Potgieter (Nee Steyn) v PE Moffat and SJ Van Der Walt (Pty) Ltd and Others (M95/2022) [2023] ZANWHC 111 (21 July 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: M95/2022

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:-

MELINDA POTGIETER (NEE STEYN) Applicant

and

PE MOFFAT AND SJ VAN DER WALT (PTY) LTD First Respondent ABSA BANK LIMITED Second Respondent DANIEL PETRUS SCHUTTE NO Third Respondent ANNARI SCHUTTE NO Fourth Respondent DANIEL PETRUS SCHUTTE Fifth Respondent ANNARI SCHUTTE Sixth Respondent

JUDGMENT

This judgment is handed down electronically and the date of circulation is deemed to be 21 July 2023 at 15h00.

REID J:

Introduction:

[1] This is an application for a final interdict in which the applicant seeks an order that the second respondent (ABSA Bank) is authorised and ordered to provide the applicant (Potgieter) with a copy of the

bank statement of the account held under number 7[...] (the overdraft facility). The applicant seeks the bank statement of the overdraft facility to determine the amount that the first respondent, PJ Moffat & SJ van der Walt (Pty) Ltd (the Company) was indebted to the Bank on the Company’s overdraft facility on 9 February 2021.

[2] In ancillary relief the applicant is praying that the costs of the application be paid by the first, third, fourth, fifth and sixth respondents jointly and severally on a scale as between attorney and client.

[3] For ease of reference, the applicant will be referred to as “Potgieter” or “applicant”, the first respondent as “the Company”, the second respondent as “the Bank”, the third and fourth respondents as “the Trust” and the fifth and sixth respondents, who are members of the Trust, as “the Schuttes”. Potgieter is represented by Adv JE Kruger and the Trust and the Schuttes are represented by Adv B Riley.

Background

[4] During the period of 9 February 2021 Potgieter was a director of the Company and had access to the information as now sought in the application. She was the owner of 51 of the 100 shares issued in the Company, while the Trust was the owner of the remaining 49 of the 100 issued shares. The applicant was the Company’s

sole director.

[5] On 7 August 2013 Potgieter signed a written suretyship in terms of which she, in her personal capacity, bound herself as surety to the Bank in favour of the Company. The suretyship was to the effect

that Potgieter, jointly and severally with the Company in favour of the Bank would pay, on demand, any amount of money that the Company owes the Bank.

[6] On 7 July 2014 a mortgage bond was registered in favour of the Bank over Potgieter’s property described as “GEDEELTE 1 VAN ERF 7[...] P[...] DORPSGEBIED, REGISTRASIE AFDELING I.Q, NOORDWES PROVINSIE” (the property).

[7] In Clause 2 of the mortgage bond Potgieter acknowledged her indebtedness to the Bank in the amount of R800,000.00 (Eight Hundred Thousand Rand) as a result of any cause whatsoever (“enige oorsaak hoegenaamd”).

[8] On 6 October 2014 a further mortgage bond was registered in favour of the Bank over the property to the amount of R400,000.00 (Four Hundred Thousand Rand). In the mortgage bond, Potgieter acknowledges

her indebtedness to the Bank in the amount of R400,000.00 (Four Hundred Thousand Rand) or as a result of any cause whatsoever (“enige oorsaak hoegenaamd”).

[9] At all relevant times the Company had an overdraft facility with the Bank under account number 7[...]. As a result of the suretyships, Potgieter was also liable to the Bank for the fulfilment of the Company’s payment obligations in terms of the overdraft facility.

[10] Potgieter and the Trust became involved in a dispute which negated any successful relationship as shareholders in the Company. The dispute included that the Trust claimed to have come to the knowledge that Potgieter’s husband was privately selling petrol and diesel to third parties.

[11] The Company claims that the trust relationship between the Company and Potgieter broke down due to the conduct of Potgieter and her husband. It is claimed by the respondents, and disputed by Potgieter, that her husband was involved in transgressions of the Value Added Tax Act 89 of 1991 (VAT Act) that was allegedly being committed. It is also claimed, and disputed, that the Company was defrauded and money and/or assets of the Company was being stolen and/or embezzled.

