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[2012] ZAFSHC 37
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Solar Sectrum Trading 120 (Edms) Bpk h/a Cash Mania v Stamier and Another (A211/11) [2012] ZAFSHC 37 (1 March 2012)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A211/11
In
matter between:
SOLAR SPECTRUM TRADING 120 (EDMS)
BEPERK h/a CASH MANIA
…...............................................
Appellant/Garnishee
and
ANNA STAMIER
….........................................
1
st
Respondent/Judgment
Creditor
and
Johannes Casparus De
Villiers
….................................
Judgment
Debtor
CORAM:
RAMPAI, et C. J. MUSI, JJ
HEARD ON:
20 FEBRUARY 2012
_____________________________________________________
JUDGMENT BY:
C. J. MUSI, J
DELIVERED ON:
1
MARCH 2012
[1] This appeal
originates from the magistrate’s court for the district of
Ficksburg. It is unopposed. On 25 March 2011, the
magistrate made the
following order against the appellant/garnishee:
“
1. The
garnishee, Solar Spectrum Trading 120 Pty Ltd t/a Cash Mania is
ordered to pay the judgment creditor or her attorney on the
amount
that it paid over the garnishee between the dates of the section 65E
order to wit 13 November 2009 and the 30
th
of November 2009 on or before 7 April 2011, failing which execution
for the amount ordered and the costs of execution may be issued
against the garnishee.
Matter postponed until 30 August 2011
for the said statements and further adjudication;
Costs stand over.”
Quoted
without emendation.
[2] The appeal is
primarily aimed against paragraph 1 of the aforementioned order.
[3]
The judgment debtor, Mr. J C de Villiers, was called upon to appear
before the magistrate, on 13 November 2009, in terms of
section 65 A
(1) (a) of the Magistrate Court Act 32 of 1944 as amended (the Act).
1
[4] At
the hearing on 13 November 2009, the magistrate was satisfied that
there is a debt due to the judgment debtor by the garnishee
which may
be attached in terms of section 72 to satisfy the judgment debt and
costs or a part thereof.
2
He
therefore ordered the attachment of the debt.
3
[5] The magistrate’s
order reads as follows:
“
Mnr J. C. de
Villiers word gelas om maandelikse betalings van R500 ten gesigte van
die vonnisskuld en kostes te doen by die kantore
van Snyman en Kie
Prokureurs Ficksburg. Eerste betaling te geskied voor/op 15/12/09 en
daarna voor/op die 20ste dag van elke daaropvolgende
maand.”
I.t.v. art. 65 E (1) (b) gelees met
art 72 van die Wet op Landdroshowe 32/1994 gelas die hof ‘n
skuldbeslag bevel vir enige
toekomstige opbrengste verskuldig deur
Solar Spectrum Trading 120 (Edms) Bpk h/a Cashmania van McCabestraat,
Ficksburg aan Mnr.
J.C. de Villiers.”
[6] The attachment order
was issued on 10 December 2009.
[7] On 19 December 2009
the sheriff attempted to serve the said order on Mrs. Elizabeth De
Villiers at the business address of the
garnishee. She informed the
sheriff that there were no funds due to the judgment debtor by the
garnishee and that the judgment
debtor was no longer in the
employment of the garnishee.
[8] On 21 December 2009
the sheriff again attended at the business premises of the garnishee
and served the order on Mrs. Elizabeth
De Villiers.
[9]
Pursuant to the provisions of section 72 (3) read with rule 47, Mrs.
Elizabeth De Villiers filed an affidavit wherein she –
in her
capacity as manager of the garnishee – denied that the
garnishee is or would in future be in possession of money due
to the
judgment debtor.
4
[10] After a skirmish
between the judgment creditor’s and the garnishee’s
attorneys the magistrate ordered that Mrs.
Elizabeth De Villiers
should testify.
[11] She confirmed the
content of her affidavit to the effect that there are no moneys due
to the judgment debtor by the garnishee.
According to her, the
judgment debtor worked on commission basis for the garnishee but his
services were terminated after the order
was granted but before it
was served on the garnishee.
[12] During
cross-examination she testified that she is married out of community
of property to the judgment debtor. When she was
confronted with a
print - out from the deeds registry, to the effect that she is
married in community of property; she could not
explain the
discrepancy. She testified that she does not know who the directors
of the garnishee are. Although she stated in an
affidavit that she
was a director she disavowed being director. According to her she
manages a shop belonging to the garnishee
and she compensates
herself. She does not know who her employer is.
[13] She presented a book
wherein she recorded that the last commission paid by the garnishee
to the judgment debtor was on 30 November
2009. When she was asked
who requested her to keep records of the commission paid to the
judgment debtor she initially testified
that the company (garnishee)
instructed her to do so. When she was pressed for a sensible answer
she was constrained to admit that
it was the judgment debtor.
