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2024
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[2024] ZANCHC 20
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Hanekom Plant & Civils cc v Kopaneng Construction & Civils (Pty) Ltd and Others (2038/2023) [2024] ZANCHC 20 (8 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Not
Reportable
Case
No: 2038/2023
In
the matter between:
HANEKOM
PLANT & CIVILS
CC APPLICANT
And
KOPANENG
CONSTRUCTION & CIVILS (PTY) lTD FIRST
RESPONDENT
EZRA
BRIDGITTA MOUERS SELBORNE SECOND
RESPONDENT
THE
GAP INFRASTRUCTURE CORPORATION (PTY) LTD THIRD
RESPONDENT
PIETER
STEYN LANGE
N.O.
FOURTH RESPONDENT
ALBERTUS
JACOBUS HANEKOM N.O.
FIFTH RESPONDENT
ISABEL
ELIZABETH HANEKOM N.O.
SIXTH RESPONDENT
Neutral citation:
Hanekom Plant & Civils CC v Kopaneng Construction &
Civils (Pty) Ltd and Others
(Case no 2038/2023) (08 March 2024)
Heard:
10
November 2023
Delivered:
08 March
2024
JUDGMENT
Phatshoane
AJP
Introduction
[1] The
present proceedings, instituted on 03 November 2023 on an urgent
basis, were essentially about the
preservation of certain monies to
obviate an alleged dissipation pending the settlement of the dispute
between the parties or final
outcome of the trial in due course. The
applicant, Hanekom Plant & Civils CC (HPC), sought a rule nisi
calling upon Kopaneng
Construction & Civils (Kopaneng), Ms Ezra
Bridgitta Mouers Selborne (Ms Selborne), The GAP Infrastructure
Corporation (Pty)
Ltd (GIC), Mr Pieter Steyn Lange N.O, Mr Albertus
Jacobus Hanekom N.O, and Ms Isabel Hanekom N.O (the first to the
sixth respondents)
to show cause on the return date why a final
order, substantially in the following terms, ought not to issue.
1.1 That
the third respondent, GIC, be interdicted from paying out any amounts
due to the first respondent,
Kopaneng and or the Second respondent,
Ms Selborne, in respect of a certain Opwag Project pending an
agreement between HPC and
Kopaneng on the payment thereof to HPC or
Kopaneng or pending the outcome of the action to be instituted by HPC
against Kopaneng
within 30 days from the date of confirmation of the
rule nisi.
1.2 That
GIC be ordered to pay the aforesaid amounts, when they became
payable to Kopaneng, into HPC’s
attorneys trust account pending
the agreement between HPC and Kopaneng on the payment thereof to
either HPC or Kopaneng or pending
the outcome of the action.
[2] On
10 November 2023, the date of the hearing of the application, HPC,
Kopaneng and Ms Selborne handed
up an order by consent on terms
identical to the relief sought in the Notice of Motion which was made
an order of this Court. What
remained to be considered was the
question of wasted costs occasioned by the postponement of 03
November 2023 and the costs of
the application.
HPC’s case
[3] HPC
owns numerous earthmoving machines and plant Hire equipment.
According to HPC, Kopaneng was registered
in 2020 so as to increase
demand for the rental of the said equipment. Ms Selborne and a
certain Mr Hansie Hanekom were the
directors of Kopaneng and each
held 51% and 49% shares, respectively, in Kopaneng. Mr Hansie
Hanekom’s shares were
later transferred to Hanekom Family
Trust. HPC further states that it was agreed between Mr Hansie
Hanekom and Ms Selborne that
Hanekom would manage the payments of
accounts for Kopaneng.
