Swanvest 234 (Pty) Ltd v Nkwazi Resourcces Investments (Pty) Ltd and Another (871/2010) [2010] ZANCHC 30 (30 June 2010)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

Circulate to Regional Magistrates: Yes / No

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

Case no: 871/2010

Date heard: 2010-06-15

Date delivered: 2010-06-30

In the application of:

SWANVEST 234 (PTY) LTD …...................................................APPLICANT

and

NKWAZI RESOURCES INVESTMENTS (PTY) LTD …..............1ST RESPONDENT

EDISON KADZOMBE …..............................................................2ND RESPONDENT

Coram: MAJIEDT J

JUDGMENT

MAJIEDT J:

A. INTRODUCTION

The Sable Antelope (Hippotragus Niger) is a magnificent, rare antelope commonly found in the wooded savannah areas of East and Southern Africa.1 This case concerns the ownership of 153 Sable Antelope (“the Sable”) presently being kept in Lusaka Park, Lusaka, Zambia.

The applicant, Swanvest 234 (Pty) Ltd (“Swanvest”), seeks a final declarator that it is the owner of the Sable as well as a declarator that it is entitled to export the Sable from Zambia into this country, subject to compliance with all the legal requirements pertaining to such export. Interdictory relief sought and obtained on an interim basis in the application has been abandoned presumably, as will appear later, for strategic reasons.2 The declarators and the now abandoned interdict were granted on an urgent interim and de facto ex parte basis by Williams J. On the anticipated return day before me, the respondents opposed these orders being made final, full sets of affidavits having been filed.

B. THE PARTIES

Swanvest is a private South African company whose registered office was in Klerksdorp, North West Province at the time of the issuing of the application, but which has since been relocated to Kimberley. It owns a large game farm in the Barkly-West district, where the Sable is intended to be settled, once they arrive in this country.

The first respondent, Nkwazi Resources Investments (Pty) Ltd (“Nkwazi”) is also a private South African company with registered office in Fourways, Johannesburg. The second respondent, Mr. Edison Kadzombe (“Kadzombe”) is a Zimbabwean citizen, the sole shareholder and director of Nkwazi.

In these proceedings and in all the relevant negotiations and transactions forming the subject matter of the case, Kadzombe acted for and on behalf of Nkwazi. Mr. Christiaan Andreas Visser (“Visser”) is a shareholder and director of Swanvest and at all material times he acted for Swanvest in the negotiations, transactions and the present proceedings.

C. BACKGROUND

Kadzombe became known to Visser as a person who had the necessary contacts to arrange for the purchase and export of Sable Antelope in Zambia. Visser and one Nicolaas Johannes Gouws (“Gouws”) held several meetings with Kadzombe to facilitate the purchase and export of the Sable. Although it is not entirely clear on the papers, Gouws appears to have played the role of an advisor or agent to Visser throughout.3 Gouws deposed to the founding affidavit in these proceedings. His authority to act on behalf of Swanvest is, however, not in dispute

at all. One such meeting culminated in a written agreement being concluded between Swanvest and Kadzombe on 19 May 2009 at Midrand, Gauteng.4 This agreement (“the joint venture agreement”) was signed by Visser (on behalf of Swanvest) and Kadzombe. Its material terms are that Kadzombe would facilitate the procurement

and importation of the Sable from the Zambia Wildlife Authority (“ZAWA”) on behalf of Swanvest. The latter would bear all costs associated with such procurement and importation. As quid pro quo Kadzombe would obtain a fifteen percent share in the imported Sable and Swanvest obtained a pre-emptive right to buy the said Sable back from Kadzombe at eight hundred thousand Rand per animal.

A tax invoice was issued by ZAWA to Nkwazi on 29 August 2009 in respect of the Sable. The purchase consideration was reflected as USD 734 400.00 (seven hundred and thirty four thousand four hundred US Dollar). Swanvest alleges that this tax invoice is a product of fraud perpetrated by Kadzombe, whereas the latter asserts that it is a genuine invoice in favour of Nkwazi as purchaser of the Sable.

