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[2015] ZAGPPHC 470
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Mvelas & Mahwana Construction CC and Others v Absa Bank Limited (7881/14) [2015] ZAGPPHC 470 (26 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: 7881/14
In
the matter between
MVELAS
& MAHWANA CONSTRUCTION
CC
First
Plaintiff
A4
CONSULTANCY
CC
Second Plaintiff
MABULELA
RAIL &
INFRASTRUCTURE
SOLUTIONS
CC
Third Plaintiff
NQAYIZIVELA
TRADING
CC
Fourth
Plaintiff
PHUPHA-NJALO
TRADING SERVICES
CC
Fifth Plaintiff
LEATILE
TRADING
CC
Sixth Plaintiff
BAFAMADI
PROPERTY
DEVELOPMENT
CC
Seventh Plaintiff
And
ABSA
BANK LIMITED
Defendant
JUDGMENT
BAM
J
1.
On 31January 2014 the plaintiffs issued summons against the
Defendant, ABSA, claiming payment of R l 240 046 70 plus interest.
2.
The said amount held by ABSA was transferred to another account on 11
October 2013.
3.
It is averred by the plaintiffs that ABSA, contrary to the provisions
of a Court order dated 12 March 2013, paid out the
said amount. ABSA
defends the action and denies the averments.
4.
The only question for this Court to adjudicate, as agreed between the
parties during a pre-trial held on 22 April 2015,
is whether ABSA was
entitled to pay out the said amount as a result of the lapse of the
order of 12 March 2013 . A separation of
the issues in terms of Rule
33(4) is therefore granted.
5.
The order of 12 March 2013, issued from this court, citing the
plaintiffs as applicants and ABSA as second respondent,
reads as
follows:
"1. THAT pending
action proceedings to be instituted by the applicants against the
first respondent;
1.1
THAT the first and third respondent be interdicted and restrained
from requesting, withdrawing or accepting
any payment from
the second
respondent from the funds held in account number 4067798268 held in
favour of the first respondent at the second
respondent's Midrand
branch (the "interdicted account") to a maximum of R2 000
000.00 (two million Rand) together
with interest at 15.5% a tempore
morae to date of payment, or such lesser amount as may currently be
held or owing by the second
respondent or in favour of the first
respondent.
1.2
THAT the second respondent be interdicted and restrained from making
any payment of amounts due to the first
respondent, (or any third
party in respect of any amount due to the first respondent), from the
funds held in the interdicted account,
up to a maximum of R2 000
000,00 (two million Rand), together with interest 15.5 % per annum a
tempore morae to date of payment,
or such lesser amount as may
currently be held by the second respondent to or in favour of the
first respondent;
2. THAT action
proceedings be instituted by the applicant within a period of 15
(fifteen) days from the date of granting this
order;
3. THAT the
first respondent and/or the third respondents pay the costs of this
application on an attorney and client
scale."
6.
It is common cause that the said order, served on ABSA on the same
day it was issued, provided that the proceedings, envisaged
in the
order, had to be instituted against Citra Shine 606 Trading CC,
("Citra"). Litigation between these parties was
therefore
within the contemplation of all involved
7.
On 4 April 2013 under case number 19961/13 the plaintiffs issued the
summons against Citra and on 9 April 2013 the summons
was served.
8.
A simple calculation reveals that the last day for instituting the
action, counting 15 court days from 14 March 2013, would have
been 5
April 2013. The summons was served on 9 April 2013.
9.
On 29 April 2013 the plaintiffs applied for default judgement against
Cipra which was eventually granted on 29 November
2013.
10.On
2 December 2013 the plaintiffs' attorney discovered that the amount
in question had already on 11October 2013 been paid out
by ABSA .
11.ABSA's
main argument therefore is that the interdict had lapsed before
plaintiffs had instituted the action against Cipra and,
consequently,
that it was entitled to transfer the money.
12.There
can be no doubt that the action instituted by the plaintiffs against
Cipra, namely on the date the date of service, was
out of time,
albeit only a few days. See
Finishing
Touch 163 v
BHP Billiton Energy
Coal SA
2013 (2) SA 204
, pars.
[19] and [20].
13.This,
however, is not where the matter ends. What is of importance is that
ABSA was not a party in the action between the plaintiffs
and Cipra.
Accordingly, whether the action was instituted after the 15 days
stated in the court order of 12 March 2013, and whether
the action
was void or voidable, was a question to be addressed by the
plaintiffs and Cipra during their litigation. Although ABSA
was
involved in that it held the money in trust in its capacity as
banker, it had nothing to do with the litigation between the
plaintiffs and Citra.
14.
Accordingly, short of a court order declaring the action void and a
nullity, ABSA, cannot hide behind its own assumption that
the action
had lapsed. The matter between the plaintiffs and Cipra were still
pending at the time and the issues between them still
had to be
adjudicated upon. There is also no indication that ABSA was in any
way prejudiced by the initial court order.
15.
If ABSA was indeed considered and was of the opinion that the court
order restricting it to pay out the money had lapsed at
the time the
action was instituted, it went unexplained why ABSA waited more than
6 months to transfer the money. It is also not
explained why ABSA at
that stage decided to transfer the money.
16.
lt follows that it cannot be found in favour of ABSA that the
particulars of claim in question, even when issued after the
expiration of the 15 days provided for in the court order of 12 March
2013, had automatically lapsed at any time. ABSA was indeed
in breach
of the said order.
ORDER
1.
The particulars of claim issued by the plaintiffs, as envisaged in
the Court Order of 12 March 2013, have not lapsed;
2.
The interdict of 12 March 2013, restraining ABSA from transferring
the amount of Rl 240 046.70, had not lapsed at
the time of the
transfer on 11October 2013.
3.
Costs to be costs in the cause.
A
J BAM JUDGE OF THE HIGH COURT
25
May 2015