Valdor Holdings (Pty) Limited and Another v Dallas Trucking (Pty) Limited and Another (2019/23212) [2019] ZAGPJHC 254 (19 July 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2019/23212

In the matter between:

VALDOR HOLDINGS (PTY) LIMITED First Applicant

DORASAMY, SHERWIN Second Applicant

and

DALLAS TRUCKING (PTY) LIMITED First Respondent

NAICKER, PRELYN Second Respondent

JUDGMENT

Adams J:

[1]. This is an opposed urgent application by the applicants against the respondents for specific performance in terms of a contract for the purchase and sale of a truck – and – trailer combination. The applicants also apply for an order interdicting the respondents from disposing of the vehicle in the interim.

[2]. Central to this urgent application is the following question: If regard is had to the common cause facts in the matter, the surrounding circumstances and the communications between the parties, what were the terms and conditions of the contract concluded between the parties? The crux of the dispute relates to the purchase price payable by the first applicant to the first respondent for the purchase of the vehicle. It is the case of the applicants that the purchase price agreed upon was an amount of R800 000 all inclusive. This is disputed by the respondents.

[3]. The relief sought by the applicants in their notice of motion is for an order in the following terms:

‘1. This application is enrolled as an urgent application and the applicants' non – compliance with the forms and service prescribed by the Uniform Rules is condoned in terms of Rule 6(12)(a).

2. The first respondent is ordered to deliver ownership, possession and control of the following goods to the applicant:

a. One white, 2004 model, Mercedes-Benz Actros MP 2 with registration number FT 47 SL GP, currently parked at 1 First Avenue, Alberton North, Johannesburg.

b. Two 34 – ton, side – tipper trailers manufactured by SA Truck Bodies, currently parked at Office G11-G12, Van Dyk Secure Business Park, Boksburg.

(The abovementioned goods will hereinafter be referred to collectively as "the vehicle").

3. The first respondent shall take all steps necessary to ensure that ownership of the vehicle is registered in the name of the first applicant. Such steps shall include, but shall not be limited to, immediate delivery to the first applicant of:

a. All log books for the vehicle.

b. All vehicle registration certificates for the vehicle.

c. Duly completed and signed National Change of Ownership Form.

4. Pending compliance with the above orders, the first respondent and the second respondent are interdicted from disposing of the vehicle and / or alienating the vehicle in any form to a third party.

5. The respondents shall pay the costs of this application.’

[4]. The first and second respondents oppose the application, which is founded on the agreement between the parties for the purchase and sale of the vehicle (‘the agreement’), which agreement, according to the applicants, was concluded during or about August 2018. In the answering affidavit, the respondents states the following:

‘7.6. The essence of the deal was that the applicants would pay R800 000 to purchase the vehicle from the first respondent and the respondents would then utilize the purchase price to (i) pay off my partner for his interest in the vehicle before transfer of ownership to the first applicant, and (ii) the balance of the purchase price would be utilized towards the repairs to the vehicle.

7.7. Further, it was agreed that once the purchase price has been paid and the vehicle was in good repair, therefore up and running, the first respondent would, for a management fee, manage and organize work or contracts for the vehicle using (the first respondent’s)

knowledge, experience, contacts, client base and or tracking contracts subcontracts secured at the time.’

[5]. It is clear that the main dispute between the parties relates to the sum of R620 000, which, according to the respondents, would have been the first amount payable against the purchase price of R800 000. It is therefore the case of the respondents, the way I see it, that the purchase price for the vehicle was to be calculated as follows: R620 000 (payable to the second respondent’s partner) + R400 000 (the estimated repair costs) = R1 020 000. As I indicated above, the second applicant’s understanding of the agreement was that the R800 000 would have included the cost of repairs, whatever that may have been, with the balance payable to the first respondent. This is the issue which I need to adjudicate.

[6]. Which one of these two versions one accepts is a matter of interpretation based on the factual matrix in the matter. Importantly, the written communiqués between the parties are instructive.

[7]. It is common cause that the first applicant and the first respondent concluded a contract in terms of which the first applicant would buy the vehicle for R800 000 from the first respondent. The vehicle had ‘broken down’ and was in need of extensive repairs which the parties estimated would cost at least R400 000. Once repairs had been completed and the vehicle was up and running, the first respondent would give the first applicant sub – contracts, in respect of which the first applicant would pay to the first respondent ‘management fees’ as consideration for having arranged and facilitated the sub –

contracts.

[8]. The negotiations between the parties had culminated in the email of the 15th October 2018 from the first respondent to the first applicant, which reads as follows:

‘Good Day Sir,

Trusted you are well?

