Waleed Investments Holdings (Pty) Ltd v Mandonca (41931/2014) [2017] ZAGPJHC 98 (30 March 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 41931/2014

Not reportable

Not of interest to other judges

Not revised.

30/3/2017

In the matter between:

WALEED INVESTMENTS HOLDINGS (PTY) LTD Applicant

and

MANDONCA: NICOL PEREIRA Respondent

JUDGMENT

FISHER J:

[1] This is an application for a money judgment. It started life as an application for the sequestration of the respondent. The respondent vigorously defended the sequestration application. The applicant then sought to amend the relief sought in the notice of motion on the basis that the winding up was no longer persisted with but that a claim for a money judgment was now sought arising out of the debt relied on for locus standi in the sequestration claim.

[2] The respondent had proper notice of the applicant’s intention to seek alternative relief in the form of the money judgment and the parties exchanged further affidavits in relation to the alternative claim. The further set of affidavits which were admitted by the court. A court, may, in its discretion, grant alternative relief to the relief originally claimed. It will generally only do so where a respondent has been apprised of the intention to seek same, and has had the opportunity to deal with the claim (see: Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 268B-J ). I am satisfied that this is a proper case for the alternative claim to be considered.

[3] The claim is based on a compromise agreement. The history of the relationship between the parties is as follows:

1. A written agreement was concluded on 15 May 2014 by the applicant on the one hand and Old Fashioned Fish & Chips Distribution Centre (Pty) Ltd , Old Fashioned Fish & Chips (Pty) Ltd (of which companies the respondent is a director and registered shareholder),

and the respondent on the other;

2. it was a term of this agreement that an amount of R4.3 million would be advanced to the major shareholder of the two companies;

3. The respondent alleges in her answering affidavit that, although she is the registered shareholder in question she holds such shares as nominee of her mother, Emelia De Sousa;

4. Be that as it may there is no dispute that the amount of R4.3 million contemplated in the agreement was duly advanced;

5. In terms of the agreement this advance was to be for a period of 6 months;

6. It is not disputed that the advance was not repaid to the applicant within this period.

7. This led to the conclusion of a settlement agreement between the parties in relation to the obligations which under the initial agreement.

8. The following are relevant features of this settlement agreement for the purposes of this judgement:

a. The respondent signed the agreement on her own behalf and as director and representative of the companies;

b. The respondent undertook personally to repay the amount of R4.3 million owing under the initial agreement to the applicant by 15 November 2014;

c. It was agreed that on payment of such amount, the obligations under the initial agreement would terminate;

d. There were in addition other terms relating to the holding and return of securities which are of no moment for present purposes;

e. The applicant arguably had the right to proceed under the initial agreement if the amount due under the settlement agreement was not paid.

[4] The applicant has, in any event, chosen to seek performance of the settlement agreement as it was entitled to do, and thus whether reliance on the initial agreement would have been available to it is irrelevant.

[5] The effect of a compromise is to extinguish the underlying rights and obligations which are the subject of the compromise. (see Road Accident Fund v Ngubane 2008 (1) SA 432 (SCA) at 436I – 437E; Lieberman v Santam Ltd 2000 (4) SA 321 (SCA) paras 11 - 12).

[6] Parties to a compromise thus are precluded from enforcing rights and obligations arising from the compromised claim. In Hamilton v Van Zyl 1983 (4) SA 379 (E) the court put it thus (at 383E - H):

“A compromise need not necessarily however follow upon a disputed contractual claim. Any kind of doubtful right can be the subject of a compromise. . . . Delictual claims are, for example, frequently the subject of a compromise. Nor need the claim be even prima facie actionable in law. A valid compromise may be entered into to avoid even a clearly spurious claim, and defendants frequently, for various reasons, settle claims which they know or believe the plaintiff will not succeed in enforcing by action.

An agreement of compromise, in the absence of an express or implied reservation of the right to proceed on the original cause of action, bars the bringing of proceedings based on such original cause of action.”

(See also Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others 1978 (1) SA 914 (A) at 921)

[7] The defence of the respondent is that the settlement agreement should be read with the initial agreement and that both should be declared unlawful and set aside under the National Credit Act (NCA) for various alleged non-compliances with the NCA.

[8] Even if the NCA applied - and this is disputed by the applicant – it is not the initial agreement that is pursued but the compromise. There is thus no basis for compliance with the NCA to be exacted.

[9] Ms Steenkamp, on behalf of the respondent, relied on the assertion that the respondent did not understand herself to be signing the settlement agreement in her personal capacity. This assertion was not strongly made but I will nonetheless deal with it. The structure of the agreement is simple and clear and it leaves no doubt that there could have been the misunderstanding contended for by the repondent. The signature page of the agreement, leaves no room for any doubt in respect of whom the respondent signed in relation to all the parties to the agreement. She signed the agreement 3 times and on each occasion next to a designation clearly indicated in respect of each party – including herself. What is more, the respondent emerges from the papers as an astute and experienced businesswoman. She is director of 9 companies and 5 close corportations and owns immovable properties in her own right and through her membership of 3 close corporations . Her assertion that she did not fully understand that she was signing the settlement agreement on her own behalf is poorly made out and, in any event, bears little scrutiny.

[10] The general rule in dealing with disputes in application proceedings is that final relief may be granted only if the facts as stated by the respondent seen, together with the admitted facts in the applicant’s affidavit, justify the granting of such relief The general rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) is that final relief may be granted only if the facts as stated by the respondents, together with the admitted facts in the applicant’s

affidavit, justify the granting of such relief. However, if the court finds the version of the respondent to be fanciful and untenable, then it may be rejected on the papers by adopting a robust, common-sense approach. (see: Soffiantini v Mould 1956 (4) SA 150 (E) ; Truth Verification Testing Centre CC v PSE Truth Detection CC 1998 2 SA 689 (W), at 699F–G. See also NDPP v Geyser [2008] ZASCA 15 (25 March 2008), at para 11).

[11] This version of the respondent in relation to her knowledge of the nature and import of the agreement is rejected.

[12] In the circumstances I find that the respondent has not made out a defence to the applicant’s claim or at least one which is sustainable.

I thus make the following order:

The respondent is to pay the applicant the sum of R4 300 000.

The respondent is to pay interest on this amount at the rate of 9% per annum from date of judgment to date of payment.

The respondent is to pay the costs of the application.

__________________________________________

D FISHER

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Date of Hearing: 10 March 2017

Judgment Delivered: 30 March 2017

APPEARANCES:

For the Applicant: Adv D Vetten instructed by Shaheed Dollie inc

For the Respondent: Adv A Steenkamp instructed by BMV Attorneys.