At a further meeting between the parties an agreement (“the cession agreement”) was reached that Nkwazi would cede all its right, title and interest in the sale agreement between ZAWA and Nkwazi to Swanvest. The stated objective was to correct the impression that Nkwazi is the purchaser of the Sable by virtue of the tax invoice alluded to above. Oral negotiations were conducted between Kadzombe (on behalf of Nkwazi) on the one hand and Visser and Gouws (on behalf of Swanvest) on the other. These oral negotiations culminated in Kadzombe conveying from Johannesburg to Gouws in Kimberley that

Nkwazi would agree to Swanvest being substituted as purchaser of the Sable. It was also agreed that Gouws would reduce this oral

agreement to writing in a cession agreement. A written cession was prepared by Gouws on Visser’s instructions. Gouws was

instructed to record an agreement so that the effect would be to substitute Swanvest for Nkwazi as purchaser of the Sable. Visser and Kadzombe, acting on behalf of Swanvest and Nkwazi respectively, signed the cession agreement on 26 May 2009 at Kimberley and Roodepoort respectively. The cession agreement recorded a cession as security. It is Swanvest’s case that this is a mistake common to the parties and that the agreement stands to be rectified so as to reflect same as an out and out cession. Nkwazi’s case is that the document reflects the parties’ true intention and that it constitutes a cession in securitatem debitii.

Swanvest paid the full purchase price for the Sable (USD 734 400.00) to ZAWA on 6 May 2009 and in July and August 2009 it set about capturing and securing the Sable in Zambia. As stated, the animals are presently kept at Lusaka Park, Lusaka, Zambia.5 Swanvest avers that it has thus far expended in excess of twenty-two million Rand to capture and maintain the Sable in Zambia.

On 17 May 2010 Swanvest accepted Kadzombe’s repudiation as far as the joint venture agreement is concerned, but not in respect of Nkwazi’s repudiation of the cession agreement. This was conveyed to their attorneys by letter from Swanvest’s attorneys on that date. The alleged repudiation emanates from a letter written by Nkwazi’s and Kadzombe’s attorneys on 10 May 2010.

During the middle and latter part of May 2010, Kadzombe and representatives of ZAWA attempted to take control of the Sable at Lusaka Park, but they were thwarted by Swanvest employees. It came to Visser’s ears that Kadzombe was seeking to assert ownership of the Sable and that he was attempting to sell them to one Mr. Hardy de Kock.

Kadzombe’s aforementioned conduct led to Swanvest obtaining an ex parte interim injunction pendente lite in the Zambian High Court on 9 June 2010. The fact of this Zambian court order was disclosed in Swanvest’s replying papers. The papers in the Zambian proceedings, consisting of a writ of summons, a statement of claim and a supporting affidavit deposed to by Visser on Swanvest’s behalf, were handed up from the Bar during argument. The Zambian proceedings and the issues requiring determination therein raises the issue of lis pendens, which will be discussed presently.

The matter is of some urgency, since the Sable have been at Lusaka Park for a few months now, a situation which is less than satisfactory in respect of their well-being. As stated, 15 of the Sable are said to have perished at this stage. Nkwazi and Kadzombe anticipated the return day (set for 16 July 2010) in terms of Rule 6(8) and asked that the application be reconsidered in terms of Rule 6(12)(c). They ask that the rule nisi be discharged and that the application be dismissed with costs on the scale as between attorney and client.

Swanvest failed to disclose in its founding papers that Bertelsman J had issued an order in the North Gauteng High Court interdicting and prohibiting the issuing of any import permits for the importation of live Sable Antelope into this country. This fact was disclosed by Kadzombe in his answering affidavit. One would have thought that this information is material to the present application, since a declarator is sought that Swanvest is permitted to export the Sable from Zambia into this country. The failure to disclose this therefore prima facie appears to be deserving of censure. But Swanvest has dismissed the omission on the basis that those

proceedings and the order issued by Bertelsman J are irrelevant to the present proceedings. I shall revert to this aspect in due course.

D. THE ISSUES

The following issues require determination: this Court’s jurisdiction, the true nature of the cession agreement, lis pendens and ownership of the Sable.

