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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 336
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Independent Petroleum Group v Energy for Africa (28244/08) [2009] ZAGPPHC 336 (26 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: 28244/08
DATE:
2009-05-26
In
the matter between:
INDEPENDENT
PETROLEUM
GROUP Applicant
and
ENERGY
FOR
AFRICA Respondent
JUDGMENT
HARTZENBERG
J
:
This is an application for the liquidation of the respondent company.
The main issue between the parties revolves around an agreement
in
terms of which an oil tanker containing gas arrived in the Durban
harbour and the respondent company was required to provide
a letter
of credit and to accept 30 000 tons of liquid gas.
There
were a number of e-mails sent to the respondent company
insisting
upon the production of the letter of credit and insisting upon the
respondent company taking possession of the substance.
Eventually the
liquid gas was sold by the applicant company, and it is alleged that
the applicant suffered damages in that it had
to sell at a lesser
price, that there was demurrage and that there was extra transport
costs involved.
The
respondent disputes the validity of the claim, and which is common
cause, refers to the fact that the agreement upon which the
applicant
relies, specifically provides that the agreement will be governed by
the laws of England.
Then
the defence is that there was a condition precedent to the agreement
and that it was well known between the parties that the
respondent
company could not take possession of more than 8 500 tons of this
substance. The allegation is that some of the major
companies like
Caltex or Shell or so, had to come into the picture.
Mr
Leibowitz, who it is clear does not believe a word that Mr Eymond
says, argues that the respondent company has not disclosed
in the
papers a bone fide defence, and he argues it on basically two bases.
The first is he says that the correspondence through
e-mails and
later letters do not from the outset indicate that there was this
pre-condition and that the pre-condition on which
the respondent
company relies is an afterthought. Then he says that the
probabilities are so strong against the acceptance of such
a
pre-condition, that the court can safely reject it on that basis. He
argues that if, and I will deal with the pre-conditions
just now,
that if the respondent company could only take 8 500 tons, then why
at least did it not buy 8 500 tons at the time when
the oil tanker
appeared in the Durban harbour?
On
the other hand it is clear that at an early stage it was stated on
behalf of the respondent company that in trying to raise a
letter of
credit or get a letter of credit, there were compiications with the
bank and that a situation could arise where the respondent
could only
get a letter of credit for 8 500 metric tons. That fits in with what
was later on explained by the respondent, and that
communication
dates back to 15 February, which is the very beginning of the
communications on which Mr Leibowitz relies.
The
pre-condition relied upon is that the majors had to get onto the
picture and that there had to be some sort of a consortium
buying.
The respondent company refers to the very same agreement upon which
the applicant relies, but added to it are the words:
“plus
consortium (third parties), which Mr Eymond on behalf of the
respondent company explains as follows, he says that he
received the
agreement, he added those words, signed the agreement and sent it
back to the applicant, but that it was clear between
the applicant
and the respondent that that was the agreement.
I
find it impossible on the papers to come to the conclusion that the
defence raised by the respondent company is not a bone fide
defence.
In the circumstances the application for liquidation cannot succeed.
Mr Leibowitz on behalf of the applicant argues that
the matter in
those circumstances has to be referred to evidence so that the
evidence of the two main parties can be tested and
the court can come
to a conclusion.
I
would have acceded to that request but for one circumstance, and that
is the fact that the agreement upon which the applicant
relies and
which is the only source for a claim against the respondent company
provides that the parties are bound by the laws
of England. The
situation may therefor arise that eventually the court decides in
favour of the applicant and that the respondent
company is liquidated
and liquidators are appointed. But even then it is still possible
that it will be necessary to revert to
the English courts for clarity
about the amounts involved. In those circumstances I do not think
that it would be prudent of this
court to refer the matter to
evidence where it was evident to the applicant that the claim was
disputed. In all the circumstances
the application is dismissed with
costs.
DATE
OF JUDGMENT:
26 MAY 2009
ON
BEHALF OF APPLICANT:
D G LEIBOWITZ
ON
BEHALF OF RESPONDENT: FJ ERASMUS