[14] The magistrate,
correctly in my view, rejected her evidence. It is clear that she is
an inveterate liar who would stop at nothing
in order to protect her
husband. It is clear that the scheme or scam was to use the company –
as a separate person –
in order to avoid paying the judgment
debtor’s debt. Mr Benade, for the garnishee, conceded that her
evidence is untrustworthy.
[15] This matter raises
several questions. Firstly, was the garnishee properly before the
court? Secondly, having rejected Mrs.
Elizabeth De Villiers’
evidence, could the magistrate find that the garnishee did not pay
the money to the judgment debtor?
Lastly, if the entry in her book to
the effect that the last payment to the judgment debtor was made on
30 November 2009 is true,
could the magistrate order the garnishee to
pay the judgment creditor an amount already paid to the judgment
debtor? A negative
answer to any of the questions raised above will
dispose of this appeal.
[16] A
company is an artificial person which can only function through a
human agency. The company must appoint a human agency that
will be
its “directing mind and will”.
5
In
Anderson
Shipping v Guardian National Insurance
6
Nicholas
AJA said the following:
“
Being a
corporation, Anderson does not have a mind, and hence cannot itself
have knowledge. The knowledge of a company can only
be the knowledge
of the directors and managers who represent the directing mind and
will of the company, and control what it does…
Subordinates,
who merely carry out orders from above, do not speak and act as the
company and do not represent the ‘directing
mind and will of
the company’… Their knowledge is not
per
se
the knowledge of the company. In the present case, the Gaurdian did
not attempt to identify the persons who represent ‘the
directing mind and will’ of Anderson. It did not establish that
Ross was such a person. Although he was styled “begryfsbestuurder’,
it was not shown that he was anything other than one of the people in
the company who, in
Denning
L.J’s
words in the
H
L Bolton
case supra, ‘are mere servants and agents who are nothing more
than hands to do the work and cannot be said to represent
the mind or
will.”
[17] In this matter there
was no proof before the magistrate that Mrs. Elizabeth De Villiers
was the “directing mind and will”
of the garnishee. In
fact she expressly said that she does not know who the director/s of
the garnishee is. There is no evidence
that she was authorised to
represent the garnishee. There is therefore no evidence that the
garnishee was before the magistrate.
The magistrate was supposed to
satisfy himself that the garnishee or its representative is properly
before him before making any
order against it.
[18] The magistrate
rejected Mrs. Elizabeth De Villiers’ evidence to the effect
that the garnishee paid the judgment debtor
his commission before the
attachment order was served on it. I will assume for purpose of this
discussion that the garnishee was
properly before the magistrate and
properly represented by Mrs. Elizabeth De Villiers. If her evidence
is rejected then there was
no evidence before the magistrate to the
effect that the garnishee did not pay the judgment debtor the
commission owed between
14 November 2009 and 30 November 2009. The
magistrate could not make the order in the absence of such evidence.
The objective evidence,
i.e. the entry in the book to the effect that
the last payment to the judgment debtor was on 30 November 2009 was
undisputed.
[19] As stated in the
preceding paragraph the evidence relating to the book entry is
undisputed. It is undisputed that the attachment
order was only
served on 21 December 2009. I will go so far as to say that the
garnishee became aware of the attachment order on
19 December 2009.
The question is still whether the garnishee can and should be held
liable to pay money in terms of an attachment
order that it was
unaware of when it paid the commission to the judgment debtor? In my
view that answer is an emphatic no. To suggest
the contrary, as the
magistrate did, would be tantamount to punishing the garnishee for
acting innocently by complying with the
terms of the agreement
between it and the judgment debtor without having any knowledge of
the attachment order. The garnishee cannot
be made to pay twice. The
Act and rules do not make provision for such a procedure or order.
[20] In my view all three
questions must be answered in the negative and the appeal should
therefore succeed.
[21] The garnishee was
legally represented in the court
a quo
.
It went to court with the primary objective of misleading it. It sent
a person who was not its ‘directing will and mind’.
That
person had no information to assist the court in coming to a just
finding in the matter. The appeal is before us today because
of the
lies and dishonest behaviour of the garnishee. This is a matter in
which we should show our displeasure by not granting
a costs order in
the garnishee’s favour irrespective of the fact that it was
successful on appeal.
[22] I accordingly make
the following order:
(a) The appeal is upheld
with no order as to
costs.
(b) Paragraph 1 of the
magistrate’s order is deleted.
_______________
C.J. MUSI, J
I
concur.
