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[2011] ZAKZDHC 79
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Muldery v Durban Concrete Fencing CC t/a Durban Concrete Fencing (12338/2010) [2011] ZAKZDHC 79 (4 November 2011)
1
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO: 12338/2010
In the matter between
ANDRE
MULDERY
…..................................................................................
APPLICANT
And
DCF CONCRETE PRODUCTS
CC
t/a
DURBAN CONCRETE FENCING
…..................................................
RESPONDENT
JUDGMENT
Date: 4 November 2011
PLOOS VAN AMSTEL, J
[1] The applicant and the
respondent are both involved in the concrete fencing industry. They
use moulds to cast the panels which
are used to make up a concrete
fence. The dispute between them concerns the ownership of a number of
moulds.
[2] Counsel for the
respondent submitted that the matter should be referred to oral
evidence because there is a dispute of fact
on the papers. Counsel
for the applicant submitted that there is no real dispute of fact and
that the matter can be dealt with
on the papers, adopting what has
been referred to as a robust approach.
2
[3] The matter started as
an urgent application for a rule nisi and interim relief designed to
ensure that the moulds did not disappear.
On 21 October 2010 Theron J
made an order by consent relating to the photographing and
identification of the moulds and an undertaking
by the respondent not
to alienate them. All that was sought before me was an order that the
applicant be allowed to remove the
moulds in question from the
respondent’s premises.
[4] It is not disputed on
the papers that the manufacture of moulds such as the ones involved
in this matter is a specialised activity
which requires a great deal
of experience. It is also not disputed that the applicant has
considerable experience in the manufacture
of concrete products and
that he has specialised in the manufacture of moulds.
[5] In July 2008 the
applicant and one Bryant van der Merwe, who was then one of the
members of the respondent, signed a document
3
which recorded their
intention to start a business with the name Universal Moulds. Their
intention was to form a close corporation
with four members, each
owning a twenty five percent interest. The proposed members were the
applicant, Van der Merwe,
Holm
(who deposed to the respondent’s answering affidavit), and one
Van Aswegen. The document records that the proposed close
corporation
would take over all the moulds and equipment, which would ‘be
allocated to loan accounts until the business is
in a position to
repay them’.
[6] The applicant says in
anticipation of the new venture he took all his moulds to the
respondent’s premises, where they
are still today. These, he
says, are the moulds reflected on the inventory which forms part of
the papers
4
.
The proposed business arrangement never materialised and the close
corporation was never formed. It appears from the papers that
the
applicant nevertheless remained with the respondent. There is a
dispute between them as to whether he was an employee or a
business
partner, but that is not relevant for present purposes. The applicant
says because the proposed close corporation was
never formed and did
not take his moulds over, he remained the owner of them. He
manufactured further moulds while he was there,
but does not seek any
relief in respect of them. This is presumably because he manufactured
them in the course of the business
of the respondent, or their joint
venture, and does not claim ownership of them.
[7] In or about September
2010 the applicant had a fall-out with Holm and parted company with
the respondent. He wanted to go back
in order to collect his moulds
(those on the inventory) but the respondent would not allow him on
the premises.
[8] On 1 October 2010 the
applicant’s attorney wrote to the respondent’s attorney
5
and stated, inter alia,
that the applicant would make arrangements to go to the respondent’s
premises in order to collect
his tools and moulds. The respondent’s
attorney responded as follows on 4 October 2010
6
:
‘
We refer to
the above matter and confirm that our client advises that there are
various moulds on our client’s premises, some
of which belong
to your client and some of which belong to our client. As such,
kindly forward us an inventory of which moulds
your client alleges
are his, together with a statement of what tools your client alleges
are his.
Once we receive this from you, we will
take instructions from our client, and then your client can arrange
to uplift his equipment
and tools.’
[9] On 5 October 2010
7
the applicant’s
attorney supplied the respondent’s attorney with the inventory
which forms part of the papers. On 6
October 2010
8
the respondent’s
attorney stated in an email that his client had looked at the
inventory but required more particulars of
the moulds which the
applicant alleged to be his. He said the applicant needed to provide
them with sufficient evidence ‘so
as to properly identify those
moulds which your client brought with him when he joined our client
in Pinetown’.
[10] On 7 October 2010
9
the applicant’s
attorney said in an email that the applicant was prepared to go to
the respondent’s premises and point
out the moulds which belong
to him. This was met by a further request
10
for a ‘detailed
list, itemizing those goods and moulds which he believes belong to
him.’ The respondent’s attorney
went on to say:’
…most of the moulds in our client’s possession belong to
our client and, whilst we are aware
that your client did bring
certain moulds with him when he joined our client, we require
specific details and identification of
those moulds which he believes
are his…our client is in no way seeking to prevent you (sic)
client from trading, but is
only protecting its own interests, and
has already agreed to releasing your client’s goods once they
are properly identified’.
The applicant’s attorney
responded
11
by pointing out that a
detailed list had already been supplied, that it was not possible to
identify the moulds further in writing.
He suggested again that the
applicant should be given an opportunity to point his moulds out.
[11] There was presumably
no positive reaction to the request for a meeting, because the urgent
application was launched on 21 October
2010. It was recorded in the
consent order that the respondent acknowledged that the moulds
described in the inventory were in
its possession, but claimed
ownership of them.
[12] The first issue
which I have to decide relates to which moulds the applicant took
with him when he joined the respondent. The
second issue concerns the
ownership of such moulds.