E. JURISDICTION

Swanvest’s jettisoning of the interim interdict in its favour evidently has as its objective overcoming the jurisdiction hurdle on at least one front. And its counsel admitted as much in argument. The terms of the interim interdict create considerable difficulties for Swanvest in respect of jurisdiction. I say no more than to express some doubt whether this Court would have jurisdiction to issue a final interdict in the terms originally granted on an interim basis. But the interim order has been discarded and I need not give it any further consideration. The gravamen of the issue regarding jurisdiction is to be found in the lex loci contractus which Swanvest relies upon to assert this Court’s jurisdiction. In this respect the cession agreement takes centre stage. Swanvest also relies to a lesser extent on the doctrine of effectiveness on this issue.

It became common cause during argument that a South African court, and not a Zambian court, has jurisdiction to decide ownership of the Sable based on the cession agreement. Nothing much needs therefore to be said about it. It does, however, raise questions about the pending action in the Zambian High Court, a matter which I find more convenient to discuss under lis pendens. The remaining issue is whether this Court or another Court, such as the North Gauteng or South Gauteng High Court, has jurisdiction.

Absent any further claim for interdictory relief, Swanvest only seeks a declaration of rights. Section 19(1)(a)(iii) of the Supreme Court Act6 empowers this Court, in its discretion and at the instance of any interested person, to enquire into and determine any existing, future or contingent right.7 In order to determine which particular Division of the High Court may grant a declarator in a particular case, general common-law

principles apply. Thus jurisdiction will be established if there is a sufficient connection between a Court and a matter before it so that the Court is able to decide the matter and give a judgment which will be res judicata between the parties8. Where the applicant for a declarator is an incola of the area over which a court exercises territorial jurisdiction, such court will be entitled to grant a declarator.9

In the present instance Swanvest is not seeking any consequential relief beyond the declarators (thus the strategic abandonment of the interdictory relief) and it is an interested party. It was not, however, an incola of this court when the application was launched.10 To obviate this difficulty, Swanvest relies on S 19(1)(a) of the Supreme Court Act and on the doctrine of effectiveness.

Section 19(1)(a) reads:

“(a) A provincial or local division shall have jurisdiction over all persons residing or being in and in relation to all causes arising

and all offences triable within its area of jurisdiction and all other matters of which it may according to law take cognizance, and shall, subject to the provisions of subsection (2),in addition to any powers or jurisdiction which may be vested in it by law, have power-

(i) to hear and determine appeals from all inferior courts within its area of jurisdiction;

(ii) to review the proceedings of all such courts;

(iii) in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.”

The concept of “all causes arising” in the above section has been interpreted in a long line of cases to mean legal proceedings in which a Court has common law jurisdiction or by relevant statute.11 In the present matter Swanvest relies on the fact that, on its version, the cession agreement was concluded in Kimberley. It is trite that, generally, a contract comes into existence when and where an offeror receives communication of the offeree’s acceptance of the offer.12

It is common cause that Gouws who, as stated is an attorney, dictated the cession agreement over the telephone from Kimberley to an employee in Nkwazi’s attorney’s offices in Roodepoort, Gauteng. This employee typed it and Nkwazi’s attorney signed it there, whereafter the document was sent by telefacsimile transmission to Gouws in Kimberley, who signed it. Swanvest avers that since Gouws was in Kimberley when he received the communication that the offer has been accepted, the cession agreement was concluded in Kimberley. The same submission is made in respect of the preceding oral offer, accepted by Gouws in Kimberley.

The countervailing argument on behalf of Nkwazi is threefold, namely that the attorney had no authority to sign the cession agreement on Nkwazi’s behalf, secondly that the cession agreement was in fact concluded in Roodepoort and thirdly that a cession is a unilateral act consisting as it does of the granting of rights, which does not require acceptance.

The reliance on the attorney’s alleged lack of authority can be rejected without more. It would suffice to record that Kadzombe made no mention of this important fact for over a year. The probabilities overwhelmingly militate against an officer of the court signing such an important document without her client’s authority. The attorney herself does not make mention of this important fact in subsequent correspondence concerning the cession agreement (including the fact that she has signed it) and in a confirmatory

affidavit. I accordingly find that the cession agreement was properly signed by the attorney, acting with the requisite authority

from her principal, Nkwazi.