[4] On
20 May 2022 GIC appointed Kopaneng to conduct the earthmoving works
for some erven situated near Groblershoop,
Northern Cape, referred to
as the Opwag Project (the project), which commenced during June 2022
for a period of a year and would
end mid-2023. Later in that
year, on 04 August 2022, HPC entered into an agreement with Kopaneng
in terms of which Kopaneng
would lease earthmoving equipment from HPC
at a certain hourly and cubic meter rate. Rental deposits for the
equipment and overtime
were dispensed with. HPC would also provide
technical expertise and financial assistance to Kopaneng, refuel the
equipment and
recover its costs from Kopaneng. HPC intimates that, in
light that Kopaneng was unable to obtain finance for its operational
costs,
HPC largely funded the project costs, diesel and salaries.
[5] HPC
invoiced Kopaneng in terms of the lease which in turn invoiced GIC
for work done in respect of the
Opwag project. HPC states that Ms
Selborne, in order to be up to date with Kopaneng’s finances,
had access to a certain Xero
Computer program on which management
reports were generated. HPC maintains that it had complied with its
contractual obligations
in terms of the lease.
[6] According
to HPC Kopaneng is indebted to it in an amount of R6 386 902.08. It
further says that Kopaneng
does not possess assets of any significant
value save for some small amount in its bank account. HPC went on to
state that, based
on the management reports, Kopaneng’s
liabilities far exceeds its assets.
[7] The
amount allegedly due to Kopaneng for payment by GIC, in respect of
the Opwag Project, is R2 554 161.74
excluding VAT and consist of 10%
retention fee for the project. 5% of the retention fee would be
payable by GIC to Kopaneng upon
receipt of the final completion
certificate and the remaining 5% would be payable in July 2024, a
year after the final completion
certificate had been issued. HPC
fears that should GIC pay any of the amounts it owes Kopaneng, the
latter would not be able to
discharge its payment obligation to HPC
which holds no security for any monies due to it.
[8] HPC’s
attorneys dispatched a letter of demand dated 05 October 2023 to
Kopaneng for the payment
of R6 386 902.08. In addition, Kopaneng was
placed on terms that unless an agreement was reached on the payment
of HPC’s
outstanding debt, HPC would apply to this Court for
the liquidation of Kopaneng.
[9] HPC
states that Ms Selborne had on 16 October 2023 removed Mr Hansie
Hanekom as a director of Kopaneng
which left her as the only
remaining director. It further says that Ms Selborne took steps to
take control of Kopaneng’s
bank account with the intention not
to pay the amounts due to HPC. HPC is of the view that Ms Selborne
may dissipate any monies
GIC paid to Kopaneng. Should HPC not obtain
the relief it seeks, it was contended, it would be impossible for it
to recover any
monies due to it from Kopaneng or Ms Selborne.
The case for Ms
Selborne and Kopaneng
[10] Ms
Selborne attested to an answering affidavit on behalf of Kopaneng and
herself. HPC initially
took issue that Ms Selborne could not
represent Kopaneng. As support for this contention HPC relied on
Yates
Investments (Pty) Ltd v Commissioner for Inland Revenue
[1]
where
it was held that
an
artificial person, such as an incorporated company, cannot, as a
general rule, be represented in a High Court except by an advocate or
by an attorney with the right of appearance. It was contended for HPC
that Kopaneng was not properly before court. However, on
the date of
the hearing of the application Mr RL Kruger, a practising advocate,
appeared for Kopaneng and Ms Selborne.
[11] Ms
Selborne submitted that the application was an abuse of court process
and not urgent. She denied
the allegations set out in the founding
papers. In particular,
she disputed that Kopaneng owed
the specified amount to HPC and
said
that HPC inflated and duplicated its invoices. According to Ms
Selborne, HPC owes Kopaneng R7.2 Million, for which it would
have a
counterclaim. She also disputed that Kopaneng
was
trading in insolvent circumstances. In her view,
HPC
attempted to evade a forensic investigation and invoice review or
verification process already embarked upon by Kopaneng and
herself by
launching the present application which was intended to delay and
frustrate the said investigation. She held the view
that Kopaneng was
used as a front and that HPC dealt with the Opwag Project in a
fraudulent manner.
