Balise Printing and Publishing (Pty) Ltd t/a Minuteman Press v Small Enterprise Finance Agency Society Limited and Others (56444/2020) [2020] ZAGPPHC 721 (4 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

DATE: 4 December 2020

Case Number: 56444/2020

BALISE PRINTING AND PUBLISHING (PTY) LTD t/a MINUTEMAN PRESS Applicant And SMALL ENTERPRISE FINANCE AGENCY SOCIETY LIMITED First Respondent THE SHERIFF OF THE HIGH COURT OF SOUTH AFRICA Second Respondent KML BRANDING (PTY) LTD Third Respondent MAGDELINE MOKGATLA BUTHELEZI Fourth Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1] This application was brought to release certain goods attached by the second respondent (“the Sheriff”) at the premises

of the applicant. It is common cause that the judgment on the strength of which the warrant to remove and the warrant to attach was issued, was obtained by the first respondent against the third and fourth respondents.

[2] Only the first respondent opposes the relief claimed by the applicant.

Background

[3] The third defendant, KML Branding (Pty) Ltd (“KML”) held a franchisee licence to trade as Minuteman Press. The fourth

respondent, Magdeline Mokgatla Buthelezi (“Buthelezi”) is the sole director of KML.

[4] During the course of its operations, KML entered into an instalment sale agreement with the first respondent, Small Enterprise Finance Agency SOC Ltd (“SEFA”). The instalment sale agreement pertained to the goods that were attached by the Sheriff at the premises of the applicant.

[5] On 22 August 2018 KML sold the franchise to Lucky Madikiza (“Madikiza) and Nkhopotseng Cecilia Hlase (“Hlase”).

[6] In the written sale agreement the parties agreed that Madikiza and Hlase will:

“take over the remaining payments on the leases for the equipment, as well as those on the copier, which payments will be current. All leases are paid up to the end of August 2018.”

[7] The clause clearly refers to the equipment purchased by KML in terms of the instalment sale agreement with SEFA.

[8] SEFA was not informed of the sale agreement between KML, Madikiza and Hlase.

[9] Madikiza and Hlase did not honour their obligations towards SEFA, which prompted SEFA to issue summons against KML and Buthelezi.

[10] KML and Buthelezi did not defend the action and on 28 February 2019 SEFA (as plaintiff) obtained default judgment against KML (first

defendant) and Buthelezi (second defendant) in the following terms:

“DEFAULT JUDGMENT is hereby granted in favour of the PLAINTIFF against the First and Second Defendants, jointly and severally one paying the other to be absolved, for:

CLAIM 1

1. Payment of R 630 825.60;

2. Interest on the aforesaid amount at the rate of 13.30% per annum calculated from 30 April 2018 to date of final payment, both dates inclusive;

3. Costs of suit in the amount of R 650 to be taxed as between Attorney and Client;

CLAIM 2

1. Confirmation of the cancellation of the instalment sale agreement;

2. The return of goods: production equipment package comprising, AB Dick 9982 Colour Offset Press (refurbished, Power Spray Attachment, Plate Punch, HP Laser 5100TN, Light Table, Metal Platemaker Exposure Frame, Precision Paper Cutter, Paper Drill, Electric Saddle Stapler, Padder, Focus Software Licence, Front Lobby Service Counter, Custom Work Counter (2), 3 Draw File Cabinets, Custom Computer Graphis Desk / (2) 2 Drawer File Cabinets and two (2) Steel Work Tables;

3. That judgment for the amount Plaintiff may be entitled to together with interest thereon, be postponed sine die, pending the return of the goods stated in prayer 1; its subsequent disposal and calculation of the amount to which the Plaintiff is entitled;

4. Costs of suit in the amount of R 650.00 to be taxed as between Attorney and Client.”

[11] In the meantime Buthelezi and Hlase “transferred" the franchise to the Applicant.

[12] In terms of the “transfer” the equipment that is the subject matter of the default judgment came into the possession of the applicant.

[13] On 14 October 2020 SEFA obtained two warrants in respect of the judgment, namely a warrant of execution in respect of claim 1 and

a warrant of delivery in respect of the equipment in claim 2.

[14] The warrant of delivery authorised and required the Sheriff to “attach and remove the following goods from the Defendants, found at MINUTEMAN PRESS, PRETORIA CBD, SHOP NO. 3, MOMENTUM BUILDING, 329 PRETORIUS STREET, PRETORIA or at any other place where they may be found, and sell by way of public auction and return to this court what you have done by virtue hereof and for so doing this shall be your warrant”.

[15] The goods mentioned in the warrant is the equipment listed in claim 2 of the default judgment.

[16] In pursuance of the warrant and on 26 October 2020, the Sheriff attached the equipment at the applicant’s business premises situated at 405 Pretorius Street, Pretoria.

Applicant’s case

[17] The applicant submits that the warrant of delivery only authorises the Sheriff to attach and remove the goods from the possession of KML and Buthelezi. In the result, there is no authority or legal basis on which the Sheriff can attach the equipment that is

now in the applicant’s possession.

SEFA’s case

[18] SEFA maintains that it remains the owner of the goods in terms of the instalment sale agreement and that it may vindicate the equipment that is in possession of the applicant.

Discussion

[19] I initially agreed with Mr Mfazi, counsel for SEFA, that SEFA as the owner of the equipment may vindicate it from the possession of the applicant. After some debate, it become apparent, however, that Mr Shongwe, counsel for the applicant, is in law correct. The default judgment was granted against KML and Buthelezi and although SEFA remains the owner of the equipment in terms of the instalment sale agreement, the warrant only authorises the Sheriff to attach and remove the equipment from the possession of KML or Buthelezi.

[20] SEFA will need to resort to other legal remedies to vindicate the equipment that is in the possession of the applicant.

Costs

[21] Mr Shongwe submitted that costs should follow the cause, whereas Mr Mfazi maintains that each party should pay its own costs.

[22] Although I have sympathy for the predicament in which SEFA finds itself, there are no grounds to deny the applicant its costs.

ORDER

[23] In the premises, I grant the following order:

1. The first and second respondents are interdicted from executing any warrants issued on the strength of the default judgment obtained on 28 February 2019 under case number 74693/2018 against the property and assets in possession of the applicant.

2. The first respondent is ordered to pay the costs of the application.

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Electronically submitted therefore unsigned

Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 4 December 2020.

DATE HEARD PER COVID19 DIRECTIVES: 2 December 2020

(Virtual hearing.)

DATE DELIVERED PER COVID19 DIRECTIVES: 4 December 2020

APPEARANCES

Counsel for the Applicant:

Advocate Shongwe

Instructed by:

Maema Attorneys

Counsel for the First Respondent:

Advocate L. Mfazi and

Advocate P. Sogoni

Instructed by:

Z and Z Ngogodo Inc.