About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 137
|
|
Atlantic Oil Inland (Pty) Ltd v Nellock Motors CC and Others (4314/2023) [2024] ZAFSHC 137 (6 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
:
YES/NO
Of
Interest to other Judges
:
YES/NO
C
i
rculate
to
Magistrates:
YES/NO
Case
no:
4314/2023
In
the matter between
:
ATLANTIC
OIL INLAND(PTY) LTD
APPLICANT
and
NELLOCK
MOTORS CC
1
st
RESPONDENT
FRITZ
WEILBACH EIENDOMME CC
2
nd
RESPONDENT
JOHAN
FREDIRIK WEIBACH
3
rd
RESPONDENT
REGISTRAR
OF
DEEDS
BLOEMFONTEIN
4
th
RESPONDENT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
30 NOVEMBER
2023
DELIVERED
ON:
06 MAY 2024
[1]
The Applicant
initially sought final relief in the form of specific performance on
the motion of two written agreements as well
as interim interdictory
relief against
the
respondents
.
In the Heads
of Argument
and
during
the hearing
before me, the
Applicant now seeks alternative prayer for interim relief against the
Respondents pending the finalisation of this
matter.
[2]
The following
facts are common cause: The First Respondent is the owner of two
service stations in Ladybrand which conduct business
under the names
Panorama Motors and Autorama Motors
.
Prior to 10
June 2022, the First Respondent had been purchasing petroleum fuel
products from the company known as Atlantic Oil Inland
Propriety
Limited.
[3]
On
1 July 2022 the members of the Applicant met the Third Respondent at
his home in Ladybrand where a written installation and supply
agreements annexed to the papers and marked Annexures
'OA
1'
an 'OA2' were signed by the First Respondent. These agreements were
backdated
.
It
is common cause that the Third Respondent signed the said documents
without reading them
.
[1]
[4]
The version of
the Applicant is that during 2013 and 2015 respectively, it and the
First Respondent entered into a verbal agreement
in terms of which it
sold and supplied petroleum fuel products to the First Respondent's
two service stations. This verbal agreement
remained in place until
it was replaced.
[5]
During
December
2020
or
the beginning
of
2021 the
Applicant
and
the
First and
entered into a further verbal agreement. The material terms of this
agreement
were,
inter
alia,
that
the
Applicant
would
refurbish
and/or
rebuilt and
/or upgrade the service stations of the First Respondent by
installing high volume suction pumps, hose suction pumps,
steel
tanks, composite bonded tanks, and rebrand the service stations as
Atlantic Oil service stations
.
The
Applicant
alleges
that
it
was
an
express,
alternatively
implied,
alternatively
tacit term
of
the third agreement
that such an
agreement
would
in due course
be reduced to writing. This verbal agreement contained various terms
like the duration
of
the
agreement
,
that
the
tanks
and
equipment
would
remain
the property
of the Applicant, that the First Respondent would purchase petroleum
products exclusively
from the
Applicant;
terms relating
to the quantity to be
sold
and dispensed on at given intervals
,
maintenance
and a hist of other numerous terms.
[6]
The Applicant
avers that this agreement was implemented and refurbishment completed
during 2021
.
It is the case
for the Applicant that initially the First Respondent complied with
the terms of the agreement
.
and purchased
petroleum products solely from the Applicant. According to the
Applicant, the last order for the purchase of petroleum
products it
received from the First Respondent was on 10 June 2022.
[7]
It is the case
of the Applicant that it became aware that the First Respondent had
started to purchase the petrol products from
another entity called
Lesotho Petroleum
.
Pursuant to
this Mr Oosthuizen
,
an employee of
the Applicant avers that he contacted the Third Respondent and the
latter informed him that he was
in
the process of
selling the business
.
The Third
Respondent further confirmed that the Third agreement would be
replaced by a written installation and supply material
agreement to
ensure that the oral agreement was reduced to a written agreement.
[8]
According to
Oosthuizen
,
the Third
Respondent confirmed the sale of the business to him on 1 July 2022
to one Mr Halse
.
