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[2014] ZAGPPHC 299
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Balintulo v Q-Hold (Pty) Ltd and Others (63884/11) [2014] ZAGPPHC 299 (12 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO: 63884/11
DATE: 12 MARCH
2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
BALINTULO,
LINDIKHAYA
COLIN
....................................................................................
APPLICANT
And
Q-HOLD (PTY)
LTD
......................................................................................................
1
st
RESPONDENT
GXOYIYA, THEMBA
ERROL
....................................................................................
2
nd
RESPONDENT
MAKHAFOLA,
RICHARD
..........................................................................................
3
rd
RESPONDENT
JOUBERT, STEPHENS
PIERRE N.O.
…..................................................................
4
th
RESPONDENT
JOUBERT, DIANE
N.O.
…..........................................................................................
5
th
RESPONDENT
JUDGMENT
KGANYAGO
AJ
[
1 ] The applicant brought an application against the respondents for
the relief set out in the notice of motion as follows:
1.1 Judgment is
granted against the first to fifth respondents jointly and severally
the one paying the others to be absolved in
the sum of R3 448 012. 86
(three million four hundred and forty-eight thousand and twelve rand
eighty six cents) together with
interest at the rate of 15.5% per
annum calculated from 24
th
October 2012 to date of final
payment;
1.2 The first to
fifth respondents are ordered to pay the costs of this application on
attorney and own client scale jointly and
severally the one paying
the others to be absolved;
1.3 Granting such
further and/or alternative relief as may be just under the
circumstances.
[2] The first
respondent has brought a counter application against the applicant
for the relief as set out in their application
as follows:
2.1 That the first
respondent be ordered to make payment to the applicant in the amount
of R3 448 012. 86;
2.1 That payment of
the amount in prayer 1 shall be effected through seventeen monthly
instalments in the amount of R200 000. 00
each and one final
instalment in an amount of R48 012. 86 with the first instalment
payable on the first day of the calendar month
immediately following
on this order and monthly thereafter on or before the first day of
every consecutive calendar month alternatively
in such manner as
directed by the court in terms of prayer 4 of the court order dated
25
th
May 2012;
2.3 That the
applicant be ordered to pay the costs of the counter application only
in the event of opposition;
2.4 Further and/or
alternative relief.
[3] This application
originates from an application in which the applicant was seeking to
wind up the respondents. The parties reached
an agreement concerning
their dispute. The draft order was prepared and it was made an order
of court before His Lordship Mr Justice
Phatudi. The order reads as
follows:
“
Having
read the documents filed of record, heard counsel, considered the
matter and having been informed of the agreement between
the parties,
the following order is made an order of court:-
3.1 The first to
fifth respondents, jointly and severally are to purchase in terms of
section 163(2) (g) of the Companies Act 71
of2008 (“The
Companies Act”), the applicants shareholding in the first
Respondent at a value to be determined in accordance
with the
provisions of section 163 (2) (i) of the Companies Act, by an
independent auditor appointed by the Public Accounts ’
and
Auditor’s Board of the Republic of South Africa which
appointment is to be made within 15 days of the date of this order;
3.2 The parties
to this application shall provide their full cooperation to the
independent auditor and to all things necessary
in order for him/her
to arrive at a proper and accurate determination of the value of the
applicant’s shareholding in the
first respondent including
providing him/her with such access to financial records of the first
Respondent and/or its subsidiaries
as he/she deems necessary in order
to discharge his/her obligations in terms of this order;
3.3 The
determination of the independent auditor shall be final and binding
on the parties;
3.4 Any party is
entitled to approach the court for such directions as may be
necessary regarding the execution and implementation
of the relief
sought in paragraph 1 above;
3.5 The costs of
this application reserved for determination at a later stage;
3.6 In the event
of any of the respondents frustrating, in any manner or form
whatsoever, the implementation of paragraph 1 above,
the applicant is
entitled to approach the court for an order directing that the first
respondent be wound up and placed in in the
hands of the Master of
the Court in terms of Section 8 (1) (d) (iii) of the Companies Act on
the grounds that it is just and equitable
to do so and shall have the
right to supplement his founding affidavit to the extent necessary;
3
.7
Should the
applicant decide to approach this Honourable Court as contemplated in
prayer 6 above, then in such event:
3.
7
.1
The applicant shall do so on not less than 5 Court days written
notice to the respondents;
3.7.2 After the
applicant has supplemented its founding affidavit, as the case may
be, the Respondents shall have 15 days to file
their answering
affidavit and applicant will have 10 days to file his replying
affidavit, if any.
[4] An auditor was
appointed and the shares were valued at R3 500 000. 00. Both parties
were jointly liable to the costs of the
auditor. The applicant’s
share of the auditor’s fee amounted to R51 987. 14. The
applicant share of the auditor’s
costs was paid by the
respondents and a deduction was made from the capital amount leaving
a net balance of R3 448 012. 86.