I have already explained how the cession agreement came to be typed in Roodepoort, signed there on Nkwazi’s behalf, transmitted by telefacsimile to Kimberley and signed here by Gouws on Swanvest’s behalf. On the authority cited above (footnote 12) the contract would thus be concluded where communication was received that the offer has been accepted, i.e. Kimberley, and this court would have jurisdiction. But the startling submission was advanced on behalf of Nkwazi that the roles were in fact reversed in that Gouws had made the offer from Kimberley which was accepted in Roodepoort. The submission is not supported by the common cause facts at all. Moreover, this was never Nkwazi’s case on the papers – it contented itself with a challenge to the attorney’s lack of authority as discussed above and with an averment that the cession is one in securitatem debitii. This patent afterthought is devoid of merit and can be rejected without more.

The legal position with regard to contracts concluded between parties orally in each other’s presence as set out above also applies in the instances of contracts concluded by way of telefacsimile transmission.13 On the common cause facts this Court would ordinarily thus have jurisdiction. We are, however, dealing here with a cession where

different considerations apply.

It is true that no formalities are required for the valid execution of a cession, which can even occur orally or tacitly as it is an act of transfer of personal rights.14 As such no acceptance is in stricto sensu required from the cessionary (this discussion does not include the question of notice to the debtor which is a vexed question in our law). There is therefore no room for the application of the normal principles relating to offer and acceptance discussed above. But as I will presently show, there are other grounds on which this Court does in fact have jurisdiction. It does seem to me (although I do not express a final view on the matter) that a case can be made out that the place where a cessionary expresses his intention to acquire the personal rights ceded (the animus acquirendi) can also form a ground for jurisdiction, i.e. that the court situated at a place where such intention is expressed will have

jurisdiction.

Swanvest’s reliance on the cession agreement to establish the forum contractus is misconceived. For the reasons that follow later, neither Kadzombe nor Nkwazi were at any stage the true purchaser of the Sable, nor were they intended to be. Kadzombe featured only as Swanvest’s agent in terms of the joint venture agreement –

this was common cause between the parties. Kadzombe’s duty as agent was to facilitate Swanvest’s purchase and importation of the Sable. For that he was to be generously rewarded in that fifteen percent of the Sable which ended up here would become his and Swanvest would have a pre-emptive right to buy the fifteen percent of the Sable back from him at R800 000-00 per animal. At best Kadzombe thus had a mere spes of becoming owner of fifteen percent of the Sable once he had fulfilled his duties in terms of the joint venture agreement. Nkwazi came into the picture by virtue of the false tax invoice – as will presently appear, it was never intended to be the true purchaser, not was it ever on the facts the true purchaser.

The obvious attempt to remedy the problem created by the false invoice obfuscated the matter further and created more questions than answers. Is it an out and out cession or is it a cession in securitatem debitii? More importantly what rights, title or interest did Nkwazi have to cede to Swanvest? It quite evidently had none. All Nkwazi had was a misleading tax invoice made out by ZAWA in its name. The cession agreement purported to transfer rights, title and interest from an entity which already had in place an oral agreement with ZAWA to purchase Sable. A cedent can only transfer such rights as it has and no more.15 The cession agreement is in my view a red herring on the jurisdiction question. The answer is rather to be found in the locus solutionis and in the forum contractus.

If a contract is to be performed (locus solutionis) within a court’s area of jurisdiction that court would have jurisdiction.16 In the present matter it was not disputed that performance on Swanvest’s part in the form of payment for the Sable to ZAWA,

had been effected from Swanvest’s bank in Kimberley. That act of performance vests jurisdiction in this Court. Counsel for Kadzombe and Nkwazi very properly conceded this point, albeit with the rider that this is only one factor to be considered.