The First
Respondent also confirmed that the purchaser was aware of the terms
of the installation and supply agreement. Oosthuizen
confirmed that
the Third Respondent is still the controlling member of the First
Respondent. Oosthuizen alleges that First Respondent
signed the
supply and installation agreement in 2022 but same was backdated to
25 June 2021 as the written agreements would apply
retrospectively
from the stage that the service stations were rebuilt and/or
refurbished and/r or upgraded
.
.
[9]
According
to
Oosthuizen,
the
Third
Respondent
also
signed
a
so-called
'consent
to
landlord'
in
which
the
landlord
acknowledged
the
agreement
between the First Respondent and Atlantic Oil Inland (Pty)Ltd in
respect of the premises as well as the requirement to
the
registration of a servitude
.
The Third
Respondent,
according
to
Oosthuizen
signed
a
power
of
attorney
to enable the
registration of the servitude over the immovable property in favour
of the Applicant. It appears that Oosthuizen contacted
the purchaser,
Mr Halse around August 2023 and also sent the agreements and the
prices but nothing bore any fruit.
[10]
.
It
is submitted on
behalf of the Applicant that there is a contractual relationship
between the Applicant, the First and Second Respondents.
The
Applicant contends that it has a contractual right to enforce which
is currently being infringed by the conduct of the First
and Second
Respondents
.
[11]
The
Respondents' version as narrated by the Third Respondent is as
follows: The First Respondent had a business relationship with
the
Applicants which dates back few years prior to the dispute before me.
The First Respondent has purchased petroleum products
from Atlantic
Oil Inland Proprietary Limited for a few years. It is disputed that
the First Respondent entered into any verbal
agreement with the
Applicant during 2013 and 2015. It is further disputed that the First
Respondent concluded a new installation
and supply agreement. It is
submitted that in view of the fact that the First Respondent did not
enter into this latter agreement,
it follows that it cannot be in
breach thereof.
[12]
According to
the Third Respondent, on 1 July 2022 he had a visit at his home from
Messrs Oosthuizen, Van Vuuren and Me Fourie. The
visit lasted for
about 45 minutes
.
When this
visit took place, Oosthuizen, Van Vuuren and Fourie were aware that
the Third Respondent was no longer involved in the
business of the
First and Second Respondents as he had sold his member's interest in
those two entities. The three informed him
that they needed his
assistance and that he should complete some documents for them to get
their paper work in order.
[13]
According to
the Third Respondent, he was provided with documents (Annexures AO1
and AO2 of the founding affidavit). These documents
comprised a total
of 106 pages
.
He was asked
to initial and sign them. He duly signed same in circumstances as
indicated in the previous paragraph. He is adamant
that when he
signed the said documents,
he did not
know that he
was
signing the agreements in the form of Annexures A01
and A02
,
nor did he
suspect that he was signing such agreements
.
He insists
that he was misled into signing the said agreements. According to him
when he signed the said agreements
,
he was not
alerted to the true nature of the documents he was asked to sign
.
[14]
The
requirements for the granting of an interim interdict are trite. In
order to obtain interim relief, the applicant must establish
the
following
:
A
prima facie right even though open to some doubt
;
a
well
-
grounded
apprehension of irreparable harm if the interim relief is not
granted; that the balance of convenience favours the granting
of an
interim relief and
;
the lack of
another satisfactory or adequate remedy in the circumstances
.
[15]
It
is settled that application procedures are designed to deal with
legal issues on common cause facts
[2]
.
In
Plascon
-Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd
[3]
the
court held as follows:
"It
is correct that
,
where in
proceedings
i
n
motion disputes of fact have arisen on the affidavits, a final order
,
whether it be
an
i
nterdict
or some other form of
r
elief,
may be granted if those facts averred in the applicants affidavits
have been admitted by the respondent, together with the
facts alleged
by the respondent
,
justify an
order
.
"
Wightman
t/a
JW
Construction v
Headfour (Pty)
Ltd
and
Another
reiterated
that
"
an
applicant who seeks final relief on motion must
,
in the event
of conflict
,
accept the
version set up by his opponent unless the latter
'
s
allegations are
,
i
n the opinion
of the court
,
not such as to
raise a real genuine or bona fide dispute of fact or are so fa
r
fetched or
clearly untenable that the court is justified in rejecting them
merely on the papers
.
