E H Hassim Hardware (Pty) Ltd t/a E H Hassim v Thembaf Construction CC and Another (3108/09) [2009] ZAGPPHC 18 (3 April 2009)

E H Hassim Hardware (Pty) Ltd t/a E H Hassim v Thembaf Construction CC and Another (3108/09) [2009] ZAGPPHC 18 (3 April 2009)

The court found that the applicant had established urgency due to the first respondent's financial instability and its actions to divert VAT refunds away from the designated joint venture account, in breach of the agreements. The common cause facts confirmed the existence of the joint venture, the designated account, and the requirement that all project-related payments, including VAT refunds, be deposited into that account. The first respondent's change of banking particulars with SARS and its intention to divert funds constituted breaches of the agreements and justified interim relief. The court held that, pending the outcome of arbitration proceedings, it was necessary to restrain both...

Citation
[2009] ZAGPPHC 18
Parties
Applicant: E H Hassim Hardware (Pty) Ltd t/a E H Hassim; Respondent: Thembaf Construction CC; Respondent: South African Revenue Services
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 April 2009
Case Number
3108/09
Procedural Posture
Urgent Application / Interim Interdict Pending Arbitration
Outcome
Interim interdict granted pending arbitration; costs reserved for arbitration.
Judges
Msimeki
Legal Topics
Interim Interdict, Joint Venture Dispute, Breach of Contract, Urgent Application, Arbitration Clause
Commercial and Corporate Civil Procedure Interim Interdict Joint Venture Dispute Breach of Contract Urgent Application Arbitration Clause

Case Brief

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Parties

E H Hassim Hardware (Pty) Ltd t/a E H Hassim

Applicant

Thembaf Construction CC

Respondent

South African Revenue Services

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Arbitration

Legal Issues

  1. 1 Whether the matter is urgent and warrants deviation from normal court procedures.
  2. 2 Whether the applicant has established a clear right to the relief sought.
  3. 3 Whether the first respondent breached the joint venture and construction agreements by diverting funds.

Ratio Decidendi

The court found that the applicant had established urgency due to the first respondent's financial instability and its actions to divert VAT refunds away from the designated joint venture account, in breach of the agreements. The common cause facts confirmed the existence of the joint venture, the designated account, and the requirement that all project-related payments, including VAT refunds, be deposited into that account. The first respondent's change of banking particulars with SARS and its intention to divert funds constituted breaches of the agreements and justified interim relief. The court held that, pending the outcome of arbitration proceedings, it was necessary to restrain both...

Court Disposition

Interim interdict granted pending arbitration; costs reserved for arbitration.

Orders

  • The first respondent is restrained and interdicted from taking possession or receiving any payment due from the second respondent in respect of VAT refunds pertaining to the project, except into the designated account at Standard Bank (account number 031517668).
  • The second respondent is restrained and interdicted from making payment or handing possession of any cheque payment due to the first respondent in respect of VAT refunds for the project, except into the designated account.