As discussed, this email is to finalize the entire business deal going forward with regard to you purchasing the truck and trailer I have available … … And most importantly being awarded direct fixed long – term contracts with various minds and clients of buyers of Dallas tracking (Pty) Limited.

… …

I have offered the following opportunity with regards to this truck and trailer: R800 000 buy not term contracts in place.

As mentioned, we are well aware of the current state of the Rig. I require the R400 000 cash investment to get the entire Rig back up and running again

This includes engine repairs, towing, storage, tracker, as well as the renewal of licensing of the Rig and to ensure all costs are covered the back up and running to its full potential.

… … ‘

[9]. The applicants say that, in terms of the agreement, they could have paid the price by paying others to repair the vehicle. The respondents insist that at least R620 000 of the price had to be paid in cash directly to first respondent.

[10]. The applicants submit that the version of the respondents is untenable.

[11]. I am required to adjudicate the factual dispute and to have regard to the Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Limited, [1984] ZASCA 51; 1984 (3) SA 623 (A), which held that the general rule is that a court will only accept those facts alleged by the applicant which accord with the respondent's version of events. The exceptions to this general rule are that the court may accept the applicant’s version of the facts where the respondent's denial of the applicant's factual allegations does not raise a real, genuine, or bona fide dispute of fact. Secondly, the court will base its order on the facts alleged by the applicant when the respondent's version is so far – fetched or untenable as to be rejected on the papers.

[12]. In Room Hire Co (Pty) Limited v Jeppe Mansions (Pty) Ltd, 1949 (3) SA 1155 (T0, it was held that:

‘A bare denial of applicant's material averments cannot be regarded as sufficient to defeat applicant's right to secure relief by motion proceedings in appropriate cases. Enough must be stated by respondent to enable the Court to conduct a preliminary investigation ... and to ascertain whether the denials are not fictitious and intended merely to delay the hearing.'

[13]. It is necessary to adopt a robust, common – sense approach to a dispute on motion. If not, the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. A Court should not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over – fastidious approach to a dispute raised in affidavits.

[14]. Applying these principles, Mr Van Eetveldt, Counsel for the applicants, submit that the version of the respondents is untenable, because their version lacks detail, is superficial and vague. For example, the second respondent gives no details and particulars relating to his partner, although the partner plays a pivotal role in the version of the respondents. Nowhere in the respondents’ papers is this partner named and no particulars are furnished of the alleged interest that the partner has in the vehicle. Mr Van Eetveldt submits that it may very well be that this is a phantom partner.

[15]. Furthermore, so the applicants submitted, the version of the respondents is contradicted by evidence. For example in an email of the 24th of October 2018, the second respondent confirms that all amounts paid out by the applicants towards the repair of the vehicle were to be deducted from the R800 000 purchase price. This is directly contradicted in his answering affidavit in which he alleged that the purchase price was R1 020 000.

[15].

[16]. I find myself in agreement with the submissions on behalf of the applicants. Importantly, I am of the view that, all things considered, the version of the respondents is an inherently improbable version which can and should be rejected on the papers. It flies in the face of the email of the 15th of October 2018, which expressly confirms that the purchase price agreed upon was R800 000.

[17]. There are other material discrepancies in the version of the respondents, As rightly pointed out by Mr Van Eetveldt, initially the respondents’ defence to the applicants' claim for delivery of the vehicle was that the first applicant owed the first respondent management fees. After the application was issued, the respondents seemingly abandoned that defence and instead, in their answering affidavit, raised the defence based on a phantom partner. If the parties were indeed ad idem that the first applicant had to pay the first respondent the amount of R620 000.00 in cash in addition to the repair costs, it can safely be accepted that the respondents would have raised that defence throughout and right from the outset. It did not. It sought to raise it at the final moment in its answering affidavit.

[18]. In the circumstances, I am of the view that the applicants are entitled to an order for specific performance. They have paid to the respondents the purchase price in accordance with the terms and conditions of their agreement. They are therefore entitled to insist on the first respondent performing as it undertook to do when it concluded the agreement for the purchase and sale of

the vehicle.

[19]. My aforegoing findings also fit in with the principles enunciated by Wessels JA in South African Railways & Harbours v National Bank of South Africa Ltd, 1924 AD 704. At 715 – 16 he has this to say:

‘Although the minds of the parties come together, courts of law can only judge from external facts whether this has or has not occurred. In practice, therefore, it is the manifestation of their wills and not the unexpressed will which is of importance...

