Imperial Group (Proprietary) Limited t/a Imperial Logistics v Dlamini and Others in Re: Dlamini v Mphumelelo Forest Services (Proprietary) Limited (488/2005) [2006] SZIC 55 (27 April 2006);

HELD AT MBABANE CASE NO.488/2005

IN THE MATTER BETWEEN:

IMPERIAL GROUP (PROPRIETARY) LIMITED
T/A IMPERIAL LOGISTICS APPLICANT

AND

TIMOTHY DLAMINI 1^st RESPONDENT

MARTIN AKKERN.O. 2^nd RESPONDENT

MPHUMELELO FOREST SERVICES

(PROPRIETARY) LIMITED 3^rd RESPONDENT

IN RE:

TIMOTHY DLAMINI APPLICANT

AND

MPHUMELELO FOREST SERVICES

(PROPRIETARY) LIMITED RESPONDENT

CORAM:

NKOSINATHINKONYANE : ACTING JUDGE

DAN MANGO : MEMBER

GILBERT NDZINISA : MEMBER

FOR APPLICANT

ADV. M. VAN DER WALT INSTRUCTED BY

(CURRIE & SIBANDZE ATTORNEYS)

FOR 1^st and 2^nd RESPONDENTS

SABELA DLAMINI (MAGAGULA&HLOPHE

ATTORNEYS)

FOR 3^rd RESPONDENT: NO APPEARANCE

JUDGEMENT 27/04/06

The applicant brought an urgent application before this court on the 2 March 2006 for an order in the following terms:

"1) 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.

2) That the Applicant's non-compliance with the Rules relating to the above-said forms and service be condoned.

3) 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.

3.1. 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.

3.2. That the First and Second Respondents be interdicted from proceeding with the sale in execution scheduled for the 3^rd March 2006.

3.3. That the attachments by the Second Respondent of the four vehicles referred to in the attached affidavit be set aside.

3.4. That the First and Second Respondents be directed to return the said vehicles to the Applicant forthwith.

4. That the orders in paragraphs 3, 3.1, and 3.2 operate with immediate interim effect pending the finalisation of this matter.

5. 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).

6. Such further and / or alternative relief as this above Honourable Court may deem fit."

A notice to oppose was filed by the 1^st and 2^nd Respondents. An answering affidavit was also filed accordingly. The Applicant thereafter filed its replying affidavit.

The 1^st and 2^nd Respondents raised points in limine relating 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 limine.

The application was finally argued on the merits on the 20^th April 2006. Both legal representatives filed well prepared heads of argument which were very helpful to the court.

The brief history of this matter is as follows; the 1^st Respondent obtained an order against the 3^rd Respondent. The 3^rd Respondent was unable to pay the judgement debt and it became necessary that the movable goods of the 3^rd Respondent be attached and sold in order to make good the judgement debt. The 2^nd 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 3^rd 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.

The 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.

On behalf of the 1^st and 2^nd Respondents it was argued that the contract was defective as the 1^st Respondent did not sign the annexures thereto. It was further argued that the transfer of the properties belonging to the 3^rd Respondent was unlawful as it was done without a resolution of the shareholders.

Interestingly, the agreement is entitled "Rescue Agreement". The parties are the Applicant; MRB Ondememings (Eindoms) Beperk; the 3^rd 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".

In terms of the contract the 3^rd Respondent was indebted to ISF and MRB and was unable to service the loan. The 3^rd Respondent therefore had to transfer its assets to the Applicant in full and final settlement of the loan. The shares of the 3^rd 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.

The 1^st 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 1^st 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". The 1^st 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 subscriptor is clearly applicable in this case.

The court will also dismiss the 1^st Respondent's argument that the transfer of the assets was contrary to the law relating to the transfer of a company assets. The 1^st 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 were violated.

The agreement was worded in clear and unambiguous language. The 1^st Respondent 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.

The 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:

"To 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 ".

It 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 1^st Respondent was all along aware of the relationship between the Applicant and the 3^rd 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.

The court having carefully considered the evidence placed before it will make an order that the application should succeed with costs.

The court will accordingly make the following order:

1. The rule nisi is hereby confirmed;

2. The 1^st Respondent is to pay the costs on the ordinary scale and such costs to include the costs of Counsel.

The members are in agreement.

NKOSINATHI NKONYANE ACTING

JUDGE—INDUSTRIAL COURT