Cherangani Trade & Invest 113 (Pty) Ltd t/a Brocor v Iannone and Another (447/2009) [2009] ZAFSHC 45 (26 March 2009)

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[2009] ZAFSHC 45
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Cherangani Trade & Invest 113 (Pty) Ltd t/a Brocor v Iannone and Another (447/2009) [2009] ZAFSHC 45 (26 March 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
N
o:
447/2009
In the matter between:
CHERANGANI
TRADE & INVEST 113
Applicant
(PTY)
LTD t/a BROCOR
and
ROBBIE
IANNONE
1
st
Respondent
(In Iannone Family
Trust)
CHARL
STANDER
2
nd
Respondent
(In his capacity as
conveyancer)
_____________________________________________________
JUDGMENT
BY
: KRUGER,
J
_____________________________________________________
HEARD
ON:
19 MARCH 2009
_____________________________________________________
DELIVERED
ON
: 26
MARCH 2009
_____________________________________________________
[1]
The
applicant obtained a rule
nisi
against the 1
st
respondent on 5 February 2009 calling upon the respondent to show
cause why an amount of R421 800,00 of the purchase price should
not
be kept in trust with the 2
nd
respondent pending the outcome of an action to be instituted by
applicant for that amount.
[2] The
R421 800 is the amount which the applicant alleges it is entitled to
as the commission on the sale of 1
st
respondent’s property. Applicant alleges that a portion (10%) of
the purchase price of R3.7m is earmarked to be paid to applicant.

Applicant states that R3 075 000,00 was already been paid into the
2
nd
respondent’s attorney’s trust account, and in the Answering
Affidavit of the 1
st
respondent says that the 1
st
respondent has other creditors, and applicant fears that they will
get the proceeds of the scale to applicant’s detriment. First

respondent says there is no reason for any fear by the applicant.
The 1
st
respondent has a property in which the equity is at least ½m
rand.
[3] Applicant’s
claim is based on the fact that the snag has been earmarked for
payment of its commission. Special rules of practice
have developed
in request of interdicts relating to money (See Harms,
Interdicts,
LAW SA, 2
nd
Edition, Volume II, par 409).
There
are also special rules in respect of the protection of the
respondent’s assets (MAREVA Injunctions). The Mareva injunction
is
often reflected to as an anti-dissipation order. In its applicant
where the applicant where the applicant fears that he will
obtain a
hollow judgment because by the time judgment is granted, respondent’s
assets will have been dissipated. Such interdict
preserves for the
benefit of all creditors such as the debtor may have (per Marais JA
in
MEIHUIZEN
FREIGHT (PTY) LTD v
TRANSPORTES
MARITIMOS DE PROTUGAL LDA
2005 (1) SA 36
(SCA) par [21]).
[4] The basis for a
Mareva injunction is to stop dissipation on the basis for a claim to
interdict money is that to money has been
earmarked. A claim for
money to be interdicted can be vindicatory or quasi vindicatory, e.g.
where funds are fraudulently obtained
or misappropriated (loc cit).
[5] In
this regard the following is stated in
STERN
AND RUSKIN NO v APPLESON
1951 (3) SA 800
(W) at 813 B – C:
“
The claims now
under consideration being neither vindicatory nor quasi-vindicatory
the applicants cannot obtain an interdict unless
they prove in
addition to a prima facie case an actual or well grounded
apprehension of irreparable loss if no interdict is granted.
In the
case of vindicatory or quasi-vindicatory claims this is presumed
until the contrary is shown. In the case of all other claims
it must
be established by the applicant for the interdict as an objective
fact. It is not sufficient to say that the applicant
himself bona
fide fears such loss.”
In such case there is a
heavier burden in obtaining the interim interdict it seeks:
“
'the very nature
of the respondent's occupation makes it possible that in the short
period of a month or two he may lose sums of
money running into
thousands of pounds to the prejudice of creditors.'
What the applicants
have to establish is that the respondent has no bona fide defence to
the action and that, objectively considered,
there are good grounds
for fearing that he intends to make away with his assets in order to
defeat the applicants' claims. (Yamomoto
v Rand Canvas Co.,
1919
W.L.D. 100
; Ncongwane v Molorane,
1941 OPD 125).
The applicants'
allegations, such as they are, are denied and there is no evidence
from which it is legitimate to infer that the
respondent has any such
intention. It was in the end argued that because the respondent
carries on what is said to be a very precarious
trade the applicants
should be protected against the possibility that he may lose the
money which ought to be available to satisfy
their claims if they
succeed in the action. This is in itself, no ground for an
interdict.”
[6] This
being neither an option for a Mareva injunction or a case where there
is a vindicatory claim to the money. The applicant
must show a
well-ground fear of inoperable loss. This is a factual enquiring.
The test is objective (
HILLMAN
BROS. (WET RAND) (PROPRIETARY) LIMITED v VAN DEN HEUVEL
1937 WLD 41
at 36).
[7] Whether money is
identifiable with or has been earmarked is a factual enquiry.
(1) In
HENEGAN
AND ANOTHER v JOACHIM AND OTHERS
1988 (4) SA 361
(D) a claim was made in respect of a payment provided
for in the founding agreement of a close corporation. The applicant
claimed
payment of this money from the 1
st
applicant. It transpired that the founding agreement provided that
R100 000, would be paid by the close corporation to the third

