---

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 THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – PORT ELIZABETH)               

                 CASE NO.: 2197/2013

In the matter between:

PRIMO PLANT HIRE CC                                                                                            Applicant

And

BUYAKITHI GENERAL TRADING CC                                                          First Respondent

NEDBANK LIMITED SOUTH AFRICA                                                     Second Respondent

JUDGMENT

BESHE, J:

[1] Applicant seeks an interdict preventing the first respondent from dealing with funds standing to its credit with the second respondent, pending the determination of an action which applicant has instituted against the first respondent. In other words, applicant seeks the confirmation of the rule nisi that was issued on the 2 August 2013 in this regard.

[2] The applicant is Primo Plant Hire CC, a Close Corporation, duly registered in accordance with the Close Corporation Act of the Republic of South Africa, with its principal place of business at 3 Kendle Street, Neave Township, Port Elizabeth.

The first respondent is Buyakithi General Trading CC, a Close Corporation (Reg 2006/096567/23), duly registered in accordance with the Close Corporation Act of the Republic of South Africa, with its registered offices at Stand 881, Kamaqhekeza Trust, 1130 and its principal place of business at 30 Broadway Road, Johannesburg.

The second respondent is Nedbank Ltd South Africa (Arcadia Branch, Pretoria), a public company, registered in terms of the Banks Act, 94 of 1990, Nedbank Plaza, Beatrix Street, Arcadia, Pretoria.

[3] The order that was issued on the 2 August 2013 provides as follows:

“IT IS ORDERED

A Rule Nisi do hereby issue, returnable on 20^th August 2013 calling upon the First and Second Respondents to how cause, if any, why the following Order should not be made final:

1        1.1 the First Respondent is hereby interdicted, pending the outcome of the action to be instituted against it by the Applicant within 30 days, from directly or indirectly in any way with any monies held or standing to the credit of the First Respondent’s bank accounts in the Second Respondent, to a maximum sum of R1 705 000.00 ;

1.2  that the Second Respondent be ordered to place in a suspense account, any funds held by it to the credit of the First Respondent, up to an amount of R1 705 000.00, save that the Second Respondent shall not be prohibited from :

1.2.1        exercising any right of set off which it may have in respect of loan facilities made available to the First Respondent prior to service ;

1.2.2        making payment in respect of any Bills of Exchange accepted prior to service or notice of this Order ;

1.2.3        making payment in terms of any letters of credit or other bankers documentary credits, credit card payments or cheques guaranteed by the Second Respondent.

2        The relief set forth in paragraph 2 (sic) shall operate as an interim Order, pending the return date.

3        The costs of this Application be costs in the cause in respect of the proceedings to be instituted against the First Respondent ;

4        The First and/or Second Respondent, and any Third Party affected by this Order, may apply on 24 hours written notice to the court and to the Applicant to discharge or vary the Order, or to seek further directions hereunder.”

[4] Following the filing by the first respondent of an answering affidavit, wherein an amount of R805 000.00 was tendered by it as the full and final payment to the applicant, applicant sought an amendment of the rule nisi that was issued on the 2 August 2013. This rule was returnable on the 20 August 2013. On the return date the matter was postponed to the 5 September 20132 with the rule extended to that date. In addition, second respondent was ordered to pay to applicant’s attorneys trust account, the sum of R805 000.00 from the suspense account referred to in paragraph 1.2 of the order that was issued on the 2 August 2013. Paragraph 3 of the order reads as follows:

“3. The interim order granted by the above Honourable Court on the 2^nd of August 2013 remains operative pending the determination of the matter on the return date, save that the amount of R1,705,000.00 is reduced to R900,000.00.”

[5] It is common cause that Transnet required 670 dolosse to be removed from a site that is under its control at the Coega Port in June 2013. It is common cause also that the contract to carry out the work was awarded to the first respondent. The tender that Transnet awarded to first respondent was for R1 858 111.00. The dolosse were to be removed as a matter of urgency. Common cause also is the fact that first respondent outsourced work relating to the tender to the applicant.

