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[2013] ZAFSHC 114
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Folotsi Transport CC v A J Scholtz t/a A & E Logistics (2135/2013) [2013] ZAFSHC 114 (11 June 2013)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 2135/2013
In
the matter between:-
FOLOTSI
TRANSPORT CC
....................................................................
Applicant
and
A
J SCHOLTZ t/a A & E LOGISTICS
.................................................
Respondent
HEARD
ON:
6
JUNE 2013
DELIVERED
ON:
11
JUNE 2013
JUDGMENT
MOCUMIE,
J
[1]
The applicant, Folotsi Transport CC approached this Court on 31 May
2013 on an urgent basis for the return of a Nissan diesel
truck which
belongs to it. Mr Moeketsi Billy Folotsi is the owner of the
applicant. This application came before
Mhlambi
AJ
without prior service or notice
to the respondent. On the same day
Mhlambi
AJ
granted a rule
nisi
ordering the respondent to return the truck immediately to the
respondent. The rule
nisi
was returnable on 27 June 2013. '
[2]
On 4 June 2013 the respondent filed a notice in terms of Rule
6(12)(c) for reconsideration of the application and simultaneously
a
notice that the return date would be anticipated in terms of Rule
6(8) of the Uniform Rules of Court on 6 June 2013. On 4 June
2013
after hearing counsel for both parties, I amended the order granted
by
Mhlambi AJ
to
direct that the truck be kept by the Sheriff of this Court pending
the finalisation of the main matter between the parties.
[3]
On 6 June 2013 the parties argued the matter before me. in its
opposing papers, i.e. opposing affidavit and supplementary opposing
affidavit, the respondent alleged that there was an agreement between
the parties that entitled it to the use and possession of
the truck.
The respondent further contended that the rule
nisi
should be discharged because:
(a)
The applicant failed to disclose certain material facts to the Court
when it launched the application on an ex
parte
basis.
(b)
The respondent’s version, applying the approach as set out in
Plascon-Evans Paint Ltd v Van
Riebeeck
Paints
(Ptv) ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 as is practice in proceedings of this
nature, was more probable.
[4]
It is common cause that the applicant represented by Mr Folotsi and
the respondent represented by Mr Albrecht Johannes Scholtz
concluded
an oral agreement in November 2012 in which the applicant placed the
truck at the disposal of the respondent for use
in the course of his
services in the transportation of goods and materials in certain
terms and conditions.
[5]
The applicant alleged that the respondent was to use the vehicle for
a trial period of one month, it being anticipated that
the parties
might extend the usage period if the parties so agreed. The
remuneration payable by the respondent for the use of the
truck will
be calculated according to the kilometers covered over the said
period. The respondent will be responsible at his own
costs to
maintain the truck during the period of use and ensure that it
operated within the parameters of the law; and should the
respondent
breach any of the terms and conditions set out, the applicant will be
entitled to cancel the agreement and repossess
the truck.
[6]
The applicant further alleged that the truck was delivered to the
respondent on 1 December 2012. After a month Mr Folotsi, went
to the
offices of the respondent at Bainsvlei. The latter instead sought
indulgence to extend the trial run until the end of January
2013 as
business had been slow in December. He, Mr Folotsi, agreed to the
extension.
[7]
He alleged that at the end of January 2013, he phoned Mr Scholtz on
numerous occasions without success. He even went to the
respondent’s
premises where he did not find Mr Scholtz or the truck. Mr Scholtz
could not be found either telephonically
or at the premises since
January 2013 until May 2013 when he, Mr Folotsi was informed by a
personnamed Sam that the truck was on
its way to Port Elizabeth. He
then arranged with the Traffic Department to impound the truck. The
truck was impounded on its way
to Port Elizabeth on 7 May 2013 where
it was kept until its release to the respondent on 15 May 2013.
[8]
On the basis that he was the legal owner of the truck and that the
respondent had failed to comply with the terms and conditions
of the
agreement, he cancelled the agreement as he was entitled to and
approached this Court to return the truck.
[9]
In his opposing affidavit, Mr Scholtz, on behalf of the respondent,
gave a completely different version. He agreed that there
was an oral
agreement concluded between the applicant and respondent during
November 2012, but on different terms and conditions
as set out by
the applicant.
[10]
He averred that the agreement between the parties, as Mr Folotsi did
not have a starting capital, was that:
10.1.
He would operate the truck and arrange for business and Mr Folotsi
will share in profits on the basis that he, Mr Scholtz,
will bear the
initial expenses such as employing a new driver, making certain
changes to the truck for purposes of long distance
transportation;
10.2.
He, Mr Scholtz, will be entitled to 10% of the turnover and as soon
as profit was made, the applicant will get the remainder
of the
profit on a 50/50 basis;
10.3.
It was foreseen that the applicant would receive a profit after a
period of approximately four months as business was not
easy to come
by;
10.4.
The agreement was for one year which could thereafter be renewed.
[11]
During March 2013 Mr Folotsi approached him, he showed him all the
expenses he had incurred, such as buying new tyres, paying
for break
down due to the failure of the truck’s system.
[12]
In his view, Mr Folotsi became unhappy that he was not receiving any
income as he anticipated. He met with Mr Folotsi on two
occasions
when Mr Folotsi came to his premises until the truck was impounded by
the Traffic Department on 7 May 2013, which was
subsequently released
to him on 15 May 2013 through his attorney’s intervention.
