AT MBABANE CASE
THE MATTER BETWEEN:
GROUP (PROPRIETARY) LIMITED
T/A IMPERIAL LOGISTICS APPLICANT
NKOSINATHINKONYANE : ACTING
MANGO : MEMBER
NDZINISA : MEMBER
M. VAN DER WALT INSTRUCTED
& SIBANDZE ATTORNEYS)
RESPONDENT: NO APPEARANCE
applicant brought an urgent application before this court on the 2
March 2006 for an order in the following terms:
That the usual forms and service relating to the institution of
proceedings be dispensed with and that this matter be heard as a
matter of urgency.
That the Applicant's non-compliance with the Rules relating to the
above-said forms and service be condoned.
That a rule nisi be issued with immediate and interim effect calling
upon the Respondents to show cause on a date to be appointed by the
above Honourable Court, why an order in the following terms should
not be made final.
That the First and Second Respondent be interdicted and restrained
from proceeding with execution of the writ of execution under the
above case number insofar as same relates to the four vehicles
mentioned in the affidavit, and that such execution be stayed.
That the First and Second Respondents be interdicted from proceeding
with the sale in execution scheduled for the 3rd
That the attachments by the Second Respondent of the four vehicles
referred to in the attached affidavit be set aside.
That the First and Second Respondents be directed to return the said
vehicles to the Applicant forthwith.
That the orders in paragraphs 3, 3.1, and 3.2 operate with immediate
interim effect pending the finalisation of this matter.
Costs on the scale as between attorney and own client against the
First Respondent only, to include the costs of Counsel as certified
in terms of High Court Rule 68(2).
Such further and / or alternative relief as this above Honourable
Court may deem fit."
notice to oppose was filed by the 1st
Respondents. An answering affidavit was also filed accordingly. The
Applicant thereafter filed its replying affidavit.
Respondents raised points in
to urgency and the prima facie right of the Applicant to be heard.
The court made a ruling in which it dismissed the points in
application was finally argued on the merits on the 20th
April 2006. Both legal representatives filed well prepared heads of
argument which were very helpful to the court.
brief history of this matter is as follows; the 1st
Respondent obtained an order against the 3rd
Respondent. The 3rd
Respondent was unable to pay the judgement debt and it became
necessary that the movable goods of the 3rd
be attached and sold in order to make good the judgement debt. The
Respondent then went to the premises of Chrisilda's Transport (PTY)
LTD where it attached three trucks which he said was informed
belonged to the 3rd
Respondent. The Applicant on learning about these developments
launched this urgent application to stop the sale of the trucks
because it claimed that they belonged to it by virtue of an
agreement which was annexed to its application.
Applicant's case therefore is based on the interpretation of the
contract. The parties agreed that the interpretation of the contract
is a matter of law and that this court therefore had jurisdiction to
entertain the application.
behalf of the 1st
Respondents it was argued that the contract was defective as the 1st
Respondent did not sign the annexures thereto. It was further argued
that the transfer of the properties belonging to the 3rd
was unlawful as it was done without a resolution of the
the agreement is entitled "Rescue Agreement". The parties
are the Applicant; MRB Ondememings (Eindoms) Beperk; the 3rd
Respondent; Mpumelelo Motor Transport (Proprietary) Limited and
Chrisildas Transport (Proprietary) Limited. Clause 2.7 states that
"the ISF/MRB LOAN means the amount owing by MFS to ISF and MRB
together, as detailed in Annexure 1 hereto". Clause 2.8 states
that "the MFS FIXED ASSETS means all the fixed assets of MFS as
detailed in Annexure 2 hereto".
terms of the contract the 3rd
Respondent was indebted to ISF and MRB and was unable to service the
loan. The 3rd
Respondent therefore had to transfer its assets to the Applicant in
full and final settlement of the loan. The shares of the 3rd
Respondent were transferred to Chrisildas and Mpumelelo Motor
Transport (MMT). The agreement also provided that the law applicable
shall be the law of the Republic of South Africa.
Respondent had no problems about the contract which he signed by
appending his initials. He only challenged the authenticity of
Annexure 2 as he did not sign it. The 1st
Respondent's contention will be dismissed by the court as clause 2.8
of the contract clearly provided that " the MFS fixed assets
means all the fixed assets of MFS as detailed in Annexure 2 hereto".
Respondent is therefore estopped from now denying the existence and
/ the contents of Annexure 2 as he signed the page referring to that
Annexure. The principle of caveat
clearly applicable in this case.
court will also dismiss the 1st
Respondent's argument that the transfer of the assets was contrary
to the law relating to the transfer of a company assets. The 1st
Respondent simply lost sight of the provision in the agreement that
stated that the law applicable to the agreement shall be the law of
the Republic of South Africa and not the law of this country. It was
not argued that the company laws of the Republic of South Africa
agreement was worded in clear and unambiguous language. The 1st
was involved in its execution. His contention that he may have not
appreciated its full import because he is man of little
sophistication, and that most of the issues flew way above his head,
clearly cannot be accepted by the court.
other ground on which the Applicant relied upon to have the sale set
aside was that the attachment was defective. 'From the return of
service it is apparent that the judgement debt was demanded from the
Operations Manager of Chrisilda's Transport, one Sikelela Vilakati.
Chrisilda's Transport was not a party to the proceedings.The Deputy
Sheriff himself admitted that he made mistakes. In his supplementary
affidavit, he stated in paragraph 10 that:
the extent that the aforesaid return of service, notice of
attachment and inventory do not strictly comply with the Rules of
this Honourable Court, I beg indulgence that it be condoned as there
is no prejudice suffered by any of the parties involved herein ".
is clear to the court from the contents of the rescue agreement that
the Applicant became the owner of the assets or vehicles in question
by virtue of the rescue agreement. The 1st
Respondent was all along aware of the relationship between the
Applicant and the 3rd
Respondent. It was clear to the court that he had no genuine defence
to the Applicant's application. For this reason he will have to bear
the costs of the application.
court having carefully considered the evidence placed before it will
make an order that the application should succeed with costs.
court will accordingly make the following order:
rule nisi is hereby confirmed;
Respondent is to pay the costs on the ordinary scale and such costs
to include the costs of Counsel.
members are in agreement.