..
"
The
court in this case went further and said
:
"
[13]
A real, genuine and bona fide dispute of fact can ex
i
st
only where a court is satisfied that the party who purports to raise
the dispute has in his affidavit strongly and unambiguously
addressed- the fact said to be disputed
.
"
[16]
In
Simon
NO
v
Air
Operations
of
Europe
AB
and
Others
[4]
the
following
was
said:
"The
accepted test for prima facie right in the context of an interim
interdict is to take the facts averred by the applicant,
together
with such facts set out by the respondent that are not or cannot be
disputed and to consider whether
,
having regard
to the inherent probabilities
,
the
applicant
should on those facts obtain final
relief
at the trial.
The facts set up in contradiction
by
the respondent should then be cons
i
dered
and,
if
serious doubt
is thrown upon
the
case of the
applicant, he cannot succeed."
[17]
It
is
common cause
that
the
First
Respondent'owns
two
service
stations
which conduct
business under the names Panorama Motors and Autorama Motors. It is
also common cause that the First Respondent had
a business
relationship and purchased petroleum products from the Applicant.
Although there seems to be a dispute about the entity
from which the
irst
Respondent purchased the products from, such dispute in my view
revolves
·
around
typographical error or is a clear mistake
.
Such mistake
has no bearing to the dispute between the parties
.
[18]
The case of
the Applicant is premised on three agreements allegedly entered into
between the Applicant and the First Respondent.
The relief sought
against the Second and Third Respondents is dependent on the alleged
agreement between the Applicant and the
First Respondent. The
Applicant relies heavily on the written agreement which it alleges is
simply the second verbal agreement
reduced to writing by consent of
the Third Respondent. What is clear about the alleged second verbal
agreement is that it is not
correctly pleaded as required by Uniform
Rule 18. Full particularity is lacking in it.
[19]
It is
undisputed in my view that the First Respondent signed the written
installation and supply agreement. What is also undisputed
is the
fact that the Applicant spent large sums of money to refurbish and
rebrand the two service stations. What is however in
dispute is the
terms pertaining to such rebranding and refurbishment.
[20]
The
Applicant contended initially that the third written agreement was
entered into on or about 25 June 2021
[5]
.
It
was at that early stage pointed to the Applicant that the members of
the Applicant visited the First Respondent during June 2022
where
various documents were presented for signature
.
A
request was then made by the attorneys of the Respondent to be
furnished with the documents alleged to have been signed during
June
2021.Upon this date of the signature being raised, the Applicant
capitulated and averred that the written agreement was actually
signed in June 2022 but backdated to 25 June 2021
"as
agreed
by both parties to reflect the intention of the parties that the
written agreements operate retrospectively.
"
The
backdated date is alleged to coincide with the stage that the service
stations were rebuild or refurbished.
[21]
I find it
difficult to accept this explanation
.
The Applicant
does not explain why, the
Third
Respondent,
if
he
knew
of
the
2021
agreement
would
ask
his attorneys
to seek same from the Applicant's attorneys for perusal. The issue
that the written agreement was backdated was disputed
right from the
beginning. In spite of the contention by the Applicant that the
parties agreed that the effective backdated date
would be 25 June
2021, both Annexures AO1 and AO2 provides that the agreements would
commence on 1 January 2021, being the
"effective
date"
.
Even on its
own version, there is a discrepancy in the version of the Applicant
about the so called back dated date.
[22]
The evidence reveals
that on 22 September 2022 the Third Respondent and his late wife
concluded two written sale agreements in terms
of which they both
sold their entire members interests in the First and Second
Respondents to AC Halse Trust for a total amount
of R8 000 000
.
00.
Proof of such payments were admitted into evidence which evidences
those payments were made into the account of the Third Applicant
on 7
June 2022
.
The effective
date of the sale of both agreements is 1 June 2022.
The said trust
performed in terms of the agreement and paid the agreed price in
full
.
If
one
were
to
accept
that
such sale
took
place
as
alleged
by
the
Third
respondent, then
one
would
surely also
have to accept the
contention by the Third Respondent
that on 1 July
2022 when the alleged
written
agreement
was signed, he
was no longer involved with the business
of the First
and Second
Respondents.