_______________
RAMPAI,
AJP
On
behalf of the Appellant: Adv BENADE
Instructed
by: Du Toit Louw Botha Inc
Ficksburg
/ar
1
Section
65 (1) (a) reads as follows:
“
(1) (a) If a court has given
judgment for the payment of a sum of money or has ordered the
payment in specified instalments or
otherwise of such an amount, and
such judgment or order has remained unsatisfied for a period of 10
days from the date on which
it was given or on which such an amount
became payable or from the expiry of the period of suspension
ordered in terms of section
48 (e), as the case may be, the judgment
creditor may issue, from the court of the district in which the
judgment debtor resides,
carries on business or employed, or if the
judgment debtor is a juristic person, from the court of district in
which the registered
office or main place if business of the
juristic person is situate, a notice calling upon the judgement
debtor or, if the judgement
debtor is a juristic, a director or
officer of the juristic person and in his or her personal capacity,
to appear before the
court in chambers on a date specified in such
notice in order to enable the court to inquire into the financial
position of the
judgment debtor and to make such order as the court
may deem just and equitable.”
2
Section
65 (E) (1) (b) reads as follows:
“
The court is satisfied –
(b) that there is a debt due to the judgment debtor which may be
attached in terms of section 72
to satisfy the judgment debt and
cost or a part thereof, the court may authorize the attachment of
the debt in terms of that
section.”
3
Section
72 of the Act reads as follows:
“
(1) The court may, on
ex
parte
application
by the judgment creditor or under section 65E (1) (b), order the
attachment of any debt at present or in future owing
or accruing to
the judgment debtor by or from any other person (excluding the
State), residing, carrying on business or employed
in the district,
to an amount sufficient to satisfy the judgment and the costs of the
proceedings for attachment, whether such
judgment has been obtained
in such court or in any other magistrate’s court, and may make
an order (hereinafter called
a garnishee order) against such person
(hereinafter called the garnishee) to pay to the judgment creditor
or his attorney at
the address of the judgment creditor or his
attorney, so much of the debt as may be sufficient to satisfy the
judgment and costs,
and may enforce such garnishee order as if it
were a judgment of the court.
(2) If, after any such garnishee order in respect of
any debt has been granted, it is shown to the satisfaction of the
court that
sufficient means to maintain himself and those depended
upon him will not, after satisfaction of the garnishee order, be
left
to the judgment debtor, the court shall set aside the garnishee
order or amend it in such manner that it will affect only the
balance of the debt over and above such sufficient means.”
(3)
Any order under this section may at any time for good cause be
suspended, amended or rescinded by the court
4
The
relevant parts of rule 47 reads as follows:
“
(7)
Such order shall be served upon the garnishee and upon the judgment
debtor and shall operate as an attachment of the debt
in the hands
of the garnishee.
(8)
The judgment debtor and the garnishee may appear on the day fixed
for the hearing of the application, but may not question
the
correctness of the judgment on which the application is based.
(9)
If the garnishee does not dispute his indebtedness to the judgment
debtor, or allege that he has a set-off against the judgment
debtor
or that the debt sought to be attached belongs to or is subject to a
claim by some other person, or if he shall not appear
t show cause
as provided in subrule(5), the court may order the garnishee to pay
the debt (or such portion of it as the court
may determine) to the
judgment creditor or his attorney on the dates set out in the said
order; and should the garnishee make
default, execution for the
amount so ordered send costs of the said execution may be issued
against the garnishee. The provisions
of rules 36 to 43, inclusive
shall
mutatis mutandis
apply to execution in terms of this
subrule.
(10)If
the garnishee disputes his liabilities to pay the said debt or
alleges that he has any other defence, set-off or claim
in
reconvention which would be available to him if he were sued for the
said debt by the judgment debtor, the court may order
the garnishee
to state, orally or in writing, on oath or otherwise, as to the
court may seem expedient, the particulars of the
said debt and of
his defence thereto and may either hear and determine the matters in
dispute in a summary manner or may order-
(a) that the matters in issue shall be tried under the
ordinary procedure of the court, and
(b) that, for the purpose of such trial, the judgment
creditor shall be plaintiff and the garnishee the defendant, or vice
versa.
(11)
If the garnishee alleges that the said debt belongs to or is
subjected to a claim by some other person the court may extend
the
return day and order such other person to appear and state the
nature and particulars of his claim and either to maintain
or
relinquish it, and may deal with the matter as if the judgment
creditor and such other person were claimant in interpleader
in
terms of rule 44.
(12)
If the judgment debtor alleges that the judgment has been satisfied
or is for some other reason not operative against him,
or that the
garnishee is not indebted to him, the court may try the issue
summarily.
(13)
After hearing the parties or such of them as appear the court may –
(a)
order payment by the garnishee in terms of subrule (9);
(b)
declare the claim of any person to the debt attached to be barred;
(c)
dismiss the application;
(d)
Make such other order as may be just.
5
See
Henochberg on the Company’s Act: Meskin vol I p392-393
6
1987
(3) SA 506
(AD) at 515 H to 516 B.