[13]
Mr Scholtz further alleged that on 24 May 2013, four days before the
urgent application was launched, his attorneys received
a telephonic
call from Mr Compane, who suggested on behalf of the applicant, that
the parties meet to try to resolve the dispute
between them. The
round table was scheduled for 29 May 2013. On 28 May 2013 Mr Compane
called Mr Scholtz’s attorney to cancel
the meeting.
[14]
The applicant instead had approached another attorney, unknown and
without notifying the respondent and they approached this
Court as
they did on 31 May 2013. Mr Scholtz and his attorney were not aware
that the applicant had changed attorneys until on
3 June 2013 when Mr
Scholtz, through his attorney, received the court order ordering him
to return the truck. The effect of the
order was to remove the truck
from the respondent’s possession.
[15]
In his replying affidavit, Mr Folotsi, changed his version and
alleged as the respondent had asserted in its opposing affidavit
that
the truck was to be used by the respondent on condition that the
respondent was to pay for the expenses of the vehicle such
as diesel
expenses for the trial period and after such expenses were deducted
by the respondent he, Mr Folotsi, was to share on
a 50% basis in the
net profit for the month of December 2012.
[16]
This meant, according to him, that he had to share in the profit from
the beginning of the trial period, December 2012. He
averred further
that because he did not know or “was not familiar with the
respondent” and wanted to ascertain for
himself whether the
business was profitable, he would not have been agreeable to conclude
a long term agreement with the respondent
for the use of his truck.
The only agreement he had with the respondent was for a trial period
of one month, extended for a further
[unspecified] period after which
he could have considered the conclusion of a long term agreement.
[17]
He admitted that he met with Mr Scholtz in January 2013 and agreed to
a further extension of the trial period. The trial period
was
extended as he stated with reluctance on his part as Mr Scholtz still
had to provide him with figures of the income the truck
generated.
[18]
In his replying affidavit, he admitted that during March 2013 he
indeed visited Mr Scholtz at the applicant’s premises,
but it
was to collect the vehicle which Mr Scholtz refused to release but
promised to pay a certain amount into his Standard Bank
account,
which amount was never paid.
[19]
He maintained that he made numerous attempts to contact the
respondent, but could not reach him. As a result he reported the
truck stolen at Park Road Police Station, that’s how it was
impounded on 15 May 2013. He contended that despite the respondent’s
continued use of his truck during and beyond the trial period, he did
not receive any remuneration and that he deemed the oral
agreement to
be terminated.
[20]
Mr Reinders, on behalf of the respondent submitted that had
Mhlambi
AJ
been made aware of the true
position that:
(i)
the applicant and respondent were in constant communication through
their respective attorneys until the applicant deemed it
fit to
approach the Court on 31 May 2013, and
(ii)
there was a round table meeting arranged on 21 May 2013 to resolve
the disputes which had arisen, which the applicant abandoned
and
instead came to Court without notifying the respondent,
Mhlambi
AJ
would not have granted the
application on an urgent basis.
[21]
There are two reasons why this application should be dismissed. The
first is that the applicant failed to make a full disclosure
of the
true facts in its ex
parte
application. The second reason is that this matter must be decided on
the facts as stated by the respondent, and on those facts
the
applicant is not entitled to relief.
[22]
Where an applicant does not make full disclosure in ex
parte
applications the court, apprised of
the true facts, has a discretion to set aside the former order.
Schlesinger v
Schlesinqer
1979 (4) SA 342
(W) at 349 A-B. In Powejj
N.O.
and Others
v
Van
der Merwe and Others
2005 (5) SA
62
(SCA) Southwood AJA said:
“
[75]
In my view, this approach should apply equally to relief obtained on
facts which are incorrect because they have been misstated
or
inaccurately set out in the applicationfor the order... –
[76]
The purpose of rigorously applying the rule and setting aside the
decision to authorize the warrant is not to punish the director
as
was stated by the Court below. It is to maintain the legality of the
process...”
[23]
The applicant seeks an order that its vehicle be returned to it. That
implies that the contract between the parties is confirmed
as
cancelled. Where the applicant seeks final relief, it can only be
granted if the facts as stated by respondent, together with
the
admitted facts in the applicant’s affidavit, justify such an
order
Stellenbosch
Farmers’ Winery Ltd v
SteMenvale Winery (Ptv) Ltd
1957
(4) SA 234
(C) at 235 E-G. The disputes raised by the respondent do
not appear to be far-fetched or clearly untenable, and cannot be
rejected
on the papers
Plascon-
Evans Paints Ltd v Van Riebeeck
Paints (Ptv) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
at 634I-635C. Having considered both versions and applying the
Plascon-Evans
approach I am inclined to accept the respondent’s version
which, in essence is not disputed by the applicant and is more
probable than that of the applicant. I do not have to consider
whether the respondent’s version is true or not in these
proceedings. Whatever is in dispute can and may be dealt with in a
trial or action should the applicant wish to proceed in that
fashion.
[24]
In the result I make the following order:
ORDER
1.
The rule
nisi
granted on 31 May 2013 is discharged.
2.
The applicant to pay the costs of this application.
B.C.
MOCUMIE, J
On
behalf of applicants: AdvJ.J.F Hefer
Instructed
by:
Botha
Hefer Inc.
BLOEMFONTEIN
On
behalf of defendants: Adv S. Reinders
Instructed
by:
P
Schuurman BLOEMFONTEIN
BCM/sp/wm