[6] According to the applicant, the agreement between applicant and first respondent was that the latter would cede its right in terms of the agreement to enable Transnet to make payment to the applicant directly. The entire contract price in the sum of R1 858 111.00 was to be paid to the applicant. Of that amount first respondent would receive R58 111.00. See paragraph 6.12 of founding affidavit deposed to by Mathys Peter Johannes Bekker (Bekker). It however turned out that in terms of the Transnet procurement process, effect could not be given to the agreement entered into between applicant and first respondent. Payment could only be made to first respondent who was awarded the tender by Transnet. Applicant alleges that he spoke to the member of first respondent Oupa Dirk Ntuli (Ntuli) and they were in agreement that as soon as payment was received by first respondent from Transnet, the sum of R1,8m would be paid to the applicant.

[7] It is common cause that after the work was carried out, Transnet paid the money into first respondent’s account. (The total amount payable in terms of the tender that was awarded to first respondent). Payment was made into first respondent’s account with second respondent. First respondent made payments of R45 000.00 and R50 000.00 into applicant’s account.

[8] It is contended on behalf of the applicant that first respondent is a company with no assets or any trade record. There is an apprehension that first respondent will dissipate funds and leave applicant with a claim that is nugatory. As would appear from what first respondent alleges, there is a dispute as to how much is due to first respondent and how much is due to applicant.

[9] According to the sole member of first respondent, Ntuli, the fee to be charged by applicant was neither discussed nor agreed, due to the haste with which the agreement was entered into with applicant. After the work was carried out he received an invoice for R1 800 000.00 from applicant in respect of the work the latter had done. According to Ntuli the amount charged by applicant was excessive. He met with Bekker in Gautent where negotiations regarding the amount due to the applicant begun. Ntuli does not state whether an agreement was reached between him and Bekker as to how much was due to the applicant. What he does state however is that an amount of R95 000.00 was paid to applicant by him in two of payments of R50 000.00 and R45 000.00 respectively. At paragraphs 21 and 22 of the answering affidavit, Ntuli states:

“21. I asked furthermore for an extension of time within which to pay the monies, and a further invoice which would indicate that I paid R95 000.00. I e-mailed to Bekker a statement attached marked “E” which confirmed that I had paid R95 000 and that there was a balance of R805 000.

22. I have never denied that I would pay the balance of R805 00.00. I have never tried to evade paying this amount. I informed Bekker that I would pay on 26 August 2013 in an email attached marked “F”. This would be 30 days after invoice was rendered.”

The rule nisi in respect of which confirmation is sought was issued on the 2 August 2013. It was amended on the 20 August 2013.

[10] As I understand applicant’s case, the reason he fears that first respondent will dissipate the funds and leave him with a nugatory claim are the following:

Even though there was an agreement between them that as soon as Transnet made payment into first respondent’s account, the latter would pay into applicant’s account a sum of R1 858 111.00 and retain R58 111.00, first respondent failed to pay the said amount to the applicant.

This of course is denied by the sole member of first respondent.

After he had arranged to meet with Ntuli in Gauteng with a view to arrange with their respective bankers for the transfer of the money to take place, it was difficult to meet with Ntuli.

Ntuli denies that Bekker had made arrangements with him to meet in Pretoria. He arrived unannounced which made it difficult to meet with him.

They arranged to meet in Port Elizabeth on 29July to sort things out. But Ntuli did not show up.

He believes that first respondent does not own any assets.

[11] Applicant now seeks an order to prevent first respondent from dealing with funds standing to its credit with second respondent pending the action that has been instituted against first respondent. It is contended on behalf of the applicant that he will suffer irreparable harm or loss should a judgment in his favour (if applicant were to be successful in its claim against first respondent) is not satisfied by reason of fact that first respondent has dissipated funds standing in his account with the second respondent.