[13] The applicant says
in the founding affidavit
12
that after he and Van der
Merwe had signed the document pertaining to the proposed business
arrangement
13
he took all the moulds
which he then owned to the respondent’s premises. He did this
in anticipation of the new arrangement,
which provided that a close
corporation would be set up, which would take the moulds over. He
says these moulds are reflected on
the inventory.
14
The close corporation was
never set up and he says he accordingly remained the owner of his
moulds.
[14] The respondent does
not dispute that when the applicant joined it he brought some moulds
with him. Holm says in the answering
affidavit
15
that any moulds brought
by the applicant to the respondent’s premises were the property
of Elastomould Engineering. No basis
was laid for the acceptance of
this hearsay evidence, and it is inadmissible.
It
is also denied by the applicant. Holm says that he was told by two of
his managers that the applicant arrived at the respondent’s
premises with a maximum of ten moulds, some tools and a toolbox. The
two managers, Wellington Mbatha and Sheldon Miller, made confirmatory
affidavits in which they merely confirmed what Holm had said in his
affidavit relating to them.
[15] In his replying
affidavit the applicant says he made the moulds in question during
1986 and they were and remain his personal
property. He says they
never formed part of the assets of Elastomould Engineering CC, of
which he and his father were members.
With regard to the allegation
that he only took ten moulds with him to the respondent’s
property and that his vehicle was
too small to carry more, the
applicant says he used a transport company, Apcon Freight, to convey
his moulds to the respondent’s
premises. Annexed to his
affidavit are copies of a waybill and a delivery note which he says
reflect the signature of Sheldon Miller,
who acknowledged having
received the moulds (23 pieces) in good order and condition.
[16] There is no real
dispute on the papers that the applicant took the moulds reflected on
the inventory with him to the respondent’s
premises, and there
is no reason not to accept this evidence. The respondent’s
assertions in this regard are not supported
by any acceptable
evidence.
[17] The remaining issue
relates to the ownership of those moulds. There is nothing to
contradict the applicant’s evidence
that he made the moulds and
that they were his property. The basis on which the respondent
contests his ownership is that it bought
the moulds from him.
[18] Holm says in the
answering affidavit that in 2007 the applicant, ostensibly on behalf
of Elastomould Engineering, offered to
sell moulds to the respondent
which belonged to Elastomould. The respondent paid the applicant a
sum of R63 000 for such moulds.
Annexed to his affidavit is a
printout which he says reflects the payment of three amounts to the
applicant on 2 March 2007, 8
June 2007 and 21 June 2007, the total of
which is R63 000. He says the moulds were never delivered and he and
Van der Merwe confronted
the applicant about this. The applicant was
remorseful and in compensation for the R63 000 offered them a
concrete mixer, which
they accepted.
[19] Holm does not
dispute that he told the respondent’s attorney that some of the
moulds on the respondent’s premises
may have been the property
of the applicant. He says he subsequently realised, after he had been
reminded by Van der Merwe, that
the respondent had paid the applicant
for those moulds, and he refers to the printout which reflects the
three payments totalling
R63 000 in 2007. This assertion seems to be
based on Holm’s belief that the moulds which the applicant
brought with him belonged
to Elastomould and were the moulds which
the respondent had paid for the previous year. The applicant disputes
this, and there
is no evidence that this is so. The applicant says
the respondent ordered moulds from Elastomould in 2007, which it had
to manufacture.
It did not do so as it was unable to obtain steel.
Elastomould had a concrete mixer which it wanted to sell, which the
respondent
accepted in lieu of the R63 000. Holm does not dispute
this.
[20] There is no evidence
whatsoever that when the applicant joined the respondent there was an
agreement that the respondent would
acquire the moulds which he had
brought with him, either as a quid pro quo for the R63 000 or on any
other basis. In fact, the
respondent did not rely on any payment
other than the R63 000 which was made a year before the parties
signed the document pertaining
to the proposed business venture
16
.
The contention that the respondent purchased the moulds from the
applicant seems to me to be an afterthought. Not only is there
no
evidence to support it, it is also inconsistent with the
correspondence in which the respondent’s attorney said that
according to the respondent some of the moulds on its premises
belonged to the applicant and some to the respondent. That was the
reason why the attorney asked for a list of the moulds which the
applicant claimed belonged to him.
[21] The result is that
the applicant has established on the papers that he took the moulds
which are listed on the inventory with
him when he joined the
respondent, and that he owned them. Nothing has changed that. The
assertion that the respondent acquired
ownership of the moulds by
paying the applicant for them is no more than an assertion which is
unsupported by the evidence. There
is no evidence that the R63 000
which was paid the year before related to the moulds which are
reflected on the inventory, nor
is there any evidence that the
applicant at any stage intended to transfer ownership of the moulds
in question to the respondent.
[22] I accordingly make
the following order:
The respondent is ordered
to allow the applicant to remove from its premises the moulds which
are reflected on the inventory which
is annexed to the notice of
motion and marked ‘A’. The respondent is ordered to pay
the costs of the application.
_______________________
PLOOS VAN AMSTEL J
1
P
24
2
See
Buffalo Freight Systems v Crestleigh Trading
2011 (1) SA 8
(SCA) at
14 A-D
3
P
19
4
P24
5
P
20
6
P
22
7
P
23
8
P
25
9
P
26
10
P
27
11
P
28
12
P
8
13
P
19
14
P
24
15
P
36
16
P
19