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[2024] ZAKZPHC 85
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Landto Resources Company Limited v Motech Logistics RSA (Pty) Ltd (2913/2024P) [2024] ZAKZPHC 85 (21 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case number:
2913/2024P
In the matter between:
LANDTO RESOURCES
COMPANY LIMITED
APPLICANT
And
MOTECH LOGISTICS RSA
(PTY) LTD
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
On 27 February 2024 Applicant brought an application for the return
of 8 horse and trailers (trucks)
which it alleged are in the
possession of Respondent. Further that in the event of
Respondent not complying with the order
that the Sheriff be entitled
to remove the said trucks where they may be found and costs.
The application is opposed by Respondent.
[2]
On 25 September 2023 Applicant and Respondent entered into a
transport and delivery agreement.
A copy of which is attached
to the papers.
[3]
Applicant alleges that Respondent was indebted to it for $949 780.00
due to non-payment.
On 20 January 2024 Applicant informed
Respondent that it was not taking any new bookings. On 7
February 2024 Respondent unlawfully
took possession of 8 of
Applicant’s trucks. On 27 February 2024 Applicant brought
this application.
[4]
On 28 February 2024 Respondent brought an
ex parte
application
on an urgent basis before Z P Nkosi J to attach certain trucks of
Applicant to confirm jurisdiction as Applicant is
a peregrines being
a company registered in Zambia. Respondent wanted the security
for a contractual claim of R 80 00 000.00
that it had against
Applicant due to breach of an agreement between them. On 28
March 2024 Applicant brought an application
to have the order of Z P
Nkosi J reconsidered before Pitman A.J. An order was granted
that the order by Z P Nkosi J be set
aside and that the vehicles
which were in the possession of Respondent be returned to Applicant.
[5]
On 7 March 2024 Applicant’s attorney, by letter, informed
Respondent that the agreement
was cancelled as Respondent was
informed by Applicant on 20 January 2024.
[6]
On 22 May 2024 an order was granted by consent after Applicant
brought an application that 8 specific
trucks mentioned in the
application be removed from the possession of Respondent and be held
in storage by the Sheriff of the High
Court, Camperdown. The
trucks are thus at present under the control of the Sheriff.
[7]
Respondent also brought an application to strike out certain of the
paragraphs in Applicants founding
affidavit and a further application
to file further affidavits. It was contended that the matters
raised in these affidavits
only came to its knowledge after it had
filed its answering affidavit. Answering and replying
affidavits were filed herein.
These issues were not opposed at
the hearing by Applicant as will be set out below. Respondent
however persisted therewith.
[8]
It was submitted on behalf of Applicant that in volume 1 page 18 it
sets out its ownership of
the vehicles and that at page 106 of
Respondent’s answering affidavit Respondent admits the
ownership of the trucks but only
contends that it is not in unlawful
possession thereof. It was submitted that ownership is
therefore confirmed. It
was further submitted that the contract
had been cancelled and that Respondent elected to sue for damages.
I was referred
to the application to confirm jurisdiction wherein it
was set out that the trucks had to be attached as security for the
contractual
damages claim to be instituted by Respondent against
Applicant. It was alleged that Applicant had reneged on its
contractual
obligation, had breached the agreement and had brought to
an end the income generating capacity of Respondent and therefore a
contractual
loss to Respondent.
[9]
It was further submitted that Respondent had elected to claim damages
and not specific performance
and therefore was bound by its
election. It could therefore at this stage not demand to have
the vehicles in its possession
after it made the election to sue for
damages as appears from the application to confirm jurisdiction.
It was submitted that
in terms of the decision in Chetty v Naidoo
1974 (3) SA 13A
, the contract had been terminated and Applicant was
entitled to the return of the trucks.
[10] In
respect of the application by Respondent to strike out certain
paragraphs, namely paragraphs 2, 9, 10,
22, 24, 25, 26, 27, 29, 30,
31 and 34 of Applicant’s founding affidavit it was submitted on
behalf of Applicant that it did
not attack its ownership of the said
trucks and that even if those paragraphs were struck out it would not
take the matter any
further. It was also submitted that the
further affidavits which Respondent wished to file will not take the
matter any further
and they were not relevant and of no assistance.
It was submitted that even if the “Plascon Evans Rule”
had to
be applied it does not take the matter any further as
Applicant remains the owner of the said trucks.
[11] It
was submitted on behalf of Respondent that various portions of the
affidavit had to be struck out as it
was hearsay. It was
submitted that Respondent’s version had to stand. It was
admitted that Applicant cancelled
the agreement but that Respondent
was entitled to hold the trucks in terms of the agreement. It
was submitted that it has
not made an election but it was only
contemplating to summons. It was submitted that the version of
Applicant was hearsay.