[12] Is the applicant justified in the circumstances in fearing that first respondent will dissipate the funds he was placed in possession of by Transnet? There by rendering its victory nugatory should it succeed in the claim against first respondent. Although I am not required to determine the merits of applicant’s claim against first respondent, it appears to be common cause that applicant is entitled to payment whatever the amount, from the funds deposited in first respondent’s bank account with second respondent. Does applicant have a well grounded apprehension that first respondent will dissipate the funds in question, and thereby cause him to suffer harm or loss. As far as the amount is concerned, it seems highly unlikely in my view that applicant and first respondent did not have an agreement in place concerning payment for the work that applicant was to undertake as respondent alleges. It is also not clear on what basis first respondent claims that after a payment of R95 000.00 to applicant there is a balance of R805 000.00. What is this amount based on if there was no agreement regarding what was due to applicant? It also appears that there were difficulties in arranging meetings between applicant and first respondent. Applicant alleges it was first respondent who made it difficult for them to meet, first respondent alleges he tried to get hold of Bekker who never responded to him and made it impossible to communicate with him. It is clear however that there were problems with communication between applicant and first respondent. I have briefly alluded to what happened when applicant visited Gauteng with a view to meet with first respondent.

[13] Is first respondent possessed of means to meet a judgment to pay applicant should the latter be successful in the claim against it. According to the applicant, it had to take over the contract with Transnet because first respondent did not have resources available to undertake the urgent works. According to first respondent, he was placed under pressure by officials at Transnet to outsource the work to applicant. He goes on to state that he was upfront with applicant and told Bekker that first respondent is not registered for VAT because at that stage first respondent had never made a profit that rendered it necessary to register for VAT. Ntuli also states that he has intention to grow his business which has recently started to be fruitful. First respondent insists that applicant is only entitled to a sum of R805 000.00 not R1 705 000.00.  

I am satisfied in light of the evidence in this matter that applicant does have a clear or prima facie right to payment by the first respondent even thought it might be open to some doubt, especially as regards the amount due to it.

[14] In the circumstances applicant has a well-grounded apprehension that if the amount standing in first respondent’s account were to be dissipated it would suffer loss. I am satisfied that the applicant has made out a case for the relief that it seeks.

[15] Accordingly the order issued on the 2 August 2013 and amended on the 20 August 2013 is hereby confirmed and it is ordered that:

1. The first respondent is hereby interdicted from directly or indirectly dealing in any way with the monies held or standing to the credit of first respondent’s bank accounts in the second respondent, to a maximum of R1 705 000.00, pending the outcome of the action that has been instituted by the applicant against first respondent under case no. 2323/13.

2. The second respondent is ordered to place in a suspense account funds held by it to the credit of first respondent up to an amount of R1 705 000.00.

3. The second respondent is ordered to pay to the applicant’s attorneys’ trust account, Nedbank, Port Elizabeth Branch, Account Number [……], Branch Code […..], the sum of R805 000.00 from the suspense account opened by the second respondent in accordance with the provisions of paragraph 2 above.

4. Costs of this application to be costs in the cause in respect of the proceedings that have been instituted against first respondent.                 

_______________

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant               :           ADV: P E Jooste

Instructed By                     :           FRIEDMAN SCHECKTER

                                                            75 Second Avenue

                                                            Newton Park

                                                            Port Elizabeth

                                                            Tel.: 041 – 395 8412

                                                            Ref.: Mr Friedman/ps/G05061

                                                                              

For the Respondent          :           ADV: L Pillay

Instructed By                     :           WAYNE MAC GEAR ANEESAH CAMPBELL

                                                            Suite 9, Adderley Arcade

                                                            697 Govan Mbeki Avenue

                                                            Port Elizabeth

                                                            Tel.: 041 – 487 2689 / 086 536 8003

                                                            Ref.: CSM/CIV/W. Mac Gear/Buy

 

Date Heard                              :           5 September 2013

Date Reserved                         :           5 September 2013

Date Delivered                         :          10 June 2014  

---