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[2013] ZAGPPHC 288
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Mnjiya Consulting Engineering (Pty) Ltd v Koen (31951/2013) [2013] ZAGPPHC 288 (11 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTEG HIGH COURT, PRETORIA ;
(THE
REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 31951/2013
DATE:11/10/2013
In
the matter between:
MNJIYA
CONSULTING ENGINEERING (PTY)
LTD
.........................................
PLAINTIFF
And
CHRIS
FERDINAND
KOEN
..........................................................................
DEFENDANT
JUDGMENT
RAULINGA
J,
[1]
In this application the plaintiff seeks an order for summary judgment
in the sum of R5million plus interest and costs. The claim
arises
from an agreement entered into between the plaintiff and the
defendant on the 25 August 2011.
[2]
It is common cause that the plaintiff concluded a written agreement
with the defendant, an attorney, and a certain Anthony van
der Merwe
("van der Merwe").
Van
der Merwe was a businessman who was in a position to facilitate,
through his strategic associations, the procurement of financial
instalments necessary for the plaintiff to undertake the road
construction project in the DRC. The plaintiff was prepared to put
down the sum of R5million as a commitment fee to pledge its
commitment to commencement and the success of the road construction
project. (Clause 1.3 and 1.4)
[3]
The defendant had agreed that his firm's trust account should be
utilised to receive and retain the commitment fee. The commitment
fee
would only be paid out by the defendant once the plaintiff had
concluded an agreement with the party to whom the money was
to be
transferred (clause 4.5).
[4]
The gravamen of the plaintiff's argument is that the defendant acted
in material breach of the agreement, in that the defendant
paid out
and/or misappropriated the commitment fee in circumstances where:
(i)
The agreement with the party to whom the commitment fee was to be
transferred had not been concluded; and/or
(ii)
The plaintiff had not provided the defendant with written
instructions to pay out commitment fee; and/or
(iii)
The plaintiff's attorneys had not provided the defendant with written
instructions to pay out the commitment fee. The defendant
raised a
point in limine of the non-joinder of Van der Merwe,
[5]
It is prudent to mention that the agreement referred to in paragraph
4 (i) above was concluded and signed between a certain
Carlos de
Araujo and the plaintiff on the 7th September2011. It is also
important to mention that the agreement between the plaintiff
and the
defendant of the 25 August 2011 was signed by Van der Merwe on behalf
of the plaintiff and Christiaan Koen on behalf of
the defendant.
[6]
Clause 4.5 of the agreement between the plaintiff and the defendant
reads as follows:
"
The sum of R5,000,000,00 shall only be paid out by Chris Koen
Attorneys once MCE has concluded an agreement with the party
to whom
the money is to be transferred'
Whereas
clause 4.6 reads:
"Koen
hereby gives his written undertaking that he will not pay out the sum
of R5,000,000,00 to any party unless and until
the duly signed
agreement referred to herein above has been provided to him and also
that written instructions have been issued
by MCE and its attorneys(
being Ndumiso Voyi Incorporated) on such payment, with the name and
details of the receiver of the funds
clearly stipulated thereon"
[7]
Clause 4.1.2 of the agreement between Carlos de Araujo and the
plaintiff reads as follows:
"Party
-2 will upon signing of this agreement, release the funds currently
held In the bank Trust Account of C Koen Attorneys
to Party-1, in
order to provide and obtain the necessary inssuance of the required
Bank Guarantee and monetizing of the bank Guaranted'
[8]
In my view the requirements of clause 4.5 of the agreement between
the plaintiff and defendant was complied with. The requirements
of
clause 4.6 were partially complied with in that the agreement between
Carlos de Araujo was concluded and provided to the defendant.
My
reading of clause 4.1.2 of the agreement between Carlos de Araujo and
the plaintiff ousts the last portion of clause 4.6 of
the agreement
between the plaintiff and the defendant.
[9]
Pertaining to the issue of non-joinder, the plaintiff is wrong when
it submits that Van der Merwe has no legal interest in the
subject-matter of the litigation, which may be affected prejudicially
by the judgment of the court in the proceedings concerned.
In the
first place, there is a close relationship between Van der Merwe and
the plaintiff in that Van der Merwe signed the agreement
on behalf of
the plaintiff. Van der Merwe therefore has a dose relationship with
the defendant through the agreement concluded
between the plaintiff
and the defendant. Moreover, Van der Merwe received about R1 million
from the defendant. Therefore there
exists a need for all this issues
to be ventilated. Van der Merwe ought to have been joined.
[10]
The plaintiff's contention that the defendant's opposing affidavit
does not disclose a bona fide defence to the plaintiff's
claim cannot
be sustained.
[11]
In the event I make the following order:
(a)
The plaintiff's application for summary judgment is dismissed with
costs.
(b)
The defendant is granted leave to defend the action.
T J RAULINGA
JUDGE
OF THE HIGH COURT