[12] On 11 March 2020 and through the assistance of their respective attorneys, Potgieter and the Trust reached an agreement (the Agreement) to the following effect:

12.1. That Potgieter resigns as director of the Company and the fifth respondent, Schutte, be appointed as director of the Company;

12.2. That the Trust takes over control of the day to day management and running of the Company;

12.3. That Potgieter consents to a forensic audit investigation into her and her husband’s actions in as far as it concerns the affairs of the Company;

12.4. That the Trust takes over Potgieter’s liability to the Bank and will attend to her release as surety and co-principal debtor. Until the applicant’s release as surety and co-principal debtor, the Trust and the Schuttes indemnifies the applicant against all claims, demands, liabilities, settlements, judgments, cost and expenses arising to any act or omission of the Company under the surety provided by Potgieter;

12.5. That the Trust obtains Potgieter’s 51 of 100 issued shares in the Company without having to pay compensation to Potgieter.

[13] Potgieter sold the Property and the two (2) mortgage bonds were cancelled. When Potgieter’s attorney requested cancelation figures from the Bank, to enquire whether Potgieter was released from surety as per the agreement between her and the Trust, the Bank informed them that the outstanding balance on the overdraft facility of the Company amounted to R800,000.00 which was the total amount “… together with any interest or any other bank charges which might have accrued until date of settlement.”

[14] On 7 December 2020 Potgieter’s attorneys were informed by the Bank that the Bank would require payment in an amount of R800,000.00 for the cancellation of the two mortgage agreements. Potgieter consequently paid the amount of R800,000.00 to the Bank.

[15] Potgieter also established that the overdraft facility of the Company at the Bank was exactly the same amount of R800,000.00.

[16] Potgieter states that she intends to institute action against the Company for payment of the Company’s obligations.

[17] It is common cause that Potgieter had access to the company’s internet banking profile up and until August 2021 and the Trust, on this basis, claims that Potgieter had the opportunity to obtain the required statement electronically but neglected to do so.

[18] After correspondence between the legal representatives of the parties, an impasse was reached on the question of whether Potgieter is legally entitled to have possession of the bank statement as sought. The applicant launched this application in a quest to obtain the bank statements of the Company’s overdraft facility as it was on 9 February 2021.

[19] The argument on behalf of the Trust in opposing the application is two-fold. Firstly, it is that Potgieter has no interest in the business of Company and as such she is not entitled to the bank statement. Secondly, the Trust argues that the Trust cannot be compelled to provide the bank statement under the circumstances where Potgieter’s inaction is to blame for her non possession of the bank statement.

[20] As to the extent of the relief requested, the respondents argue that Potgieter is only entitled to the amount that the overdraft facility was on 9 February 2021 and she is not entitled to the bank statement reflecting transactions for 9 February 2021.

Legal position

[21] Potgieter seeks a final interdict. The three requisites for the grant of a final interdict are as follows: (See: Hotz v University of Cape Town 2017 (2) SA 485 (SCA); Setlogelo v Setlogelo 1914 AD 221):

21.1. A clear right of the applicant to the relief claimed;

21.2. An injury actually committed or reasonably apprehended; and

21.3. The absence of any other satisfactory remedy available to the applicant.

[22] In line with Plascon-Evans Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), the applicant will be entitled to the relief sought, should the allegations made in the applicant’s affidavit which has been admitted by the respondents, justify the relief that the applicant applies for. This principle is commonly known as the “Plascon Evans Rule”.

[23] It is argued on behalf of the applicant that the respondents are opposing the application for no valid reason. The applicant argues that the respondents wilfully do not want to disclose the bank statements as it will show the respondents’ mala fides in their dealings with the applicant.

Clear right

[24] It is argued on behalf of the applicant that she has a clear right to receive the bank statements of the Trust for 9 February 2021 as she paid an amount of approximately R800,000.00 (Seven Hundred Thousand Rand) to release her from surety that she signed for the Company. The bank statements will indicate whether she de facto has been released from surety due to the amount that she paid.

[25] The respondents confirm that the amount received from the applicant released her from the surety that she signed for the Company. Aside from oral assurances, the applicant states that she has not received any confirmation from either the Trust, the Bank or other respondents, that she has subsequent to the payment been released from the suretyship.

