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[2015] ZAFSHC 45
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Tshinaki Septic Tankc Cleaners (Pty) Ltd v Somhlalo and Others (988/2015) [2015] ZAFSHC 45 (10 March 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 988/2015
In the matter
between
TSHINAKI
SEPTIC TANKC CLEANERS (PTY) LTD
….......................................................
Appellant
And
MLUNGISI
EPHRAEM SOMHLALO
….........................................................................
1
st
Respondent
VICTOROMPIE
ENTERPRISE CC
…...........................................................................
2
nd
Respondent
MAXIMUS
EARTHWORKS (PTY) LTD
…....................................................................
3
rd
Respondent
t/a PHEZULU
PLANT
JUDGMENT
BY:
MOCUMIE,
J
HEARD
ON:
09
MARCH 2015
DELIVERED
ON
:
10
MARCH 2015
MOCUMIE, J
[1] The applicant
approached this court on an urgent ex parte basis on 3 March 2015 for
an order in the following terms:
‘
1.
The
applicant’s non- compliance with the time periods, service and
forms provided for in the uniform rules of court be condoned
and that
the matter be heard by a Judge in chambers as urgent in terms of Rule
6 (12)(a) of the Uniform Rules of Court
2. That pending
action to be brought by the applicant, a rule nisi is issued calling
upon the respondents to show cause on 26 March
2015 at 9h30 or soon
as thereafter as counsel may be heard why a final order should not be
made in the following terms:
2.1 The respondents
are interdicted from ceding, pledging, alienating, disposing or
encumbering in any way any of their rights to
the Volvo BL61 TBLs
with registration number DJP 399 FS and DLD 805 FS pending
institution of an action by the applicant against
the respondents’
in the Fee State Division, Bloemfontein;
2.2 The
respondents’, in particular the third respondent, are directed
to deliver the TLBs mentioned in paragraph 201 to the
sheriff of the
court, Welkom to be kept in his custody and possession pending the
final determination of the action to be instituted
by the applicant;
2.3 Failing
compliance by the respondents’ with paragraph 2.2, the sheriff
of the court, Welkom is authorized and directed
to attach the TLBs
mentioned in paragraph 2.1 and keep them in his custody and
possession pending the final determination of the
action to be
instituted by the applicant.
2.4 The sheriff’s
costs are reserved for determination by the court hearing the action;
2.5 The applicant
must institute the action within thirty (30) days of the granting of
the order.
2.6 The first and
second respondent are ordered to pay the costs of this application,
jointly and severally
3. The provisions of
paragraphs 2.1, 2.2 and 2.3 shall operate with immediate effect
pending the return date.
4. The application
papers, as well as this order, are to be served upon the respondents
in terms of the Rules of Court.
5. The first and
second respondents’ are ordered to pay the costs of this
application, jointly and severally, the one paying
the other to be
absolved.
6. In the event of
opposing, the third respondent is ordered to pay the costs of this
application, jointly and severally with the
first and second
respondents’, the one paying the others to be absolved.
7. Further and /or
alternative relief.
[4] Van Zyl J, who
was ceased with the matter, granted the following order:
‘
1.The
applicant’s non- compliance with the time periods, service and
forms provided for in the uniform rules of court be condoned
and that
the matter be heard by a Judge in chambers as urgent in terms of Rule
6 (12)(a) of the Uniform Rules of Court
2. That pending
action to be brought by the applicant, a rule nisi is issued calling
upon the respondents to show cause on 26 March
2015 at 9h30 or soon
as thereafter as counsel may be heard why a final order should not be
made in the following terms:
2.1 The respondents
are interdicted from ceding, pledging, alienating, disposing or
encumbering in any way any of their rights to
the Volvo BL61 TBLs
with registration number DJP 399 FS and DLD 805 FS pending
institution of an action by the applicant against
the respondents’
in the Fee State Division, Bloemfontein;
2.2 The
respondents’, in particular the third respondent, are directed
to deliver the TLBs mentioned in paragraph 201 to the
sheriff of the
court, Welkom to be kept in his custody and possession pending the
final determination of the action to be instituted
by the applicant;
2.3 Failing
compliance by the respondents’ with paragraph 2.2, the sheriff
of the court, Welkom is authorized and directed
to attach the TLBs
mentioned in paragraph 2.1 and keep them in his custody and
possession pending the final determination of the
action to be
instituted by the applicant.
2.4 The sheriff’s
costs are reserved for determination by the court hearing the action;
2.5. The applicant
must institute the action within thirty (30) days of the granting of
the order.
2.6. The first and
second respondent are ordered to pay the costs of this application,
jointly and severally, the one paying the
other to be dissolved.
2.7 In the event of
opposing, the third respondent is ordered to pay the costs of this
application, jointly and severally with the
first and second
respondents’, the one paying the others to be absolved.
3. The provisions of
paragraphs 2.1, 2.2 and 2.3 shall operate with immediate effect
pending the return date.
4. The application
papers, as well as this order, are to be served upon the respondents’
in terms of the Rule of Court.
5. The first and
second respondents’ are ordered to pay the costs of this
application, jointly and severally, the one paying
the other to be
absolved.’
[5] On 6 March 2015
third respondent anticipated the return date having served a notice
on the applicant. On 9 March counsel for
both applicant and third
respondent argued this matter.Although third respondent anticipated
the return date, the onus still rested
on it to show on a balance of
probabilities that it was entitled to the relief it sought.
[6] Applicant’s
case on the papers is that first and second respondent (the
respondents) were not entitled to cancel the original
sale agreement
it had with the two in respect of the TLBs referred to. If anything
the cancellation of such agreement was unlawful
as respondents did
not have any agreement with it on repairs and storage of the TLBs.
Consequentially, the respondents did not
have the right to retain
possession of the TLBs, dispose or alinate same to its prejudice. It
maintained that it had not breached
any of the terms of the original
sale agreement.
[7] In the opposing
affidavit, deposed to by Mr Cronje, he averred that third respondent
bought the TLBs from the respondents when
the original sale agreement
between applicant and respondents was cancelied.lt paid the full
purchase price based on the amount
respondents owed third respondent
arising from services rendered and the amount which had been offered
to applicant as purchase
price. The TLBs were delivered to it and the
sale was perfected. Third applicant had since become the rightful
owner of the TLBs
and had even leased them out as part of its
business operation.
[8] Advocate
Monnahela, for applicant, urged me to come to the conclusion that the
sale agreement between the three respondents
(the second sale
agreement) was a simulated agreement .He further urged me to find
that such sale agreement was concluded fraudulently
based on the
different signatures on the original sale agreement (between
applicant and the respondents) and the second agreement.
In his mind,
although appreciating that the issue would have to be properly
ventilated in the action the applicant intends to institute,
the
signatures were so different for me to draw the only conclusion that
they were forged. On that basis, he submitted, the respondents
were
not entitled to cancel the agreement between the three.
[9] There is a
fundamental problem with applicant’s case as argued in court.
Primariy, the case argued in court is not as
on the papers before me.
Mr Monnahela could not direct me, as challenged by Mr Grobler for
third respondent, to any evidence that
pointed to fraud or forgery or
for that matter simulation of the second sale agreement ,ie apart
from the obviously different signatures
on the original sale
agreement and second sale agreement purported to be of first
respondent.
[10] In the worst
case scenario ,as Mr Monnahela strenously argued, the second sale
agreement was concluded upon the rule nisi been
served on the
respondents in order to prevent the applicant from exerting its
rights, including the right to specific performance
and enrichment
lien in terms of the original sale agreement.That argument too is
patently flawed because the rule nisi was granted
on 3 March 2015.The
second sale agreement was concluded on 20 January 2015 ex facie OP1
appended to third respondent’s opposing
papers.
[11] Mr Monnahela
argued that Mr Cronje was aware of the dispute between the applicant
and the respondents on the cancellation of
the original sale
agreement but nonetheless proceeded to conclude the second sale
agreement. Thus he could not be heard to say
that his ownership was
lawful against the whole world including the applicant as Mr Grobler
argued. According to him the doctrine
of notice must operate against
third respondent. He submitted that applicant’s possession must
be restored until such stage
that the case is properly ventilated in
an action to be instituted. If this court does not restore
applicant’s possession,
it will be prejudiced considering that
the case to be instituted may take two to three years to be finalised
in the ordinary course
of the court roll of civil trials in
general.The issue of matters taking two to three years to enrol
belongs in the past since
the pretrial processes have been introduced
in this Division during 2014. So,that argument will not stand.The
TLBs are insured
and will be kept in good condition as third
respondent confirmed without any qualms from applicant.