An essential component in determining jurisdiction is the principle of effectiveness i.e., the power of a court to make its order effective and to enforce same.17 Thus, for example, even though a court may have no power over a defendant’s person, it may still have the power to give an effective judgment where the order sought by a plaintiff is one to be performed within the court’s area of jurisdiction.18 I have already alluded to the performance in this Court’s area of jurisdiction by Swanvest. The doctrine of effectiveness alone does not by itself confer jurisdiction on a court – there must be a recognised ground for jurisdiction then the doctrine of effectiveness will be satisfied.19

The contractual nexus in this matter as regards purchase and sale of the Sable is between ZAWA (qua seller) and Swanvest (qua purchaser). Although it is not altogether clear on the papers, it seems that the agreement between ZAWA and Swanvest was oral. Be that as it may, the agreement, simplified, was that ZAWA would sell the Sable to Swanvest for a purchase consideration of USD 734 400-00 (seven hundred and thirty four thousand four hundred US dollar). The ultimate destination for delivery of the Sable is Swanvest’s Wolwefontein farm in the Barkly-West district, within this Court’s area of jurisdiction. The place where delivery is to be effected also establishes the jurisdiction of this Court. This, added to the fact that performance in the form of payment for the Sable had to be and in fact was effected here in Kimberley by Swanvest, are sufficient grounds to establish jurisdiction of this Court.

I conclude the discussion under this rubric with a finding that this Court has the requisite jurisdiction to determine the issues in this application. I turn to a consideration of the cession. I do not intend dealing with it in much detail, given my findings above.

F. NATURE OF THE CESSION

On the face of it the cession agreement resembles one for the security of a debt. It reads thus (after the usual recordal of the parties thereto):

“1. Nkwazi Resources (Pty) Ltd entered into a sale agreement with ZAWA whereby they purchased a maximum of 153 Sables from ZAWA;

2. Edison Kadzombe is the sole Director and Shareholder of Nkwazi Resources (Pty) Ltd.

3. Edison Kadzombe and Swanvest 234 (Pty) Ltd entered into a joint venture agreement to purchase and import that sables to South Africa.

4. The invoice for the purchase of the animals was issued in the name of Nkwazi Resources (Pty) Ltd:

NOW AND THEREFORE THE PARTIES AGREE;

1. It is agreed between the parties that any rights, interest and title in the sale agreement, be ceded to Swanvest 234 (Pty) Ltd as security.

2. It is thus agreed between the parties that Nkwazi (Pty) Ltd hereby cede all its right, title and interest in the Sale Agreement with ZAWA to Swanvest 234 (Pty) Ltd as security for the Agreement.

3. It is further agreed between the parties that such a cession will come into effect immediately upon signature of this cession agreement.

4. Swanvest 234 (Pty) Ltd hereby accepts the right title and interest.”

Evidence is admissible to prove that a cession which appears to be a security cession was in fact intended to be an out and out cession.20

In this instance the evidence is overwhelming that the cession agreement was intended to be a cession proper and not one for security. There was no debt or any other obligations to secure at the time and Nkwazi’s counsel was unable to point to any during argument. A purposive interpretation of the cession agreement is warranted in the present instance, since the wording thereof is ambiguous and because giving effect to the words relating to security in the document would “nullify the essential purpose of the contract”.21 The cession agreement was aimed at satisfying the requirements of the S.A. Reserve Bank and Swanvest’s bankers. The joint venture agreement, although subsequently cancelled due to Kadzombe’s repudiation, deserves consideration as it too strongly points to the fact of Swanvest being the intended purchaser. It said so in unequivocal terms – “Swanvest intends to import game, namely a maximum of 153… Sable from Zambia” and “The principal objective of the co-operation agreement is to enable Swanvest to import the game to (its farm near Barkly-West)”.

Taking into account the above, I am satisfied that the cession agreement is an out and out cession.

G. LIS PENDENS – THE ZAMBIAN PROCEEDINGS

In its statement of claim in the Zambian proceedings Swanvest seeks specific performance of the cession agreement against Nkwazi, in the alternative damages for breach of the joint venture agreement against Kadzombe and in the further alternative, damages for breach of the cession agreement against Nkwazi. It also seeks a declarator that it is the legal owner of the Sable, entitled to (lawful) possession thereof and entitled to export same to this country. It avers that ZAWA has not caused delivery of the Sable to Nkwazi and Kadzombe. Lastly it claims an injunction restraining Kadzombe, Nkwazi and ZAWA from interfering with Swanvest’s proprietary rights in respect of the Sable or from moving them from Lusaka Park. As stated,22 Swanvest has been granted an ex parte interim injunction in these terms by the Zambian High Court against the aforementioned three parties and against the Zambian Attorney- General (due to his potential interest in the matter). The statement of claim was issued on 8 June 2010 and the interim injunction was issued on 9 June 2010.