The date of
payment of the purchase price clearly shows that when the Third
Respondent had a meeting with the members of the Applicant,
the
applicant had already sold and received the purchase money. The
contention of the Third Respondent is that the outstanding
issue
remaining in the sale transaction was the formal registration. This
in my view caters for the contention by the Applicant
that the Third
Respondent
was
still the
controlling
member
of the First
Respondent.
[23]
Much argument is made on behalf of the Applicant that in a letter
dated 14 December 2022 it is said that
the Respondents attorneys
acted for the Third Respondent on behalf of the First Respondent.
This may be so but one has to read
the whole letter in order to
understand the context in which it was written. The attorney
indicated that they were not able to
"comprehensively consult"
with the Third respondent and requested an indulgence to do so.
Clearly upon comprehensive
consultation the true facts came to the
fore
.
[24]
The
second
verbal
agreement
does
not
refer
to a servitude
to be
registered
.
The power of
attorney as well as the annexures attached to schedule 6 of Annexure
AO1 are incomplete
.
All these go
to the heart of the credibility
of the
Applicant. The First respondent,
about 83 years
at the time led evidence as to the circumstances under which he
signed the written agreements.
He denies that
he knew
what
he was
signing
and
is adamant
that
he
was
misled
in signing the
agreement. This is obviously denied by the applicant and gives a
wholly divergent view as to how the documents were
signed
.
I however
cannot ignore the facts that it is admitted that the Third Respondent
did not read the documents
himself.
The documents
were
voluminous
for
an old man of
83 years and contained complex
legal terms
.
The time taken
to have this discussion was less than an hour
[25]
It cannot be disputed
that the Applicant refurbished the two service stations
.
In my view
because of the serious dispute about whether there was an agreement
or otherwise to refurbish the service stations as
well as the terms
of the
refurbishment and the fact that the business has been sold, I have to
exercise my discretion to refuse the granting of the
interim order
.
The Applicant
ought to have foreseen during correspondence with the attorneys for
the Respondents that there will be a serious dispute
of fact. It is
unnecessary for this court to decide whether a proper case has been
made out because even if I were to find that
such a case has been
made out, this court still possessed a wide discretion to decline
same. The fact that the Respondents deny
the agreement
,
they allege
that the true nature of the agreement was not explained to him
,
that he was
misled into signing the agreement, that the service stations have
been sold and AC Halse trust has not been joined although
the
Applicants are aware of the interest the trust may have in the
outcome of this matter calls for this court to decline to grant
the
interim order
.
In my view
this matter would best be ventilated in the action proceedings as
there a number of issues which cannot be resolved on
papers
.
I accordingly
make this order:
ORDER
1.The
application is referred to the trial court
;
2.The
Notice of Motion shall stand as a simple summons
;
3.
The Applicant
shall deliver a declaration in terms of Rule 20 within 30 days from
date of this order
;
4.
The rules of
this court will apply in the further prosecution of this matter
;
5.
The costs of
this application shall be costs in the cause.
P.E.
MOLITSOANE, J
On
behalf of the Applicant:
Adv
.
HJ de Wet
SC
Appearing
with:
Adv
R Britz
Instructed
by
Matsepes
BLOEMFONTEIN
On
behalf of the 1
st
, 2
nd
and 3
rd
Respondents:
Adv.
N Snullenburg SC
Appearing
with
:
Adv.
WJ Groenewald
Instructed
by
Matsepes
BLOEMFONTEIN
[1]
See
AA
page
202
para
57
.
7
and
RA
page
26
1
para
4
.
16.
[2]
Nation
a
l
Dir
ec
tor
of Publi
c
Pros
e
cu
t
ion
s
v
Zum
a
[
2
00
9
]
ZA
SC
A
I
;
200
9(2
)
S
A
2
77
(
SCA
)
a
t
2
28
.
[3]
[198
4
]
Z
A
SCA
55
;
1984(
3
)
S
A
6
23(
A
).
[4]
1999
(1) SA
2
1
7(SCA)
at
228.
[5]
See
paginated
record
page
161
.