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[2013] ZAGPPHC 148
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Easigas (Pty) Ltd v Honeyfields and Another (48206/2012) [2013] ZAGPPHC 148 (12 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 48206/2012
DATE:12/06/2013
In
the matter between:
EASIGAS
(PTY)
LTD
...........................................................................................
APPLICANT
and
HONEYFIELDS
.......................................................................................
1st RESPONDENT
GEORGE LYSANDROU
GEORHIOU
..................................................
2nd RESPONDENT
JUDGMENT
KUBUSHl, J
[1]
The applicant is requesting an order for final relief interdicting
and preventing the use of its gas cylinders by the respondents.
The
respondents are resisting the application and deny filiing the
applicant’s containers or selling such containers to the
public. They further allege that they have not received, never been
in possession, filled or distributed any of the applicant’s
LPG
cylinders.
[2]
The cylinders which the applicant seeks to protect are silver in
colour and bear the name and/or embossing EASIGAS and/or “PROPERTY
OF EASIGAS, NEVER SOLD”. The applicant retains ownership in its
cylinders which it distributes into the market on a deposit
system.
The end user purchases only the LPG in such cylinders.
[3]
For the respondents to be able to fill and distribute the applicant’s
cylinders they must get authorisation or permit
from the applicant.
This is a requirement because there are various regulations and
safety standards which require written permission
from the owner of
the cylinder. The applicant has not authorised or permitted the
respondents to fill and distribute its cylinders.
[4]
Whenever the applicant suspects that unauthorised third parties are
filling and/or dealing with its cylinders it investigates
such
suspicion. The applicant employs the services of Royal Square
Investments CC (RSI) to investigate the activities of suspected
entities. In this instance, RSI sent two of its investigators, Peter
Molope (Molope) and Joseph Mohlala (Mohlala) to investigate
the
respondents. Their investigation forms the basis of this application.
[5]
After the applicant had filed its replying affidavit the respondents’
attorneys approached the applicant’s attorneys
with a request
to aiiow them to file a further affidavit in reply to the applicant's
answering affidavit. When there was no response
from the applicant's
attorneys, the respondents’ attorneys proceeded to file the
affidavit. They also filed an application
for leave to file a further
affidavit alternatively for ieave to supplement their answering
affidavit, for hearing at the trial.
At the hearing of the
application the applicant’s counsel did not take issue with the
filing of this affidavit. In the interest
of justice I also allowed
the affidavit.
[6]
The respondents’ defence raises two disputes of fact. The
respondents’ counsel submitted that the factual disputes
are
genuine and bona fide warranting dismissal of the applicant’s
application. I disagree.
[7]
Courts have said that an applicant who seeks final relief on motion,
in the event of conflict, accepts the version set up by
his or her
opponent unless the latter’s allegations are, in the opinion of
the court, not such to raise a real, genuine or
bona fide dispute of
fact or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the
papers. See PLASCON-EVANS
PAINTS LTD v VAN RiEBEECK PAiNTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E - 635C and W1GHTMAN t/a JW CONSTRUCTION v HEADFOUR (PTY) LTC &
ANOTHER 2008 (3) SA 371 (SCA) at para [12],
[8]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his or her-affidavit seriously and unambiguously
addressed the fact said to be disputed. A bare denial may not
be
sufficient if the fact averred lies purely within the knowledge of
the averring party and no basis is laid for disputing the
veracity or
accuracy of the averment. See WIGHTMAN t/a JW CONSTRUCTION v HEADFOUR
(PTY) LTD & ANOTHER above at para [13],
[9]
The first dispute is in respect of what transpired when Molope and
Mohlala went to purchase gas from the 1st respondent’s
premises. The applicant’s version is that Molope and Mohlala
were informed by Elmarie Scholtz (Scholtz), an employee of the
1st
respondent, that the 1st respondent does not sell LPG from its
premises but that it does deliver on order. Schoitz’s
evidence,
on the other hand is that she refused to assist Molope and Mohlala
upon noticing that they had gas cylinders which belong
to the
applicant. According to the 2nd respondent, the employees of the 1st
respondent were specifically instructed not to fill
gas cylinders
belonging to the applicant.
[10]
The respondents’ defence to this alleged dispute is
contradictory. I cannot determine from their version whether Molope
and Mohlala, when they went to the 1st respondent to purchase the
LPG, met with Scholtz or with the 2nd respondent. In the answering
affidavit the 2
nd
respondent testified that the two
gentlemen approached Scholtz. This fact is confirmed by Scholtz and
it is also the evidence of
Molope and Mohlala. However, in the
respondents’ affidavit in reply to the applicant’s
replying affidavit, the 2nd
respondent alleges that the two male
persons approached him and he in no uncertain terms, informed them
that he was not interested
to fill the applicant's cylinders. I am
therefore of the opinion that the applicant’s version should in
this respect stand.
[11]
The second dispute emanates from the telephonic LPG order placed by
Molope with the respondents. The respondents admit receiving
the
order for delivery of the LPG, but deny that they fulfilled the order
themselves and delivered the filled LPG cylinders. According
to the
2nd respondent the order was passed on to Alva Gas Distributors
(ALVA) which filled and delivered the LPG cylinders. On
the contrary,
the applicant alleges that the respondents delivered the order, and
that gas cylinders belonging to the applicant
were used and delivered
to Molope and Mohlala.
[12]
The applicant’s counsel contends that it cannot be said that
the 1st respondent and ALVA are not the same entity. According
to
him, the respondents provided Molope with a Standard Bank account
number wherein to deposit the amount due for the ordered gas.
The
same account number appears on the invoice tendered by ALVA to
Molope.
Both
entities, the 1st respondent and ALVA use the same bank account
numbers and they also have the same VAT registration number.