[26] There is no definition for a clear right, and a clear right has also been described as a “definite right”. In Welkom Bottling Co (Pty) Ltd v Belfast Minieral Waters (OFS) (Pty) Ltd 1967 (3) SA 45 O at 56F Erasmus J found:

“A court must guard against the danger of blindly giving great consideration to the preservation of an applicant’s legal right and too little consideration of the negative impact the granting of the final interdict will have on the respondent’s legal right. Some meaningful balancing act is called for.”

[27] The respondents dispute that the applicant has a clear right to the relief claimed.

[28] It is argued on behalf of the respondents that, in the event that the applicant had a clear right to the statement sought, the Bank would have provided the statement to the applicant on her mere request. Since the applicant is no longer a member of the Company, so the argument goes, the applicant does not have a clear right to the statement.

[29] The respondents argue that the applicant’s reliance on the suretyship is misplaced. The respondents rely on clause 18 of the suretyship agreement which states as follows:

“As ek hierdie borgstelling vroeg wil beëindig, moet ek die bank kontak om uit te vind watter bedrae ek aan die bank skuld. Ek kan vra dat die borgstelling onmiddelik, of op ‘n toekomstige datum beëindig word. Die bank sal my dan sê wat die bedrag is wat die debiteur op die vereffeningsdatum skuld, en dit sluit die volgende in:

Die bedrag van die hoofskuld wat ek of die debiteur op die vereffeningsdatum skuld;

Rente wat ek of die debiteur op die vereffeningsdatum op die hoofskuld skuld;

Die fooie en kostes wat ek of die debiteur op die vereffeningsdatum skuld; en

Die vroeë beëindigs-koste.”

[30] Loosely translated, the afore quoted Afrikaans clause can be translated to English as follows:

“If I want to end this suretyship early, I have to contact the bank to find out what amounts I owe the bank. I can ask that the surety be terminated immediately, or at a future date. The bank will then tell me the amount the debtor owes on the settlement date, and this includes the following:

The amount of the principal debt that I or the debtor owes on the settlement date;

Interest that I or the debtor owes on the principal debt on the settlement date;

The fees and costs owed by me or the debtor on the settlement date; and

The early termination costs.”

[31] It is argued on behalf of the respondents that the applicant will, at most, be entitled to only the settlement figures and not to have insights in the bank statements of the company. It is further argued that the applicant has been duly provided with the settlement figures by the bank. The argument is thus that the rights that the applicant has in terms of the suretyship agreement, has been complied with and that the applicant is not entitled to any more information.

[32] The respondents argue that the application, by lack of a clear right by the applicant to the order sought, should be dismissed with costs.

Analysis

[33] It is common cause that the applicant was entitled to the statements on 9 February 2021, when she was a director of the Company. The mere fact that the applicant did not deem it necessary at that stage to obtain the bank statements, but purely due to the fact that she is no longer a director and as such not entitled to the bank statements at

this belated stage, can not detract from the legal interest that Potgieter has in the bank statement.

[34] It is common cause that Potgieter paid an amount of R800,000.00 to the Company to release her as surety for the Company.

[35] It is common cause that there was an agreement between the parties that Potgieter will be released from suretyship of the Company.

[36] In obtaining confirmation that the Bank has released Potgieter as surety, and for purposes of an intended claim against the Company, the applicant seeks the bank statements of 9 February 2021.

[37] The applicant has a clear right to know whether she is released from suretyship or not. She also has a right to make an informed decision in relation to possible litigation instituted against the respondents. In other words, the applicant has a clear right to the information to establish whether she has prospects of successfully claiming damages against the respondents.

[38] On this basis I hold the view that the applicant has a clear right to receive the bank statement of 9 February 2021.

Injury committed or reasonably apprehended

[39] The respondents argue that the applicant does not rely on any injury committed or reasonably apprehended, but only that a reasonable apprehension of injury exists. On the basis that the applicant has received the settlement amount from the Bank, the respondents contend that the applicant cannot claim to have any reasonable apprehension of harm in not receiving the bank statement of 9 February 2021.

