemed
unwarranted. The applicant did not reply.
9. The first
respondent to date has not made any payment to the applicant.
[8] It appeared that
the authority of the deponent to the founding affidavit was
challenged. This challenge was not proceeded with
when the matter was
argued.
[9]
The respondent, in the main, contends that the applicant does not
have the necessary
locus
standi
to
institute the action or to bring this application. The contention is
that the Master Cession and Sale Agreement between Barloworld
and the
applicant does not reveal that any right tittle or interest in
respect of the first respondent was ceded to the applicant.
[10] It will be
remembered that the equipment involved in this matter bears serial
number FWL00938. The Rental and Maintenance Agreement
between the
first respondent and Barloworld is Agreement No. FWL00938. Page 25,
sixth line from the top of Index Bindle 1 refers
specifically to this
agreement. Pages 37 and 48 of Applicant’s list of authorities
and salient extracts from record confirm
this. This is referred to as
deal 37 by the applicant when it deals with the cession involving
Agreement No FWL00938.
[11] The first
respondent admits that it was informed of the cession, the subject
matter in this application, on 18 September 2012.
It further admits
demand and cancellation of the agreement. This, notwithstanding, the
first respondent, at the time, never contested
or disputed the
existence of the cession.
[12] With the
evidence at the disposal of the court the first respondent cannot be
heard to say that no cession came into being
in respect of Agreement
No FWL00938 nor that the asset/equipment is covered by such cession.
[13] Ms Colyn’s
submission is that the relevant documents fail to properly deal with
the cession. The cession, according to
her, fails to mention the
first respondent; the agreement that is being ceded; to whom the
agreement is being ceded and by whom
same is being ceded. In light of
what I say in paragraphs 10, 11 and 12 above, the submission cannot
be correct.
[14] There can be no
doubt that the Master Sale and Cession Agreement was concluded
between and by the applicant and Barloworld.
This is not denied.
Also, there can be no doubt that the asset/equipment is covered by
the Master Sale and Cession Agreement. The
equipment and agreement
have clearly and properly been identified. The Master, Sale and
Cession Agreement clearly states that the
rights of ownership of the
asset/equipment are also ceded except the right title and interest to
receive maintenance payments and
VAT.
[15]
The serious challenge amounted against the applicants
locus
standi
to
litigate by way of an application and action, in my view, has no
merit.
[16] The first
respondent contends that it has a counter claim in this matter. The
question which immediately comes to mind is as
to whether the counter
claim has anything to do with the applicant. The first respondent,
here, has no problem. It is evident from
the first respondent’s
evidence that any damages claim it may have can only be against the
cedent, Barloworld, and not the
applicant. The first respondent
verbalises this in its answering affidavit. The respondent’s
answering affidavit in paragraph
11.3 says:
“
11.3
I have furthermore instructed my attorneys of record to request this
Honourable Court to stay any application and/or action
that the
Applicant has against the Respondents
pending
the finalisation of the Respondents action against
Barloworld
Handling
and
that any amount owing to the Respondents from Barloworld Handling be
set off against any claim the Applicant might have against
the
Respondents”.(my emphasis)
[17] Paragraph 11.3
raises the following:
1. that any claim
that the first respondent may have is against Barloworld.
2. it is not clear
as to whether the first respondent has finally decided to institute
the action or launch the application against
Barloworld.
3. Is it right and
proper to stop the applicant from proceeding with the action under
case number 12145/2013 and this application?
4. why should there
be set off of any amount Barloworld may owe the respondents against
any claim the applicant might have against
the respondents?
[18]
The doctrine of set-off cannot be applied in this application or the
action under case number 12145/2013. The reason is simple
and this is
that set-off only applies when two parties are mutually indebted to
each other, the debts are equal and fully due
(Schirhout
v Union Government Minister Of Justice
1926 AD 286
289-290)
Set-off
is a method applied when contractual and other debts may be
extinguished. Set off simply means that two people are indebted
to
each other
(Joint
Municipal Pension Fund (TVL) v Pretoria Municipal Pension Fund
1969
(2) SA 78
(T); S.W.A. Amalgamated Afslaers (EDMS) Bpk v Louw
1956 (1)
SA 346
(A) at 354 and Public Carriers Association and Others v Tolcon
Road Concessionaries and Others (Pty) Ltd
1989 (4) SA 574
(N) at
589G-590C.
There
is no indebtedness between the first respondent and the applicant.
Yes set offer could be applied if the indebtness related
to the first
respondent and Barloworld. It would be improper to stay applicant’s
action and the application until the finalisation
of the action
between the first respondent and Barloworld. The interest of justice
frowns on this.