[12] Ms
Selborne further intimated that any funds held by GIC would be safer
if deposited in Kopaneng’s
accounts than placed in HPC’s
hands. In any event, she intimated, the application may be rendered
academic due to the impending
forensic investigation which, she says,
the parties ought to have agreed on a time-line for its completion.
She contended that
it was not in the interest of justice to grant the
application as it was fatally flawed and fell to be dismissed with
costs.
HPC’s
brief reply
[13] HPC
repeatedly stated in its replying affidavit that it was also
“desirous to fairly and amicably
resolve the matter” and
to cooperate with the investigation suggested by Ms Selborne as this
would avoid the incurrence of
further litigation costs. However, HPC
states that it is unaware of any forensic investigation which
Kopaneng and Ms Selborne commissioned.
It says that it had no choice
but to file the application to obviate any dissipation of the funds
that GIC would pay to Kopaneng
in due course.
Discussion
[14] The
dispute with regard to the amounts the parties owed to each other may
well be considered at the
hearing in due course. It is not in dispute
that GIC is holding certain amounts due for payments to Kopaneng.
What the proposed
relief does is to temporarily preserve or safeguard
the said monies, through their payment into HPC’s attorneys
trust account,
pending the agreement between the parties regarding
the allocation of those funds or the outcome of the action concerning
the funds.
[15] Save
to state that she has commissioned a forensic investigation into the
affairs of Kopaneng and its
accounts with HPC, Ms Selborne failed to
show what prejudice she stood to suffer if the relief was to be
granted. Regardless of
this application, there was nothing preventing
the parties from pursuing the investigation and verifying the amounts
they allegedly
owe each other. Ms Selborne also did not demonstrate
that Kopaneng had sufficient assets (movable or immovable) to satisfy
the
present HPC’s claim were it to be found to be legitimate at
the hearing in due course. She also did not controvert evidence
that
HPC was its main creditor and held no security for its claim.
[16] In
my view, the application was sufficiently urgent and warranted being
heard on a truncated basis because
nothing barred GIC from paying out
Kopaneng in respect of the project. HPC had a clear right to have the
monies protected pending
the agreement or the outcome of the action;
it also had no alternative remedy but to approach this court and
would suffer irreparable
harm if the interdict, which stood to
benefit all parties, was not granted.
T
he
balance of convenience favoured HPC with very little inconvenience to
Kopaneng and Ms Selborne. Accordingly, I am of the view,
that the
opposition was not well-founded.
[17] When
this matter was called in Court on 03 November 2023 Ms Selborne
appeared in person and sought
a postponement to enable her
to
secure the services of a legal representative. There can be no
question that
the
application for the postponement interfered with her opponent's
procedural right to proceed with the application. However, she
was
granted that
indulgence whereas the wasted costs
occasioned thereby were reserved for later argument and
determination. Any prejudice resulting
from a postponement is
ordinarily cured by an appropriate costs order. T
he
usual rule is that the party responsible for the postponement must
pay the wasted costs.
It follows that Kopaneng and Ms
Selborne ought to pay the wasted costs occasioned by the
postponement.
[18] On
the aforegoing exposition, HPC would have succeeded in obtaining the
relief sought.
No persuasive
argument was made to depart from the general principle
that costs ordinarily follow the event. In the result,
Kopaneng and Ms Selborne would have to bear the costs of the
application jointly and severally.
An order is
therefore made:
Order:
1.
The
first and second respondents, Kopaneng Construction & Civils
(Pty) Ltd and Ms Ezra Bridgitta Mouers Selborne, are to pay
costs of
the application jointly and severally, the one paying the other to be
absolved.
2.
The
first and second respondents are to pay the wasted costs occasioned
by the postponement of
03
November 2023
jointly and severally,
the one paying the other to be absolved.
MV PHATSHOANE AJP
Appearances:
For the
applicant:
Adv AG Van Tonder
Instructed
by:
Duncan & Rothman Inc, Kimberley.
For the
respondents:
Adv RL Kruger
Instructed
by:
The second respondent (
in person
)
[1]
1956 (1) SA 364
(A)