CIV/APN/274/88
IN THE HIGH COURT OF LESOTHO
In the matter between:
" MIDMACOR (PTY) LIMITED Intervening Applicant
vs
ZAKHURA BROTHERS (PTY) LIMITED 1st Respondent
JAAME (PTY) LIMITED 2nd Respondent
DAWOOD KADWA 3rd Respondent -
ESSOP KOLIA 4th Respondent
DEPUTY SHERIFF 5th Respondent
CIV/APN/256/89
And in the matter between
MIDMACOR (PTY) LIMITED Applicant
ZAKHURA BROTHERS (PTY) LIMITED Respondent
Before the Honourable Chief Justice B.P. Cullinari
For Midmacor (Pty) Ltd : Mr J. Kambule
Mr S.A. Redelinghuys For Zakhura Brothers (pty) Ltd : Mr K.K. Mohau
JUDGMENT
Cases referred to:
Plascon - Evans Paints vs Van Riebeeck Paints (1984) 3 S.A. 623 (A);
Florio vs Minister of Interior & Chieftainship Affairs & Another C of A (civ) Nos.29 of 1991 and 2 of 1992, Unreported;
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Clifford vs Farinha (1988) 4 S.A. 315 (W);
Mlombo vs Fourie (1964) 3 S.A. 350 (T).
The applicant company ("Midmacor"), registered in the Republic of South Africa, with its principal place of business in
Johannesburg, seeks an order directing the first respondent company ("Zakhura Ltd") to release certain machinery to it, namely one 31 KVA generator set complete and one 50 KVA generator set complete.
Much of the evidence before the court is contained in the first entitled application above (CIV/APN/274/88) , wherein Zakhura Ltd was the applicant, and Midmacor sought leave to intervene. Jakhura Ltd has withdrawn its application in that matter, but nonetheless reliance is placed by it on the papers in the Court file.
The evidence for Midmacor, supplied in two affidavits by its Sales Manager, David Herward Pretorious, is briefly that, commencing on 8th September, 1988 Midmacor hired two Generator Sets complete to Jaame Foods (Pty) Limited ("Jaame"), another . company registered in South Africa, with its principal place of business at Fordsburg, the machinery being destined for use in Lesotho. Mr Pretorius deposed that the Generator Sets complete were valued at R25,032.00 (31 KVA) and R33,100.00 (50 KVA), a total of R58,132.00.
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Meanwhile, as Alley Zakhura, a Director of Zakhura Ltd deposed, on a about 5th September, 1988 Zakhura Ltd, represented by the deponent, had sold and delivered to Jaame some 15,000 cases of soft drinks for the sum of M237,000.00 payment being effected by cheque. Jaame was represented in the transaction by Dawood Kadwa and Essop Kolia. The cheque was however dishonoured. Alley Zakhura confronted Dawood Kadwa and Essop Kolia, then in Maseru, according to him, Dawood Kadwa and Essop Kolia.
"then undertook to see to Applicant's (Zakhura Ltd) payment on the next day. They also left with me two electric generators which according to them belong to (Jaame) as an assurance that indeed (Zakhura Ltd) would be paid as promised. I verily over that these generators are worth about M20,000.00 and are still in my custody.
I verily over that (Danwood Kadwa & Essop Kolia ) made the said undertaking in the presence of the Lesotho Police namely one
Lieutenant Lesiame whom they had invited to imediate. And indeed it was in the presence of the said Police Officer that (Dawood Kadwa & Essop Kolia) decided to leave in my custody the said generators."
Thereafter, Alley Zakhura depossed, Jaame did not effect payment to Zakhura Ltd. He telephoned the offices of Jaame & spoke to Dawood Kadwa who informed him that Jaame was "no longer
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willing to pay for the said drinks as agreed or at all and that he (Dawood Kadwa) was going to fetch from me the said generators". Indeed, Alley Zakhura deposed that he thereafter received a letter from Jaame's bankers in Bloemfontein, informing him that Jaame had stopped payment on the cheque for M237, 000.00.