[19] The National
Credit Act 34 of 2005 (the NCA) clearly does not apply to the
agreement which is not a lease as defined in Section
1 of the NCA.
Ownership of the asset/equipment does not pass to the first
respondent during or after the agreement. The agreement,
in terms of
Section 8 of the NCA, is not a Credit agreement. No deferred amount
is repayable and the rentals repayable do not depend
or change upon
payment of any deferred amount and interest thereon, fluctuating
during the rental period. No fee, charge or interest
is payable in
terms of the agreement. The submission that the agreement is a credit
agreement is incorrect.
[20] It is not
necessary to deal with issues which relate to Barloworld. Whether
Barloworld delivered the equipment late or the
equipment was
defective when it was delivered that has nothing to do with the
applicant.
[21]
I do not think that the applicant has properly made out a case to be
entitled to a final relief. It is true there are many
mistakes in the
applicants particulars of claim under case number 12145/2013. These,
however, do not stand in the applicant’s
way to obtain an
interim relief. No real, genuine and bona fide disputes of fact have
been demonstrated which would make it difficult
for this court to
grant such a relief.
(Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA))
[22] All the
applicant seeks in the alternative is the preservation of the
asset/equipment which, if not preserved, may deteriorate
in value.
Preservation of the asset/equipment pending finalisation of the
action under case number 12145/2013 serves dual purposes.
First, it
is to the benefit of the first respondent should it succeed in the
action. Second, it also helps the applicant which,
if successful,
will have had the equipment properly preserved regard being had to
the fact that the first respondent has the equipment
and uses it
without paying for such use.
[23]
Although it is not clear whether the first respondent has by now
instituted an action against Barloworld, nothing stopped it
from
doing that. The first respondent may decide not to institute the
action but that does not mean that the applicant should wait
for
that. Even if the decision is to proceed by way of action the
applicant is perfectly within its right to proceed with the action
and the application. There is no counter claim applicable in both
instances. It is prudent and desirable that the asset/equipment
be
preserved and the interim relief, in that regard, becomes necessary.
(SA Taxi
Securitisation (Pty) Ltd v Chesane
2010 (6) SA 557
(GSJ) SA Taxi
Securitisation (Pty) Ltd v Soya 2012 JDR 2062 (GSJ) at [35], [36],
[37], [38] and [39]
[24] Clearly, the
defences that the first respondent has raised, in my view, do not
amount to a bar to the interim relief that the
applicant seeks in the
alternative.
[25]
The first respondent has admitted that it was informed about the
Master Sale and Cession Agreement; It has received the demand;
and
was informed of the cancelation of the agreement. This
notwithstanding, the first respondent admits that it has not paid the
applicant while possessing and using the asset/equipment which is
very expensive. The first respondent contends that the applicant
has
never become the owner of the equipment and avers that the applicant,
as a result, has no
locus
standi.
I
have, above, demonstrated that this contention is clearly wrong. For
now, it does not look like the first respondent is prepared
to pay
the rental amounts.
This,
because of its wrong perception regarding the applicant’s
locus
standi
and
the ownership of the equipment.
The applicant failed
to prove that it is entitled to storage costs.
[26] The applicant,
in my view, has successfully made out a good case for the interim
relief that it seeks in the alternative.
[27] The applicant
failed to demonstrate that it is entitled to costs on the attorney
and client scale.
In the result, the
following order is made:
Pending the outcome
of the applicants action under case no. 12145/2013:
1. The first
respondent is ordered to forthwith return to the applicant the
asset/equipment being:
CAT SKIDSTEER IT14,
SERIAL NUMBER FWL00938
Failing such return
the sheriff of the court is duly authorised to attach the equipment
and to hand same to the applicant.
2. The applicant is
ordered to store the asset/equipment pending finalisation of the main
action under case no. 12145/2013.
3. The applicant
shall:
3.1.
Independently value the asset/equipment, (“the valuation”)
3.2. Store the
asset/equipment at a place of safe keeping (“the storage”)
3.3. Debit the
first respondent’s account number 332500810001 which the first
respondent has with the applicant with the costs
reasonably incurred
and incidental to the attachment, valuation and transportation of the
equipment.
4. Costs of suit.
M.W.MSIMEKI
JUDGE OF THE
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE
APPLICANT: AD J C VILJOEN
INSTRUCTED BY:
STUPEL & BERMAN
COUNSEL FOR THE
RESPONDENT: ADV COLYN
INSTRUCTED BY:
VAN DER MERWE & ASSOCIATE
DATE OF HEARING:
18 NOVEMBER 2014
DATE
OF JUDGMENT: