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[2015] ZAFSHC 188
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Crots v Hannes Muller Voerkraal and Others (4540/2015) [2015] ZAFSHC 188 (14 October 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Application Number:
4540/2015
In the matter between:
PIETER FREIRICH
GERHARUS
CROTS
Applicant
and
HANNES MULLER
VOERKRAAL
1
st
Respondent
COLEEN SEVENSTER
N.O.
2
nd
Respondent
HENNIE SEVENSTER
N.O.
3
rd
Respondent
JAN DIRK HEYNS
N.O.
4
th
Respondent
HENCO SEVENSTER
5
th
Respondent
JUDGMENT
BY
:
BOKWA, AJ
HEARD
ON
:
8 OCTOBER 2015
DELIVERED
ON
:
14 OCTOBER 2015
A
INTRODUCTION
[1]
The Applicant is a self-employed farmer conducting a farming business
at the farm
Damschrub, Kroonstad District. The
First Respondent is Hannes Muller Voerkraal a business whose core
business
is selling livestock with its principal place of business at
Hansie Muller Building, Engelbrecht Street, Viljoenskroon. The
Second, Third and Fourth Respondents are trustees of a trust called
Senekal Bemarkingstrust t/a 7Ster Bemarking. They are
cited in
these proceedings in their capacity as trustees of the said trust.
The Fifth Respondent is a manager of the First
Respondent as well as
the Senekal Bemarkingstrust t/a 7Ster Bemarking.
[2]
The Applicant brought an Application on an ex parte basis on the 22
nd
of September 2015 in which he obtained an order for a relief that the
First Respondent be restrained and interdicted from paying
an amount
of R650 000.00 (SIX HUNDRED AND FIFTY THOUSAND RAND) over to the
Senekal Bemarkingstrust t/a 7Ster Bermarking or
any of its trustees
namely the Second to the Fourth Respondent, or any account nominated
by the Second to the Fourth Respondent.
Furthermore that
the First Respondent be restrained and interdicted from paying an
amount of R650 000.00 (SIX
HUNDRED AND FIFTY THOUSAND RAND) over
to the Fifth Respondent, or any account nominated by the Fifth
Respondent. The Respondents
be ordered to pay the costs of this
Application jointly and severally, the one paying the other to be
absolved, only if the Application
is opposed.
[3]
Upon being served with the Court Order the Respondents applied in
terms of Rule 6(12)(c)
for the reconsideration of the ex parte order
in terms of which the Respondent were called upon to show cause why
an interim order
granted against them on the 22
nd
of September 2015 before Moloi J should not be made a final order of
the court.
[4]
A Rule
nisi
was granted by Moloi J returnable on the 29
th
of October 2015. The Application in terms of Rule 6(12)(c) of
the Uniform Rules of Court was set down for hearing on the
08
th
of October 2015 before me.
B
BACKGROUNG
FACTS
[5]
The order obtained by the Applicant on the 22
nd
of October 2015 had the following terms:
“
1.
Condonation is granted for non-compliance with the rules relating to
for and process regarding service
and that this application is heard
ex parte, as an urgent application in terms of the provisions of
Court Rule 6(12).
2.
A rule
nisi
is issued calling upon respondents to show cause if any, on 29
October 2015 at 09:30 or as soon thereafter as applicant’s
representation may be heard, why the following orders should not be
granted:
2.1 That 1
st
respondent is restrained and interdicted from paying an amount of
R650 000.00 (Six Hundred and Fifty Thousand Rand) over to the
Senekal
Bemarkingstrust (IT1370/1999) or any of its trustees, namely the 2
nd
to 4
th
respondents, or any other account nominated by the 2
nd
to 4
th
respondents.
2.2 That 1
st
respondent is restrained and interdicted from paying an amount of
R650 000.00 (Six Hundred and Fifty Thousand Rand) over to the
5
th
respondent, or any other account nominated by 5
th
respondent.
2.3 That
respondents be ordered to pay the costs of this application jointly
and severally, the one paying
the other to be absolved, only if this
application is opposed and only by those respondents opposing this
application.
3.
The relief in paragraph 2.1 and 2.2 above operate as an interim
interdict with immediate
effect.
4.
This application, together with the Court Order must be served on the
respondents by the
sheriff.”
[6]
A transaction was concluded on the 28
th
of May 2014 by the Applicant and the Fifth Respondent who was acting
either for the First Respondent or the Senekal Bemarkingstrust
t/a
7Ster Bemarking in terms whereof the Applicant sold livestock to the
Senekal Bemarkingstrust t/a 7Ster Bemarking or the First
Respondent.
The amount of R527 236.96 (FIVE HUNDER AND TWENTY SEVEN THOUSAND
TWO HUNDRED AND THIRTY SIX RAND AND NINETY SIX
CENT) was owed to the
Applicant by either the First Respondent or the Senekal
Bemarkingstrust t/a 7Ster Bemarking. The Fifth
Respondent
acknowledged liability to the Applicant in the amount of R422 636.48
(FOUR HUNDRED AND TWENTY TWO THOUSAND SIX
HUNDRED AND THIRTY SIX RAND
AND FOURTY EIGHT CENT).
[7]
When the Applicant did not receive his money he instructed his
attorney who made the
demand. The Fifth Respondent initially
agreed to pay the money owed with R10 000.00 (TEN THOUSAND RAND)
monthly instalments,
the balance of which would be paid with the
proceeds of a Volkswagen Truck which the Fifth Respondent intended to
sell. Subsequently
the Volkswagen Truck which was offered as
security was indeed sold but no monies were paid, to the applicant.
[8]
It came to the knowledge of the Applicant that the Fifth Respondent
is not a trustee
of the trust. Applicant is now uncertain who
will now be responsible for the debt owed to him. In the
circumstances
and upon hearing that the Respondent were due to
receive monies in respect of the livestock sold Applicant attached
the said funds
in order to obtain security pending the outcome of the
litigation action which the Applicant has already initiated in this
court
against the Respondents.
C
ISSUES
TO BE DETERMINED
[9]
It must be determined whether the Applicant has proven the
requirements for a final
interdict as set down in the seminal
decision of
Setlogo v Setlogo
in order to obtain the
relief it seeks, this being:
a)
A clear right;
b)
An injury actually committed or reasonably apprehended;
c)
The absence of any other satisfactory remedy available to the
Applicant.
D
THE
LAW
[10] The interdict in
question is an anti-dissipation interdict. To succeed the
Applicant must show in addition to a well
granted apprehension of
irreparable harm, that the Respondent has assets within the
jurisdiction of the court, has no
bona
fide
defense against the Applicant’s contingent right, and intends
to defeat the Applicant’s claim or render it hollow by
dissipating or secreting the asset.
[1]
[11] In the
Knox
v D’Arcy Ltd v Jamieson
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 373D – I the Appellate Division left
open the question whether, in principle and on authority, such an
interdict should
be granted in cases where the respondent is in good
faith disposing of his assets, or threatening to do so, and has no
intent to
render the applicant’s claim nugatory.
[12] In the same case EM
Grosskopf JA stated as follows at 372G – I:
“
The question which arises from
this approach is whether an applicant need show a particular state of
mind on the part of the respondent,
ie that he is getting rid of the
funds, or is likely to do so, with the intention of defeating the
claims of creditors. Having
regard to the purpose of this type
of interdict, the answer must be, I consider, yes, except possibly in
exceptional cases. As
I have said, the effect of the interdict is to
prevent the respondent from freely dealing with his own property to
which the applicant
lays no claim. Justice may require this
restriction in cases where the respondent is shown to be acting mala
fide with the intent
of preventing execution in respect of the
applicant's claim. However, there would not normally be any
justification to compel a
respondent to regulate his bona fide
expenditure so as to retain funds in his patrimony for the payment of
claims (particularly
disputed ones) against him.”
[13]
The Respondent has brought an Application for reconsideration in
terms of Rule 6(12)(c) in terms
of the Uniform Rules of Court.
The Rule was considered in ISDN Solutions (Pty) Ltd v CSDN Solutions
CC and others
1996 (4) SA 484
(W) where Faber AJ said the following
at 486H – 487C.