In the statement of claim Swanvest sets out the salient facts in support of its claim. Those facts accord broadly with the summary in part C of this judgment above. In the affidavit deposed to by Visser in support of the ex parte summons for the interim injunction, the salient facts are repeated under oath. A striking feature of the exposition of facts, both in the statement of claim and in Visser’s supporting affidavit, is that no mention is made at all of the cancellation of the joint venture agreement. Nothing turns on this, however, in the present proceedings. Another striking feature is that Swanvest seeks a declarator as to its ownership of the Sable in the Zambian High Court as well. This raises starkly the issue of lis pendens.

It is well established in our law that the requisites for a successful plea of lis pendens are similar to that of res judicata, namely that the two actions must be between the same parties or their successors in title, concerning the same subject –

matter and founded upon the same cause of complaint. Its underlying rationale is that there should be finality in litigation in the same suit between the same parties.23 The mere existence of one or more identical issues in dispute in the two matters does not, however, satisfy these requirements.24

In deciding the issue of lis pendens, a court exercises a discretion –considerations of equity and convenience would be the deciding factors.25 Another important consideration is whether the party who raises lis pendens as a defence has a bona fide defence on the merits.26 The same considerations apply to proceedings in a foreign forum.27 In the present matter the parties are not the same in the two sets of proceedings – in Zambia ZAWA and the Attorney-General have been joined as defendants. Much was made during argument by counsel for Kadzombe and Nkwazi about the provisions contained in The Foreign Judgment (Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia. The submissions in this regard are premised on a misconception – Swanvest does not seek to enforce a judgment or order of this Court in Zambia (in which event the aforementioned Act would apply), but it seeks an order here and another one in broadly similar terms in Zambia. I have already found that this Court has jurisdiction on various grounds to consider and decide the declarators sought. Plainly the Lusaka High Court also has jurisdiction to determine title to the Sable and aspects ancillary thereto by virtue of the fact that the animals are physically in its area of jurisdiction at this time.

The primary question for determination is whether equity and convenience favour the granting of the declarators by this Court. I think this Court would fail in its duty, as was submitted by Swanvest’s counsel, if it should fail to come to the aid of a party who is now an incola of this Court and who has a good case on the merits. And, as will presently appear, in my view Swanvest does indeed have a very good case on the merits. I have little doubt that equity and convenience favour a determination of the matter in this Court for reasons which appear in the judgment above and those which follow under the next rubric. In my view the defence of lis pendens must fail. In the exercise of my discretion and given the fact that Kadzombe and Nkwazi have no bona fide defence on the issue of ownership of the Sable, I find for Swanvest on this issue. It is to the question of ownership that I turn next.

H. OWNERSHIP OF THE SABLE

I deal briefly first with the proceedings before Bertelsman J. The Red Meat Industry Forum brought an urgent application to restrain the Minister of Agriculture, Forestry and Fisheries and others from issuing import permits for the importation of live Sable Antelope into this country. Swanvest, Visser, Kadzombe and a number of other interested parties were joined as respondents. By agreement between the parties an undertaking in the terms set out above was made an order of court. The Minister also undertook to embark on a public participatory process to finalise her proposed policy on the importation of live Sable antelope. The point was made by counsel for Kadzombe and Nkwazi that this process is not completed as yet, therefore rendering nugatory a declarator as to Swanvest’s right to export the Sable from Zambia. This parry was warded off by Swanvest through an affidavit by one Keet in the replying papers. Keet is the Acting Director, Veterinary Services in the abovementioned Department. He attached a memorandum to his affidavit in which he sets out the outstanding procedures to be concluded in order to finalise the importation of Sable Antelope from Zambia. The gist thereof is that the entire process should be completed within two months from the date of his memorandum, 9 June 2010. In the circumstances it seems to me that Swanvest’s counsel is by and large correct in his submission that the proceedings before Bertelsman J is largely irrelevant to the present matter. But I take the view that mention should nevertheless have been made of it in the founding papers, since this application was for all intents and purposes brought ex parte.