[5] The main dispute
now is about the manner of payment of R3 448 012. 86. According to
the applicant’s view, in terms of
the court order, the
transaction was a cash sale and the respondents are supposed to pay
the full amount in one lump sum. According
to the respondent’s
view, they are entitled to approach the court for directions and
implementation of court order. The respondents
contend that this
includes payment of the applicant by instalments.
[6] The court is now
called upon to interpret the court order to determine whether the
applicant is entitled to payment of the aforesaid
amount in cash or
whether the court can give directions and order that the capital
amount be paid in instalments as suggested by
the respondents.
[7] In the case of
Engelbrecht NO and Another v Senwes Ltd (63/05) [2005] ZASCA at
paragraph 6 the court said the following:
"The
Court order in this case records an agreement of settlement and the
basic principles of the interpretation of contracts
need therefore be
applied to ascertain the meaning of the agreement. The approach to be
followed was summarised in Coopers & Lybrand
and Others
v
Bryant:
“
I
proceed to
ascertain the common intention of the parties from the language used
in the instrument. Various canons of construction
are available to
ascertain their common intention at the time of concluding the
[contract]. According to the "golden rule"
of
interpretation the language in the document is to be given its
grammatical and ordinary meaning, unless this would result in
some
absurdity, or some repugnancy or inconsistency with the rest of the
instrument. . . .
The mode of
construction should never be to interpret the particular word or
phrase in isolation (in vacuo) by itself . . .
The correct
approach to the application of the "golden rule" of
interpretation after having ascertained the literal meaning
of the
word or phrase in question is, broadly speaking, to have regard:
(1) to the
context in which the word or phrase is used with its interrelation to
the contract as a whole, including the nature and
purpose of the
contract
(2) to the
background circumstances which explain the genesis and purpose of the
contract, i. e. to matters probably present to
the minds of the
parties when they contracted. . . ;
(3) to apply
extrinsic evidence regarding the surrounding circumstances when the
language of the document is on the face of it ambiguous,
by
considering previous negotiations and correspondence between the
parties, subsequent conduct of the parties showing the sense
in which
they acted on the document, save direct evidence of their own
intentions”.
[8] In determining
the intention of the parties, one has to ascertain from the language
used, evidence of the surrounding circumstances
and the conduct of
the parties.
[9] In clause 1 of
the court order, it is clear that the first to fifth respondents were
to purchase the applicant’s shareholding
in the first
respondent at a value to be determined. In other words, the parties
had agreed to purchase the shareholding of the
applicant but could
not agree on the purchase price, hence the appointment of the auditor
to value the shareholding.
[10] The valuation
of the auditor was accepted by both parties, and now the main issue
is how that amount should be paid, is it
a cash sale or a credit
sale. The court order is silent on whether the transaction was a cash
sale or a credit sale. In De Wet
v Santam Bpk
[1996] ZASCA 1
;
1996 (2) SA 629
(A) the
court cited with approval in the case of Lendalease Finance (Pty) v
Corporation de Marcadeo Agricola and others
1976 (4) SA 464
(A) where
the court held that, whether a sale is for cash or credit, is a
matter of agreement between the contracting parties,
either expressly
or tacitly; and in the latter case must be judged from all the terms
of the contract, the surrounding circumstances
and the conduct of the
parties... In the absence of express terms as to the sale being cash
or credit there is a presumption that
it is for cash. This may be
rebutted in various ways but the giving of credit cannot be inferred
from mere delivery by the seller
without receiving the purchase
price.
[11] It is clear
that the court order does not state whether the transaction was cash
sale or a credit sale. The presumption is
that it is a cash sale,
what is left, is for the respondents to rebut that presumption.
In my view, the
respondents have failed to do so.
[12] From the
language of the court order, everything was settled except the
purchase price. It is clear that all the respondents
intended to
purchase the shareholding jointly and severally. If one looks at the
financial statements of the respondents, for 2011,
the respondent was
able to loan “Parent” R5 788 047. 00 and for 2012, they
were able to loan parent R6 339 515. 00.
[13] Taking into
consideration the language of the court and the surrounding
circumstances under which the agreement was reached,
it is my
considered view that the parties intended the transaction to be a
cash sale.
[14] This conclusion
makes it unnecessary for me to deal with the first respondent’s
counterclaim.
[15] In the result I
make the following order:
(1) The first to the
fifth respondents jointly and severally the one paying the others to
be absolved are to pay the applicant in
the sum of R3 448 012. 86
(three million four hundred and forty eight thousand and twelve rand
and eighty six cents) together with
interest at the rate of 15,5 %
per annum calculated from 24
th
October 2012 to date of
final payment.
(2) The first to
fifth respondents jointly and severally, the one paying the other to
be absolved, must pay the costs of the applicant.
M F KGANYAGO
ACTING JUDGE OF
THE HIGH COURT