…. the law does not concern itself with the working of the minds of the parties to a contract but with the external manifestations of their minds ..... if by their acts their minds seem to have met, the law will, where fraud is not alleged, look to their acts and assume their minds did meet and that they contracted in accordance with what the parties purport to accept as a record of their agreement.’

[20]. This pronouncement by the AD is a helpful guide in resolving conflicts of evidence on the existence or the terms of a contract. As was stated by the author of Christies: The Law of Contract in South Africa, 6th Ed, by RH Christie:

‘... in order to decide whether a contract exists one looks first for the true agreement of two or more parties and because such agreement can only be revealed by external manifestations one's approach must of necessity be generally objective’.

[21]. I find myself in agreement with this enunciation of the applicable legal principles. The point is this: notwithstanding the claim to the contrary by the respondents, the objective facts seem to support the claim by the applicants that an agreement was concluded between first applicant and the first respondent in terms of which the latter sold to the former the vehicle for an agreed purchase price of R800 000, a portion of which was to be allocated to the cost of repairing the truck. This conclusion is inescapable if regard is had to the facts in this matter. The objective facts in the matter and the external manifestations portrayed by the parties bear this out.

[22]. Another approach to be adopted in the adjudication of the dispute between the parties is one based on the rules relating to the interpretation of documents. In the matter of G4S Cash Solutions (SA) (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd and Another, 2017(2) SA 24 (SCA), the following principle is enunciated at par [12]:

‘Whilst the starting point is the words of the agreements, it has to be borne in mind, as emphasised by Lewis JA in Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd, [2015] ZASCA 111; 2016 (1) SA 518 (SCA) para 27, that this court has consistently held that the interpretative process is one of ascertaining the intention of the parties ─ in this case, what they meant to achieve by incorporating clause 9.9 in the agreements. To this end the court has to examine all the circumstances surrounding the conclusion of the agreements, ie the factual matrix or context, including any relevant subsequent conduct of the parties.’

[23]. Also, in Novartis SA v (Pty) Ltd v Maphil Trading (Pty) Ltd, 2016(1) SA 518 (SCA), the court has this to say relative to the issue as to whether parties intended to bind themselves contractually:

‘[35] The argument that the words of the document, signed by Van Jaarsveld and Van der Spuy on 14 October 2004, must be examined only linguistically, and that the genesis of the document, subsequent conduct and other facts relevant to the conclusion of the contract be ignored, is directly contrary to the decisions of this court cited above, and many others. But, as I have said, the issue here is not what the parties intended their contract to mean, but whether they intended to bind themselves contractually. That inevitably requires an examination of the factual matrix – all the facts proven that show what their intention was in respect of entering into a contract: the contemporaneous documents, their conduct in negotiating and communicating with each other, and, importantly, the steps taken to implement the contract.’

[24]. Applying these principles in casu, I find myself in agreement with the submissions on behalf of the applicants.

[25]. The applicant’s application therefore should be granted.

Order

In the result, I make the following order:-

1. This application is enrolled as an urgent application and the applicants' non – compliance with the forms and service prescribed by the Uniform Rules is condoned in terms of Rule 6(12)(a).

2. The first respondent is ordered to deliver ownership, possession and control of the following goods to the applicant:

2.1 One white, 2004 model, Mercedes-Benz Actros MP 2 with registration number FT 47 SL GP, currently parked at 1 First Avenue, Alberton North, Alberton.

2.2 Two 34 – ton, side – tipper trailers manufactured by SA Truck Bodies, currently parked at Office G11-G12, Van Dyk Secure Business Park, Boksburg.

(The abovementioned goods will hereinafter be referred to collectively as ‘the vehicle’).

3. The first respondent shall take all steps necessary to ensure that ownership of the vehicle is registered in the name of the first applicant. Such steps shall include, but shall not be limited to, immediate delivery to the first applicant of:

3.1 All log books for the vehicle.

3.2 All vehicle registration certificates for the vehicle.

3.3 Duly completed and signed National Change of Ownership Form.

4. Pending compliance with the above orders, the first respondent and the second respondent are interdicted from disposing of the vehicle and / or alienating the vehicle in any form to a third party.

5. The first respondent and the second respondent, jointly and severally, the one paying the other to be absolved, shall pay the first and second applicants’ costs of this application.

_________________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

HEARD ON: 17th July 2019 JUDGMENT DATE: FOR THE APPLICANT: 19th July 2019 Adv H Van Eetveldt INSTRUCTED BY: Leon Pillay & Co FOR THE RESPONDENT: Advocate INSTRUCTED BY: Mantengu Attorneys Incorporated