Those averments were contained in an affidavit ,sworn by Alley Zakhura. grounding an application by Zakhura Ltd, to this Court, on 20th September, 1988, for attachment of the generators in Alley Zakhura' s custody ad fundandam jurisdictionem. Jaame, Dawood Kadwa, Essop Kolia and the Deputy Sheriff were acted as first, second, third and fourth respondents respectively to the application. Alley Zakhura deposed that Zakhura Ltd, had a genuine cause of action, which would be frustrated if the generators were to be removed from the jurisdiction, regard being had to the fact that the first three respondents were peregrini. The application sought an order in the form of a rule nisi calling upon the respondents to show cause inter alia why,
"(a) An order of attachment of certain two electric generators presently in the custody of Alley Zakhura shall not be made to found and/or confirm jurisdiction pending the outcome of an action for damages to be instituted by Applicant (Zakhura Ltd) in the High Court of Lesotho.
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The said generators shall not be placed in the custody of the Sheriff of the High Court of Lesotho or his lawful deputy, pending the outcome of the said action" (Italics added)
A rule nisi in those terms vernation, inter alia, was issued by the Court on 21st September, 1988. It was extended on 28th October to 17th November, 1988. It lapsed on the latter date, apparently because the court file could not be found, but was subsequently extended to 17th March, 1989, when the rule lapsed. The order granting the rule, however, was expressed to take immediate effect, as an interim order, under paragraphs (a) & (b) reproduced above. That being the case the order that the generators be attached and "placed in the custody of the Sheriff .... or his lawful deputy" was effective from 21st September to 17th March, 1989, a period of six months.
Meanwhile, on 17th February, 1989, Midmacor had filed a notice of intervention, as intervening applicant, in the proceedings instituted by Zakhura Ltd (CIV/APN/274/88). Zakhura Ltd, Jaame, Dawood Kadwa, Essop Kolia and the Deputy Sheriff were . cited as respondents that is, the first to the fifth respondents respectively, by Midmacor. Midmacor sought an order inter alia in the following terms:
"1. That the Applicant (Midmacor) be granted leave to intervene in the application number CIV/APN/274/88 in
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which Zakhura Brothers (pty) Ltd claims attachment of the machinery in the prossession of Jamee Foods (Pty) Ltd and others:
That the machinery be released to the Applicant forthwith."
The application for intervention was supported by an affidavit sworn by David Pretorius, deposing to ownership by Midmacor of the generators in the possession of Zakhura Ltd. Alley Zakhura filed an opposing affidavit deposing that the machinery belonged to Jaame. David Pretorius then filed a replying affidavit supported by affidavits from Ilabal Adam Kolia, Jaame's former Managing Director, and Essop Kolia, was not owned by Jaame but had been hired by it from Midmacor.
Then on 6th October, 1989, a further application (CIV/APN/256/89) was brought by Midmacor, acting Zakhura Ltd as sole respondent. The notice of motion sought an order inter alia
"(a) Directing the Respondent to release to the Applicant certain generators described as 31 KVA generator set complete and one (l) 50 KVH generator set bearing the units numbers 366 and 378 respectively;
... declaring the Order obtained at the instance of Respondent against Jaame Foods (pty) Limited, Dawood
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Kadwa, Essop Kolia and the Deputy Sheriff on the 21st August, 1988 be declared void on the basis that it has lapsed;"
I consider that the two serial numbers above constitute, as will be seen, a typographical error, as is the case with the date of the order referred to, the correct date being 21st September, 1988. In any event, the application was grounded by an affidavit by a member of the firm of Attornies representing Midmacor, which firm has since withdrawn. The particular Attorney deposed that he had
"discovered that the Order which was obtained by the Respondent has not been executed and the generators are still in the
Respondent's custody contrary to the Order."
The Attorney also deposed that Jakhura Ltd had not issued summons in the action contemplated in the affidavit grounding the application for attachment. The Attorney annexed to his affidavit a letter written by the firm to the Attornies of Zakhura Ltd on 29th May, 1989, expressing surprise that "the said generators are still in the custody of your client in defiance of their own Court Order." The Attornies of Zakhura Ltd. replied on 12th August, 1989 stating that "We are urgently contacting client on the matter and shall revert to you soonest."
