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[2011] ZAWCHC 201
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Gillespie and Others v Dominic Gomes Attorneys and Others (5507/2011) [2011] ZAWCHC 201 (26 April 2011)
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE
NUMBER
:
5507/2011
DATE: 26 APRIL 2011
In
the matter between:
BERNARD
GILLESPIE
1st Applicant
CHRIS
PIGGOTT
2nd Applicant
SONJA
TAYLOR
3rd Applicant
and
DOMINIC
GOMES ATTORNEYS
1st Respondent
HENQUE
3485 CC t/a CAPITAL COMMERCIAL
PROPERTIES
2nd Respondent
ZENOS
INVESTMENTS CC
3rd
Respondent
JUDGMENT
CLEAVER.
J
:
This is an application for a temporary
interdict, which has its genesis in a dispute between four estate
agents, namely the three
applicants and the second respondent, as to
their entitlement to commission resulting from the sale of a property
owned by the
third respondent.
In terms of the deed of sale in
question, the seller, the third respondent, is liable for commission
in the sum of R800 000,00,
which will be payable on transfer of the
property into the name of the purchaser. The applicants contend that
they are entitled
to 53% of the commission resulting from the sale.
The relief initially sought by the applicants was an order directing
the first
respondent, a firm of attorneys, which will be attending to
the registration of the transfer of the property, to retain the total
amount of agent's commission resulting from the sale in an interest
bearing account, pending an action to be instituted by the
applicants
against the second respondent.
In its answering affidavit, the second
respondent pointed out that the seller of the property had not been
cited. This resulted
in the applicants applying to join the seller
and I, this morning, granted the application to join the seller as
the third respondent.
The applicants have now also applied to amend
their notice of motion, so as to include the following alternative
prayer, namely
the third respondent is directed to retain 53% of the
agent's commission in an interest bearing account, pending the
outcome of
an action to be instituted by the applicants against the
second respondent. That application was also granted by me.
I
am satisfied that on the papers before me, the applicants have made
out a prima facie case against the second respondent, that
they
agreed to share the commission payable to the second respondent by
the seller, on the basis set out in the papers. However,
the issue is
whether that agreement is sufficient to entitle them to the order
directing the third respondent to retain funds pending
the outcome of
their dispute with the second respondent. The applicants have no
claim against the third respondent, yet the effect
of the alternative
order, which is now being sought, is against him. There is no
difference insofar as the effect of the order
is concerned from the
order initially sought against the first respondent, for the first
respondent was acting as an agent for
the third respondent.
Counsel for the applicants submitted
that the application was not for an order which is sometimes referred
to as a Mareva injunction
or an anti-dissipation order. In my view
the application is for such an order. The applicants ask for an order
that the third respondent
be prevented from dealing with or disposing
of assets to which they cannot lay claim. That is precisely the
situation which arises
when an anti-dissipation order is sought. I
refer in this regard to the judgment in
Investec Employee Benefits
v Electrical Industry KwaZulu Natal Pension Fund & Others
reported in SA 2010 (1) 446 (W). and in particular to paragraph 116,
which reads as follows
"The
law in this regard is as set out in Knox D'Arcy Ltd and Others V
Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) ([1996]
3 All SA 669)
It was
trenchantly summarised as follows in Carmel Trading Co Ltd v
Commissioner, South African Revenue Services, and Others
2008 (2) SA
433
(SCA) ([2008
2 All SA 125)
in para 3 as follows:
'Such an order, which interdicts a
respondent from disposing of or dissipating assets, is granted in
respect of a respondent's property
to which the applicant can lay no
special claim. To obtain the order, the applicant has to satisfy the
court that the respondent
is wasting or secreting assets with the
intention of defeating the claims of creditors.'*
It is clear from the papers that the
applicants have not, and did not seek to make out a case that the
second respondent was wasting
or secreting assets with a view to
defeating the claims of the applicants. All that the applicants
allege is that the second respondent
has been very secretive about
the transaction and:
"On
the other hand a reasonable apprehension of irreparable harm exists
if the order is not granted, in that the applicants
and I are not
aware how the second respondent will utilise the commission if paid
out to him."
I
do not agree with the applicants' counsel that the third respondent
is in the position of a stakeholder. He is not holding funds
to which
two competing creditors are laying claim. The funds which will accrue
to him when he receives payment of the purchase
consideration, will
be his funds. He has nothing to do with the applicants and his
obligations in respect of commission are to
the second respondent
only. The judgment cited in support of the applicants' case, namely
Candid Electrics (Ptv) Limited v
Merchandise Buying Syndicate (Ptv) Limited
1992 (2) SA 459
(C) concerned the disposal of goods which had been
pledged in securitatem debiti. a far cry from the situation before
me.
There has been no suggestion that the
second respondent will not be able to meet a successful claim against
it by the applicants.
They are in no different a position from any
other litigants seeking to enforce a monetary claim and are not
entitled to the extraordinary
relief which they seek.
The application is dismissed with
costs.
CLEAVER, J