Nkwane Khauki Projects JV v Member of the Executive Council, Department: Human Settlements, Public Safety & Liason, North Provincial Government and Others (M256/15) [2015] ZANWHC 46 (29 July 2015)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASE NO: M256/15

In the matter between:

NKWANE KHAUKI PROJECTS JV APPLICANT

And

THE MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT: HUMAN SETTLEMENTS, PUBLIC

SAFETY & LIAISON, NORTH WEST PROVINCIAL

GOVERNMENT

1ST RESPONDENT

THE HEAD OF THE DEPARTMENT:HUMAN

SETTLEMENT, PUBLIC SAFETY & LIAISON, NORTH

WEST PROVINCIAL GOVERMENT

2ND RESPONDENT

SYNCHROOM (PTY) LTD

3RD RESPONDENT

FIRST NATIONAL BANK LTD

4TH RESPONDENT

JUDGMENT

Landman J

[1] This is an application for an interim interdict which is sought on an urgent basis. The applicant is Nkwane Khauki Projects JV. The first, second and third respondents are The Members of the Executive Council, of the Department of Human settlement, Public Safety & Liaison, North West Provincial Government (first respondent), The Head of the Department of Human Settlements, Public Safety & Liaison, North West Provincial Government ( second respondent) and Synchrocom (Pty) Ltd (third respondent). Only the third respondent opposes the application.

[2] The applicant and the third respondent entered into a sub-contract in respect of work to be done for the Department of Human Settlements of the North West Provincial Government. This contract was subsequently amended.

[3] The applicant submitted the following four invoices to the third respondent:

Invoice FA 14(1) date 8 May 2015 for R 25 554.76

Invoice FA 14(2) dated 13 June 2015 for R 63 000.00

Invoice FA 14(3) dated23 June 2015 for R 87 750.00

Invoice FA 14(4) dated 30 June 2015 for R 344 216.25

[4] The applicant avers that the third respondent paid the first invoice but has not paid the remaining three invoices that it says are due and payable save for an amount of R160 634.25 which the third respondent paid on 11 July 2015.

[5] The applicant seeks an anti-dissipation interdict on the grounds that the third respondent has not paid what is due, because it has repudiated the sub-contract by providing work to another contractor and because it believes that it will be using the payments made by the Department otherwise than to pay the applicant. It therefore seeks to freeze the third respondent’s bank account.

[6] The general rule is that articulated by EM Grosskopf JA in Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 at p 372 H-I where he says:

“… [T]here would not normally be any justification to compel a respondent to regulate his bona fide expenditure so as to retain funds in his patrimony for the payment of claims (particularly disputed ones) against him. I am not, of course, at the moment dealing with special situations which might arise, for instance, by contract or under the law of insolvency.”

[7] In Mcitiki and Another v Maweai 1913 CPD 684 at p 687 Hopley J stated the effect of earlier cases relationg to anti dissipation interdicts to be the following:

"... (T)hey all proceed upon the wish of the Court that the plaintiff should not have an injustice done to him by reason of leaving his debtor possessed of funds sufficient to satisfy the claim, when circumstances show that such debtor is wasting or getting rid of such funds to defeat his creditors, or is likely to do so."

EM Grosskopf JA in Knox v D’Arcy Ltd and Others vs Jameson and Others [1996] ZASCA 58; 1996 (4) SA 348 at p 372 F-I elaborated on an element of this kind of interdict saying:

”The question which arises from this approach is whether an applicant need show a particular state of mind on the part of the respondent, i e, that he is getting rid of the funds, or is likely to do so, with the intention of defeating the claims of creditors. Having regard to the purpose of this type of interdict the answer must be, I consider, yes, except possibly in exceptional cases. As I have said, the effect of the interdict is to prevent the respondent from freely dealing with his own property to which the applicant lays no claim. Justice may require this restriction in cases where the respondent is shown to be acting mala fide with the intent of preventing execution in respect of the applicant's claim.”

[8] In my view the prima facie right of the applicant is founded in the right to claim the alleged debt coupled with a prima facie right to have the respondent’s funds to be frozen. Both rights may be open to some doubt but not serious doubt. Coupled to this is the requirement that the applicant must have a reasonable apprehension of harm.

[9] A reasonable apprehension of harm may require that the applicant show that the third respondent is in default of payment although perhaps not in every case. Although the applicant alleges that the third respondent is in default that is not the case. The parties agreed that invoices would be due five days after submission and then payable at the end of the following month. Invoice FA1 was paid timeously. Invoice FA 14(2) is payable, as the third respondent alleges, on 31 July 2015 but it was paid on 11 July 2015. Invoice FA 14(3) is payable on 31 July 2015. Invoice FA 14(4) is not payable until 31 August although the third respondent has undertaken in the papers to pay it earlier. The pattern of payment does not reflect an intention to default. In fact it shows the third respondent paying in advance of the date fixed for payment. Moreover the third respondent has in its email demonstrated that when it undertakes to make a payment it keeps its word.

[10] The alleged repudiation is open to serious doubt. The applicant alleges that it has a contract for 400 units; 169 units for Mogogelo and 231 units for the Maubane/Greenside. The respondent agrees with the last figure but says the Mogogelo units were replaced by the Maunbane /Greenside Units. This accords with the applicant allegations in paragraph 15 of its founding affidavit. Even if the third respondent repudiated the contract there is nothing to show that it does not intend paying the two invoices which forms the basis for the application.

[11] The balance of convenience favours the third respondent. The applicant’s remedy is to simply wait for the date of payment to arrive.

[12] Mr Masilo, who appeared on behalf of the third respondent, submitted that if I dismissed the application, the applicant should be ordered to pay the costs on a punitive scale. This is an application that should not have been brought on the papers as they stand. The third respondent has been unnecessarily put to the expense of opposing this application on an urgent basis.

Order

[13] In the premises the application is dismissed with costs on an attorney and client scale.

A A Landman

Judge of the High Court

Appearances

Date of Hearing:

28 July 2015

Date of judgment:

29 July 2015

For the Applicant:

Adv U Lottering instructed by Gura Tlaletsi INC

For the Third Respondent: Adv Masilo instructed by Motshabi & Modiboa Attorneys