[13]
The-respondents’ defence in respect of this allegation is that
the 2nd respondent took Molope’s order well aware
that the 1st
respondent did not have LPG in stock and passed the order to ALVA.
The reason for taking the order is because he did
not want to lose
Molope as a new customer. The 2nd respondent alleges also that he
gave Molope the bank account number of the 1st
respondent to deposit
the amount due for the order. He requested ALVA to use those bank
account details and the VAT registration
number of the 1st respondent
on their invoice because according to him, the VAT registration
number that has to appear on an invoice
is the VAT registration
number of the person who received the payment.
[14]
I find the 2nd respondent’s explanation that he took Molope’s
order even though he knew that the 1st respondent
had run out of LPG,
implausible. He went out of his way to phone Molope and take his
order ‘with the intention to request
another supplier of LPG’,
which happened to be ALVA, to carry out the order. The question is
why would he go to all this
trouble? Why did he not provide Molope
with the contact details of ALVA and leave it at that? There are also
discrepancies in his
explanation, in paragraph 17 of the answering
affidavit, he alleges that he was aware of the fact that the 1st
respondent did not
have stock when he took Molope’s order, yet
in paragraph 32 of the respondents’ affidavit in reply to the
applicant’s
answering affidavit he states that he became aware
that the 1st respondent was out of stock when he attempted to perform
delivery.
[15]
The explanation why ALVA had to use the bank account details and VAT
registration number of the 1st respondent in its invoice
is also not
credible, in my view. It is unheard of that a business can use
another business’ bank account details and VAT
registration
number on its invoice. The 2nd respondent states that ALVA came the
following day to collect the money paid by Molope.
In my judgment, it
means that Molope’s money was paid to ALVA and not to the 1st
respondent as they want us to believe. The
transaction the 2nd
respondent is referring to is an ordinary and normal business
transaction that happens frequently in business
and did not require
the two businesses to falsify their records as it is alleged they
did. Much as the 2nd respondent tried to
explain why ALVA had to use
the 1st respondent’s VAT registration number, there is,
however, no explanation forthcoming of
why it was necessary for ALVA
to use the 1st respondent’s bank account number.
[16]
There is no confirmatory affidavit from ALVA or its alleged owner,
Mogaleamalla Masedi Goodwin (Goodwin), to confirm what
is said by the
2nd respondent about the entity or its owner. This information
remains hearsay in the mouth of the 2nd respondent.
The 2nd
respondent’s explanation why Goodwin’s affidavit could
not be obtained is to me unacceptable. According to
the 2nd
respondent, Goodwin hesitated to provide him with an affidavit
because he said he sells gas only in winter. Why would Goodwin
refuse
to provide an affidavit on such a flimsy reason? Mainly, why would he
refuse to state in writing that he sold LPG to Molope
if he in fact
did so?
[17]
The respondents were not able to provide proof that an entity by the
name Alva Gas Distributors exists. The respondents provided
an
identity document which they allege belongs to Goodwin. This however,
is to me, not proof enough that the entity does exist.
Although the
respondents’ counsel argued that the business exists and was
not thumb sucked, he conceded in argument that
there is no legal
entity in that name.
[18]
It is common cause that the LPG ordered by Molope from the 1st
respondent was delivered by a motor vehicle which bore the cell
phone
number of the 2nd respondent and the land Sine telephone number of
the 1st respondent. According to the respondents the said
motor
vehicle belonged to a close corporation known as HAZCHEM VEHICLE
RENTAL which trades under the name 1009 Kruger Avenue Properties
CC.
It is also not in dispute that the 2nd respondent is the sole member
of that close corporation. The 2nd respondent’s
testimony is
that at the time of the delivery the motor vehicle had been hired out
to ALVA. In support of this aversion he attached
a copy of a lease
agreement. According to him, ALVA fulfilled the order and delivered
it to Molope and Mohlala.
[19]
I, however, find it a coincidence that the business that hired the
2nd respondent’s motor vehicle would be the same that
delivered
the gas cylinders to Molope. As I have already stated in paragraph
[17] of this judgment the respondents have not convinced
me that
either an entity or a business under the name and style ALVA does
exists. The lease agreement provided does not persuade
me otherwise.
[20]
On the basis of the proven facts before me the only objective
inference I could make is that the two entities, Alva Gas
Distributors
and the 1st respondent are either both owned by the 2nd
respondent or are one and the same business.
[21]
Consequently I have to find that the respondents’ allegations
do not raise a genuine and bona fide factual dispute. The
application
can, therefore, be decided on the papers as they are before me. The
respondents’ allegations on the disputed
facts are unambiguous
and called for an explanation which was not forthcoming and they thus
stand to be rejected. I have to defer
to the applicant’s
version and the application should therefore succeed.
[22]
The applicant's 6th prayer is for an order for costs on the scale as
between attorney and client. The respondents’ counsel
left the
matter in the discretion of the court. I am inclined to award costs
as requested by the applicant. It is the unlawful
conduct of the
respondents that has occasioned this action and they must therefore
bear punitive costs.
[19]
In the premises the application is granted. Prayer 1, 2, 3, 4, 5 and
6 of the notice of motion are made an order of this court.
E.
M. KUBUSHI
JUDGE
OF THE HIGH COURT
Appearance:
HEARD
ON THE : 28 MAY 2013
DATE
OF JUDGMENT : 12 JUNE 2013
APPLICANT’S
COUNSEL : ADV P STRATHERN
APPLICANT’S
ATTORNEY : YAMMIN HAMMOND INC
c/o
PETZER DU TOIT & RAMUUFHO RESPONDENTS’ COUNSEL : ADV J J W
HAYES
RESPONDENTS’
ATTORNEY : PHILLIP DE BEER ATTORNEYS c/o KEMP ATTORNEYS