Both parties lay claim to ownership of the sable. Nkwazi bases its claim on an internal memo from ZAWA’s Acting Director General to the area warden of Lusaka National Park, dated 21 May 2010. It was written against the background of Kadzombe’s unsuccessful attempt to take possession of the Sable, alluded to above. Nkwazi relies further on the tax invoice issued by ZAWA in respect of the Sable.

On the common cause facts the probabilities are overwhelmingly in favour of Swanvest as far as ownership of the Sable goes. I list only some of them (the list is not exhaustive):

[41.1] There is no agreement of purchase and sale in terms whereof Nkwazi bought the Sable from ZAWA. The only agreements are the now cancelled joint venture agreement and the extant cession agreement. All that Kadzombe in his personal capacity could lay claim to was his “commission” payment in the joint venture agreement. It will be recalled that his reward would have been fifteen percent of the Sable that eventually arrived in the country, which Swanvest could buy back from him at R800 000-00 per animal. It is quite significant that both Nkwazi and its attorney demanded in writing payment from Swanvest in the amount of R17 million on 23 February 2010 and 28 January 2010 respectively. Nkwazi’s demand is based on “the purchase price for the sable you bought from us”. The attorney’s demand is premised on “West Zambian Sables secured in Zambia Kafue National Park”. The dichotomy in the basis for the demand is startling, but of even more significance is the amount of the demand. It can only be for Kadzombe’s “commission” calculated as being fifteen percent of the 153 Sable at R800 000-00 per animal, less the amounts already paid to Kadzombe by Swanvest (R1.23 million in total) which amounts to about R17.3 million. This lends support to Swanvest’s case.

[41.2] It is common cause that Swanvest paid the purchase price to ZAWA who acknowledged receipt of same on the papers. There is no proof, nay not even a suggestion that Nkwazi or Kadzombe made payment to ZAWA.

[41.3] The cession agreement was plainly aimed at rectifying the erroneous impression created by the tax invoice. Nkwazi’s denial on this aspect is not borne out by the probabilities and by the cession agreement itself.

[41.4] Swanvest set about capturing and securing the Sable at great expense (in excess of R22 million)with ZAWA’S consent. Nkwazi took no such steps.

[41.5] As a goodwill gesture Swanvest donated two rhinoceros to the Zambian people after Swanvest succeeded in its quest to purchase the Sable.

[41.6] The Sable have been under Swanvest’s control from its capture until now.

[41.7] In correspondence Swanvest enquired from the attorney for Kadzombe and Nkwazi as to when the risk in the Sable would pass to Swanvest. In response it was never asserted that such risk would not pass. This enquiry and response thereto is consonant only with an acknowledgment of Swanvest’s title to the Sable.

[41.8] Even Nkwazi’s and Kadzombe’s present Zambian attorneys recorded in a letter dated 28 May 2009 that Swanvest is the owner of the Sable.

[41.9] All the ZAWA correspondence (save for the internal memo referred to above) make mention of Swanvest as owner and refers to Kadzombe only as Swanvest’s agent.

[41.10] The final straw is that delivery of the Sable was on the common cause facts given to Swanvest and not to Kadzombe or Nkwazi.

I therefore find on the papers before me that Swanvest has established its ownership of the Sable on a preponderance of probabilities. I am able to reach this finding on the affidavits before me, since the disputes raised by Kadzombe and Nkwazi are not genuine and in good faith. They can be dismissed as patent untruths. In the present matter there has not been a serious, unambiguous and truthful raising of disputes.28

Swanvest is entitled to declarators in final order form. I issue the following order:

[41.1] It is declared that the applicant is the owner of the ± 153 Sable Antelope kept in Lusaka Park, Lusaka, Zambia.

[41.2] It is declared that the applicant is entitled to export the said Sable Antelopes to the Republic of South Africa after having complied with all the requirements of the authorities involved.

[41.3] The respondents are directed to pay the costs of this application jointly and severally, the one paying the other to be absolved.