[2]
“
The Rule has been widely
formulated. It permits an aggrieved person against whom an order was
granted in an urgent application to
have that order reconsidered,
provided only that it was granted in his absence. The underlying
pivot to which the exercise of the
power is coupled is the absence of
the aggrieved party at the time of the grant of the order.
Given this, the dominant purpose of
the Rule seems relatively plain. It affords to an aggrieved party a
mechanism designed to redress
imbalances in, and injustices and
oppression flowing from, an order granted as a matter of urgency in
his absence. In circumstances
of urgency where an affected party is
not present, factors which might conceivably impact on the content
and form of an order may
not be known to either the applicant for
urgent relief or the Judge required to determine it. The order in
question may be either
interim or final in its operation.
Reconsideration may involve a deletion of the order, either in whole
or in part, or the engraftment
of additions thereto.”
E
APPLICATION
OF THE LAW TO THE FACTS
[14]
It is submitted on behalf of the Applicant as follows on page 16 and
17, paragraph 11.1 to 11.7
of the applicant’s affidavit:
“
11.1 I am
personally aware that the 5
th
Respondent and/or Trust incur many expenses.
11.2 I have
seen that the 5
th
Respondent is driving a new Mercedes ML 500 SUV, which he starter
driving during March 2015.
11.3 I have
also seen that the 5
th
and 3
rd
Respondents, as well as an employee of the Trust are driving new
bakkies during May 2015.
11.4 The 5
th
Respondent’s wife also started driving a new vehicle around
September 2014.
11.5 The 5
th
Respondent’s wife furthermore consistently places photos and
posts on her facebook account of holidays they take to various
places.
11.6
Furthermore, the 5
th
Respondent and/or Trust did not honour the undertaking to pay me when
the truck is sold.
11.7 I
respectfully aver that I have a reasonable apprehension that I will
not be paid, even if I obtain
judgment in the action proceedings,
thus I request the Honourable Court to order that the money be
retained as security by the
1
st
Respondent.”
[15]
The fundamental question is whether or not the Applicant has
established a “clear right”.
The Applicant submits
that he has established a clear right because he has proven that the
Respondents admitted that it owes them
money.
[16]
The word “clear right” relates to the degree of proof
required to establish the right.
In order to establish a clear
right the Applicant has to prove on a balance of probability the
right he seeks to protect.
[3]
[17]
Advocate Reinders implores me to make a finding that with “Mareva
injuctions” there
would normally not be any justification to
compel a respondent to regulate his bona fide expenditure so as to
retain funds in his
patrimony for payment for claims against him.
Furthermore he submitted on behalf of the Respondent that these kind
of interdicts
will only be granted by the court where it is shown
that the Respondents were acting male fide with the intent in
preventing execution
in respect of the Applicants claim. In
casu
he argued that the Applicant had failed to demonstrate that.
[18]
“
If money is
sought to be interdicted pending an action for its recovery, it must
be shown that the money sought to be interdicted
is identifiable with
or earmarked as a particular fund to which the applicant claims to be
entitled.”
14
Stern & Ruskin NO v Appleson
1951 (3) SA 800
(W) at 811 –
812.
[4]
[19]
It was submitted by Mr. Reinders that the Applicant failed to
identify the money it claims is
owed with a particular fund. I
am persuaded by his submissions and I agree.
[20]
In view of the a foregoing I am satisfied that the first to fifth
Respondent are entitled to
have the order of Moloi J set aside.
[21]
In the circumstances I make the following order:
(a)
The Order
made by Moloi J on the 22
nd
of September 2015 is set aside;
(b)
The
Applicant is ordered to pay the costs of the Respondents.
________________
I.R.O BOKWA, AJ
On behalf of the
applicant:
Adv: Berry
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of the
respondent:
Adv: Reinders
Instructed by:
Rosendorff Reitz Barry
BLOEMFONTEIN
[1]
RS v MS
2014 (2) SA 511
(GJ) at 513J
– 514C).
[2]
ISDN Solutions (Pty) Ltd v CSDN
Solutions CC and others
1996 (4) SA 484
(W) where Faber AJ said the
following at 486H – 487C.
[3]
Nienaber v Stuckey
1946 AD 1049
at
1053-4.
[4]
14 Stern & Ruskin NO v Appleson
1951 (3) SA 800
(W) at 811 – 912.