[40] In NCSPCA v Openshaw (462/07) [2008] ZASCA 78 (RSA) at paragraph [21] Mhlantla AJA found that:

“The test in regard to the second requirement is objective and the question is whether a reasonable man, confronted by the facts, would apprehend the probability of harm. The following explanation of the meaning of “reasonable apprehension” was quoted with approval in Minister of Law and Order v Nordien:

“A reasonable apprehension of injury has been held to be one which a reasonable man might entertain on being faced with certain facts. The applicant for an interdict is not required to establish that, on a balance of probabilities flowing from the undisputed facts, injury will follow: he has only to show that it is reasonable to apprehend that injury will result. However the test for apprehension is an objective one. This means that, on the basis of the facts presented to him, the Judge must decide whether there is any basis for the entertainment of a reasonable apprehension by the applicant.”

[41] The applicant argues that the apprehension of reasonable harm lies in the fact that she might be held liable by the Bank for the surety that she signed, in the event that the Company did not, as indicated by the Company, use the money given by the applicant to the Company to relieve her from the suretyship.

[42] The respondents deny that the applicant has set forth any grounds impending harm or injury.

[43] In consideration of the fact that it is common cause that the applicant has paid an amount to release her from suretyship, and the respondents indicated that the applicant is released from the suretyship, but deny to provide the Bank statement thereof, the applicant has indeed, in my view, established a reasonable apprehension of reasonable harm.

Absence of a satisfactory remedy

[44] The respondents argue that the applicant had access to the internet banking profile up and until the end of August 2021. The respondents claim that the applicant’s own omissions lead to the applicant’s predicament in not having obtained the statements when she had access to it.

[45] This argument is, respectfully in my view, warped. It does not make sense that a person who is entitled to something, forfeits her right to be entitled to the statements due to the fact that she did not foresee the possible necessity of needing the statements in future.

[46] The attitude of the respondents is clear in that they refuse the applicant access to the bank statement of 9 February 2021. The Bank cannot provide the bank statement of the Company to the applicant since she is no longer a member of the Company.

[47] The respondents have made it clear that they do not consent to Potgieter being provided the bank statement of 9 February 2021. The refusal of the respondents has the result that the applicant is compelled to approach the Court to obtain the bank statement.

[48] The applicant has no other remedy than to approach this Court for the relief sought.

[49] On this basis, I find that the applicant also surpasses the last leg of the enquiry in the establishment of a final interdict.

[50] In the premise, the applicant is entitled to the relief sought.

Costs

[51] The normal rule is that the party that is successful is entitled to his / her costs. I find no reason to deviate from this rule.

[52] The applicant asks for a penalising cost order. This is a situation where the issue could have been resolved amicably. In the exercise of my discretion, I hold the view that the facts merit a finding of cost on a punitive scale.

[53] On this basis, I find that the applicant is entitled to cost on a scale as between attorney and client.

Order:

[54] In the premises I make the following order:

i) The First Respondent’s overdraft account with the Second Respondent under account number 7[...] (“the overdraft facility”).

ii) The Second Respondent is authorised and ordered to provide the Applicant with a copy of the bank statement reflecting the amount that the First Respondent owed to the Second Respondent in terms of the overdraft facility on 9 February 2021.

iii) The First, Third, Fourth, Fifth and Sixth Respondents are ordered to pay (i.e jointly and severally) the costs of this application on a scale as between attorney and client.

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE RESERVED: 28 APRIL 2023

DATE OF JUDGMENT: 21 JULY 2023

APPEARANCES:

FOR APPLICANT: ADV JE KRUGER INSTRUCTED BY: MULLER ATTORNEYS C/O SMIT & STANTON INC 29 WARREN STREET MAHIKENG TEL: 018 294 3235 FAX: 018 294 8116 EMAIL: simone@mullerlegal.co.za REF: LFSMIT/POT14/0001/2022/rj FOR 1st, 3rd, 4th, 5th RESPONDENTS: ADV B RILEY INSTRUCTED BY: PIETER SCHOEMAN ATTORNEYS C/O VAN ROOYEN TLHAPI WESSELS INC 9 PROCTOR AVENUE MAHIKENG EMAIL: elizeo@pjalaw.co.za REF: LE01313