respondent. The counter found that the amount of R124 500 claimed by
the applicants “was not ‘earmarked’ by the founding
agreement
as a fund which is ordained to be kept intact.” (p. 365 D – E)
The court also found:
“The mere fact that some part of the sum can be traced back to the
applicants does not mean that the money
was either ‘earmarked’ or
a ‘fund’” (365 F – G). The court found that the R100 000 was
‘identifiable’ as part
of the purchase consideration. It could
thus perhaps be said that sum thus become identifiable with a
“particular fund”, as
approved to being “earmarked” (at 365 I
– J).
(2) In
NIEUWOUDT
v MASWABI NO AND OTHERS
2002 (6) SA 96
(O).
As to
fear of irreparable loss, Mr Reynders, for the applicant submits
that the 2
nd
respondent, on behalf of the 1
st
respondent informed applicant’s attorneys that there are other
creditors of the 1
st
respondent informed applicant’s attorneys that there are other
creditors of the 1
st
respondent’s trust who were indicating that their claims will be
paid out of the proceeds of the sale. Respondents are not
prepared
to disclose information regarding those creditors. Applicant fears
that some of the creditors may not be creditors
of the trust, and it
would be to applicant’s ____________ if those creditors were to be
paid by the trust.
Respondent, in its first
answering affidavit says at p. 65:
“
6.4 I am advised
that the first leg of the so-called “
Meriva
Injunction”
is therefore not proven, even on a
prima
facie
basis.
6.5 Secondly,
Applicant’s submission in paragraph 29 that the trust may not be
able to satisfy a future judgment is based upon
supposition and is
nothing less than a proverbial fishing expedition. Applicant has
barged into court on an urgent basis without
fully ascertaining the
facts. The trust possesses fixed property in the Ferreira district
of Bloemfontein which has a nett value
of at least
R550
000-00.
This information could easily have been ascertained via a deeds
search, or by contacting Second Respondent.
Thirdly, there is no allegation in
the papers that the trust is divesting itself of funds, or likely
to do so with the intention
of defeating the claims of creditors.
No particular state of mind to do so has been shown and I am
advised that the interdict
sought cannot therefore be granted.
6.7 There is not
even
prima
facie
proof of a well-grounded apprehension of irreparable harm.”
In
the replying affidavit the applicant argues that the fear of
dissipation flows from the absence of a denial that other creditors

are making claims. As to the property to which 1
st
respondent refers, and says he has no idea of its settlement value.
The applicant does not say why it did not check in the Deeds
Office.
Applicant says that the fact that other creditors want to lay claim
to the proceeds of the sale proves a well-focused
application of the
irreparable harm (p. 73, subsection Ad 6.7).
In
the second answering affidavit 1
st
respondent gives more details of its other property (p. 84,
subsection 13).
In
the 2
nd
replying affidavit the applicant says that the 1
st
respondent does not state who estimated the value of the property at
R1m.
_____
__________
A
.
KRUGER, J
/E
M