Zamalwandle Transport Logistics (Pty) Limited v Azania Infracon (Pty) Limited (45087/2016) [2018] ZAGPJHC 425 (12 June 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER: 45087/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

ZAMALWANDLE TRANSPORT LOGISTICS (PTY) LIMITED Applicant

and

AZANIA INFRACON (PTY) LIMITED Respondent

JUDGMENT

YACOOB, AJ:

1 This is an application to interdict the respondent from making payment out of proceeds of a joint venture between the applicant and respondent without the applicant’s written consent, and to direct the respondent to open a bank account in the name of the joint venture, deliver a statement of account to the applicant of monies received and expended on behalf of the joint venture and to deliver copies of the statements of the bank account into which the joint venture funds were paid.

2 The applicant alleges that the respondent and applicant entered into an oral joint venture agreement, and that the joint venture was to supply coal to the Gauteng Department of Infrastructure Development.

3 The respondent admits that a joint venture agreement was negotiated between the parties but denies that it was concluded. In particular, agreement on the terms of the joint venture is denied. The respondent also denies that the applicant has contributed to the joint venture agreement, which it contends the applicant would have been obliged to do.

4 There are various indications on the papers that both parties considered there to be a joint venture agreement between them. However there is not sufficient proof of the terms of the agreement.

5 The applicant in its heads of argument submitted that it was appropriate to refer the matter to trial, and at the same time to make an order interdicting payment by the respondent out of joint venture funds, pending determination of the trial proceedings.

6 Although the respondent submitted that the application should instead be dismissed, these submissions were somewhat equivocal. The respondent’s counsel more than once suggested to the Court that an issue that was perplexing could be dealt with at the trial.

7 I am satisfied that the requirements for referring a matter to trial, which were extensively canvassed in counsel’s heads of argument and orally at the hearing of the matter, are fulfilled.

8 The only issue remaining to deal with in this judgment is whether the applicant has fulfilled the requirements for an interdict.

9 The applicant for an interim interdict must prove that it has a prima facie right worthy of protection; that there is a reasonable apprehension of irreparable harm; that there is no alternative remedy, and that the balance of convenience favours it.

10 Assuming in the applicant’s favour that it has proved, at least prima facie, that it has a right worthy of protection, I am not convinced that the remaining requirements for an interim interdict have been fulfilled.

11 The apprehension of harm alleged by the applicant is that the joint venture’s funds will be disbursed by the respondent without the applicant’s knowledge or consent. However, even if this is so, it is not clear to me how this harms the applicant. The applicant makes no allegation to the effect that the respondent will not be able to make good any funds to which the applicant may prove it is entitled.

12 Similarly, the applicant alleges that there is no alternative remedy available to it because there is no alternative means of preventing the respondent from transferring the joint venture’s funds without the applicant’s consent. I reject this contention for the same reason as in the paragraph above. The obvious alternative remedy is to sue the respondent for any payment due to the applicant, and there is no allegation that that would not provide an adequate alternative remedy, nor is there any other basis on which to conclude that it would not.

13 For these reasons too, I am not convinced that the balance of convenience favours the applicant.

14 The applicant contends that costs ought to be reserved for determination by the trial court on the basis that the disputes of fact raised by the respondent could not have been foreseen. I disagree. In my view the conduct of the respondent, while not entirely inconsistent with the existence of the agreement, does disclose sufficient indication that there may well have been a dispute of fact between the parties.

15 For these reasons, I make the following order:

[1] The matter is referred to trial in terms of rule 6(5)(g).

[2] The notice of motion shall stand as a simple summons and the answering affidavit as a notice of intention to defend.

[3] The declaration shall be delivered within twenty days.

[4] The Uniform Rules of Court dealing with further pleadings, discovery and conduct of trials shall thereafter apply.

[5] The applicant is to pay the costs of the application.

________________________________

S YACOOB

ACTING JUDGE OF THE HIGH COURT

COUNSEL FOR APPLICANT: ADV NPG REDMAN SC

APPLICANT’S ATTORNEYS: LE ROUX VIVIER ATTORNEYS

COUNSEL FOR RESPONDENT: AJR BOOYSEN

RESPONDENT’S ATTORNEYS: DE KOOKER ATTORNEYS ℅ SMIT & GROVE ATTORNEYS

DATE OF HEARING: 06 JUNE 2018

DATE OF JUDGMENT: 12 JUNE 2018