I was referred to the affidavits of the
drivers who stated that they had to face disciplinary hearings after
they had left the
vehicles at Respondent’s premises. It
was submitted that the contractual terms were not in dispute, that
the agreement
was at page 28 of the papers and that there was indeed
a contractual relationship in terms of which Respondent was entitled
to
hold the vehicles until September 2024. It was further
submitted that as the matter was to be taken further that the
attachment
still stands. The further affidavits should be
allowed to ensure that all the facts are placed before Court.
[12] It
is common cause that indeed an agreement was entered into between
Applicant and Respondent for the transportation
of various goods.
The agreement was signed on 25 September 2023. It states on the
front page that it is a 12 months
contract. Respondent further
relies on a letter at page 151 of the papers where it sets out the
names of 38 drivers and 38
trucks signed by the operations manager
and director of Applicant setting out that the trucks loaded under
Motech Logistics RSA,
which is Respondent will be under their
responsibility and supervision during transportation.
[13]
Applicant stopped transporting goods for Respondent during January
2024. It is common cause that the
contract has been cancelled.
According to Respondent it was due to the breach thereof by Applicant
and that it wants to sue
it for damages. The attachment of the
trucks has been set aside on reconsideration and no summons has as
yet been issued.
It is apparent from the application to attach
the trucks that Respondent elected to sue for damages and not for
specific performance.
[14] As
submitted by Mr Broster, even if the paragraphs which Respondent
wishes to have struck out are struck
out the fact remains that there
is enough in the affidavit setting out ownership of the trucks which
is conceded by Respondent.
The further affidavits will also not
take the matter any further as they set out why the vehicles were
left there and under what
conditions. This does not entitle
Respondent to hold the said trucks. The matter is therefore
considered on the basis
that the paragraphs in the founding affidavit
as set out in paragraph 10 above are struck out and leave is granted
to Respondent
to file the further affidavits.
[15] It
is not disputed that the vehicles belong to Applicant and are being
held by Respondent. They have
however now been moved for
storage by the Sheriff. I have perused the agreement between
the parties and can find no clause
that Respondent is to be in
control of the trucks. The contact is for the provision of
transport services and how billing
and payment is to be done.
The contract has been cancelled, the attachment of the trucks set
aside on reconsideration and
leave to appeal against that judgment
refused. There is nothing in the papers or any supplementing
affidavit that any further steps
in this regard have been taken.
There is thus no right for Respondent to retain the vehicles.
[16]
Respondent having made its election to sue for damages and not
specific performance, can therefore not rely on
the terms of the
agreement to refuse to return the vehicles to Applicant. See
Bekazaku Properties (Pty) Ltd v Pam Golding
Properties
1996 (2) SA
537
(CPD) at 549 E. Applicant is accordingly entitled to the
said vehicles and an order is therefore necessary for the said
vehicles
to be returned to Applicant from the Sheriff.
[17]
Although Respondent succeeded on the striking out application and the
filing of further affidavits which
were not opposed Applicant was
successful at the end and costs should follow this result.
The following order is
therefore made:
1.
The application by Respondent to strike out
certain paragraphs of the founding affidavit is granted.
2.
The application by Respondent to file
further affidavits is granted.
3.
The Sheriff of the High Court, Camperdown
is instructed to immediately release the trucks and trailers listed
below to Applicant:
HORSE REG.
HORSE VIN/CHASSIS
NO.
TRAILER REG.
TRAILER VIN/CHASSIS
NO.
1
A[...]
L[...]
A[...]
L[...]
2
A[...]
L[...]
A[...]
L[...]
3
A[...]
L[...]
A[...]
L[...]
4
A[...]
L[...]
A[...]
L[...]
5
A[...]
L[...]
A[...]
L[...]
6
A[...]
L[...]
A[...]
L[...]
7
A[...]
L[...]
A[...]
L[...]
8
A[...]
L[...]
A[...]
L[...]
4.
Respondent is to pay the costs of the
application on an attorney and client scale.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
6
JUNE 2024
JUDGMENT
HANDED DOWN:
21
JUNE 2024
COUNSEL
FOR APPLICANT:
J
P BROSTER
Instructed
by:
Cox
Yeats
Umhlanga
Ridge
Tel:
031 5368500
Email:
Jrodd@coxyeats.co.za
c/o
Stowell and Co.
Pietermaritzburg
Ref:
Sarah Myhill
COUNSEL
FOR RESPONDENT:
K
P CHETTY
Instructed
by:
Ronell
Nathanael & Company
Pietermaritzburg
Ref:
RNN/769392
Tel:
033 342 3297
Email:
ronell@nathanaellaw.co.za
admin@nathanaellaw.co.za