_____________

SA MAJIEDT

JUDGE

FOR THE APPLICANT : ADV FW DANZFUSS SC

INSTRUCTED BY : VAN DE WALL AND PARTNERS, KIMBERLEY

FOR THE RESPONDENTS : ADV F BOTES

INSTRUCTED BY : DUNCAN & ROTHMAN ATTORNEYS, KIMBERLEY

1http:/en.wikipedia.org/wiki/Sable Antelope (Accessed on 22 June 2010)

2The abandoned interim interdict sought to restrain the respondents from “acting, purporting to act or negotiating on behalf of the applicant in any way whatsoever”

3Gouws is a local attorney, but he did not act in this capacity for Swanvest or Visser, although the firm of which he is a partner, acts for Swanvest as its attorneys of record herein.

4Gouws drafted this agreement.

5It is averred that 15 of the Sable have perished at this stage.

6No 59 of 1959

7Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA) at paras [16] and [17]; 212H – 213E.

8Pistorius : Pollak on Jurisdiction, 2nd ed at 153; Ex parte Nell 1963 (1) SA 754 (A) at 760 A-B

9Estate Agents Board v Lek 1979 (3) SA 1048 (A) at 1068 A-B

10 It will be recalled that Swanvest’s registered office was in Klerksdorp in the North West province at the time.

10

It will be recalled that Swanvest’s registered office was in Klerksdorp in the North West province at the time.

11Leibowiz t/a Lee Finance v Mhlana and others 2006 (6) SA 180 (SCA) at para [7], and cases cited there.

12R.H Christie : The Law of Contract, 5th ed at 29

13Entores Ltd v Miles Far East Corporation [1995] 2 QB 327 (CA)([1995] 2 ALL ER 493) at 337, cited with approval in Jamieson v Sabingo 2002 (4) SA 49 (SCA) at 54B-E. And see : UCDP v Independent Electoral Commission [2004] 2 All SA 336 (B) at para [24]

14LTA Engineering CO Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) at 762A; Johnson v Incorporated General Insurances Ltd 1983 (1) SA 318 (A) at 331G

15Paiges v Van Ryn Gold Mines Ltd 1920 AD 600 at 616

16Hugo v Wessels 1987 (3) SA 837 (A) at 850A-C

17Ewing McDonald E Co Ltd v M&M Products Co 1991(1) SA 252 (A) at 259-260

18Pollak on Jurisdiction, supra at p.4

19Bisonboard Ltd v Braun Woodworking Machinery Ltd 1991(1) SA 482(A) at 499E-F

20Bank of Lisbon and SA Ltd v The Master 1987 (1) SA 276 (A) at 294 E

21As stated in Turner Morris (Pty) Ltd v Riddell 1996 (45) SA 397 (E) at 404 H-I And see: Venter v Credit Guarantee Insurance Corporation of Africa Ltd [1996] ZASCA 50; 1996 (3) SA 966 (A) at 973 D

21As stated in Turner Morris (Pty) Ltd v Riddell 1996 (45) SA 397 (E) at 404 H-I

And see: Venter v Credit Guarantee Insurance Corporation of Africa Ltd [1996] ZASCA 50; 1996 (3) SA 966 (A) at 973 D

22See paragraph [11] above

23Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) at paragraph [16]; 548J – 549A Shapiro v SA Recording Rights Association Ltd 2008 (4) SA 145 (W) at paragraph [6]; 148I – 149A

23Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) at paragraph [16]; 548J – 549A

Shapiro v SA Recording Rights Association Ltd 2008 (4) SA 145 (W) at paragraph [6]; 148I – 149A

24Richtersveld Community v Alexkor Ltd and another 2000 (1) SA 337 (LCC) at 342D-F

25Nordbak (Pty) Ltd v Wearcon (Pty) Ltd and others 2009(6) SA 106(W) at 114I-J

26Ibid

27Van As v Apollus en andere 1993 (1) SA 606(C) at 609I-609A; 610F-G

28Wightman t/a JW Construction v Headfour (Pty) Ltd and another [2008] ZASCA 6; 2008 (3) SA 371(SCA) at para [13]