[11]
On the doctrine of notice the Supreme Court of Appeal in
Meridian
Bay Restaurant v Mitchell
2011
(4) SA 1
(SCA) had this to say:
‘
[14]
Under the doctrine of notice,
someone
who acquires an asset with
notice
of a personal right to it
which
his predecessor in title has granted to another, may be held bound to
give effect thereto. Thus a purchaser who knows that
the merx has
been sold to another, may, in spite of having obtained transfer or
delivery, be forced to hand it over to the prior
purchaser. Reverting
to my earlier example: if C had purchased with knowledge of the prior
sale to B, B would be entitled to claim
that the transfer to C be set
aside and that transfer be effected from A to B, or B may perhaps
even claim transfer directly from
C.’
(My
emphasis)
[12]
In motion proceedings parties stand by their case on the papers.In
the event that a party introduces new evidence which is
detrimental
to the other’s case,the party who will be prejudiced may ask
the court to serve and file replying affidavits
to rebut such
evidence
1
.That
is the remedy the applicant had so as to be granted an opportunity to
reply to the averments made in third respondent’s
opposing
affidavit.
2
As correctly contended, and applying the
Plascon
Evans
rule
3
robustly, I am bound by the unrefuted version put by third respondent
in its opposing affidavit i.e. That it bought the TLBs from
the
respondents upon the original sale agreement between applicant and
respondents being cancelled. The TLBs were delivered upon
payment of
the purchase price. It is now the rightful owner of the TLBs. As
owner, its rights take precedence above all others
particularly
personal rights such as those claimed by the applicant.
[12] In the absence
of any evidence on the papers, I may suspect as I do, but I cannot
find that the second sale agreement between
the respondents and third
respondent was fraudulent and concluded upon receipt of the rule nisi
with the sole purpose to frustrate
the applicant from exercising its
legal options under the original sale agreement.
[13]
However that is no the end of the case.As I understood Mr Monnahela
to finally submitt,albeit begrudgingly so, if applicant’s
case
sees no light of the day light on the submissions made in respect of
the allegations of fraud or forgery,third respondent
cannot escape
the application of the doctrine of notice. I have considered what Mr
Grobler has strenously argued that in our law
‘a real right
generally prevails over a personal right (even if the personal right
is prior in time) when they come into
competition’
4
but I must say, I am bound by the decision of the Supreme court of
Appeal in
Meridian
Bay Restaurant
5
as
quoted in the above paragraph to the effect that third respondent had
purchased the TLBs with knowledge of the prior sale to
applicant.On
that basis alone,applicant is entitled to claim that the transfer to
third respondent be set aside and that transfer
be effected from
respondents to applicant and may perhaps even claim transfer directly
from third respondent.
[14] In the result,
I make the following order.
Order
1. The rule nisi
granted by Van Zyl, J on 3 March 2015 is hereby confirmed.
2. Costs to follow
the cause.
B. C. MOCUMIE, J
On behalf of the
applicant: Adv O.l Monnahela/ Adv L. Mfazi
Instructed by:
Modise & Modise
Attorneys
Bloemfontein
On behalf of 3
rd
Respondent: Adv. S Grobler
Instructed by:
Peyper Attorneys
Bloemfontein
1
Bader
v Weston
1967
1 SA 134
(C).
2
Rule
6(5)(e).
3
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
SA
623 (A) 634H-635C
4
Meridian
Bay Restaurant v Mitchell
2011
(4).SA 1 (SCA)
at
para
12
5
Meridian
Bay Restaurant v Mitchell
2011
(4) SA 1
(SCA)
at
para 12 with reference to Hassam v Shaboodien
1996
(2) SA 720
( C) at 724H-I;FDJ Brand
Knowledge
and Wrongfulness as Elements of the Doctrine of Notice.