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The Attorney' s affidavit drew an opposing affidavit from the Counsel then represeting Zakhura Ltd., who has also withdrawn from these proceedings. He deposed inter alia that his instructing Attornies had informed him that "as far as they are concerned the order (of 2lst September, 1988") has been complied with." He also deposed that a summons had not been issued by Zakhura Ltd. because that company "and Jaame Foods who (are) the owners of the machinery, are. in"-the" process of setting the matter." so much so that" it might not even be necessary to issue the summons as initially anticipated."
Midmacor' s Attorney had deposed that the machinery to be attached under the Courts order "belong to the Applicant", but he added, "as will more fully appear in the affidavit (s) in support of the said application" (for interventions); he subsequently submitted that, on the basis of such affidavits, Midmacor "has shown a clear right to the said generators" . That . drew a response from Counsel for Zakhura Ltd., namely, "to state most emphatically that the machineries do not belong to applicant" (Midmacor), again, as reproduced above, that Jaame were "the owners of the machinery", and again, "I wish to reiterate that these machines belong to Jaame Food and not to Applicant." The best that can be said of Counsel's averments as to the ownership of the machinery, stated in the form in which they were made, is that they were completely hearsay.
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In any event, that was on nth December, 1989, and it seems tha the averments as to settlement were supported by a latter dated 23rd October, 1989, subsequently annexed to an affidavit by Alley Zakhura on 4th September, 1992. : that letter was written by a firm of Attornies in Durban, apparently on behalf of Jaame. The writer indicated that he had had "an opportunity once again to discuss (this matter with some members of Jaame. He continued,
"I have been given (an) indication by Jaame members that they are prepared to settle this matter on the basis that you receive
R20,000.00 plus all legal costs incurred by you and the return of the generators to Jaame."
On 22nd November, 1990 the Attornies of Zakhura Ltd wrote to Midmacor's Attornies in part as follows:
"We wish to advise that this matter has as indicated been settled in part by the parties. The settlement entails inter alia payment of M20,000.00 by Jamtnee Foods (Pty) Ltd in part payment of the amount owing and a release of the two generators to Jamme Foods.
We advice further that pursuant to the settlement negotiations mentioned herein and earlier in our papers, Jaames Foods has paid the M20,.000.00 to our client who has in turn released the generators to Jaame Foods.
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In the premises we feel that it does not serve any purpose to proceed with either the main and/or the ancillary application and we intend withdrawing our application." (Italics added)
The Attornies of Zakhura Ltd on 30th July, 1992 sent a copy of that letter to Midmacor's present Attornies. On 6th August, 1992 Midmacor filed a third application, that is, in the attachment and intervention proceedings CIV/APN/274/88. The notice of motion sought an order of committal of Alley Zakhura for contempt of court and order that a "31 KVA Generator Set Unit no.636 PH 9134 and certain 50 KVA Generator Set Unit No 678 PH 9145" be produced before the Court. The application for committal for contempt is not now being pursued by Midmacor.
Zakhura Ltd served notice of withdrawal of its application for attachment on 10th August, 1992. Mr Mohau submits that Midmacor's application for intervention must therefore fall away. I do not see that is necessarily the case as the intervening applicant, seeking intervention as an applicant would (if leave is granted) stand in the shoes of the original applicant, who in any event in the present case has been cited by Midmacor as first respondent. To look at it in another way, Midmacor has instituted an application, the effect of which would be to substitute a fresh application for the old, but nonetheless utilising the papers in the latter application: the initiative lies with the intervening applicant and I do not see that his application,
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which must be considered by the Court, can be defeated by the mere withdrawal of the original application.
But in any event, those issues are academic, because in both proceedings, that is, CIV/APN/274/88 and CIV/APN/256/89. Midmacor seeks the same order, namely the release to Midmacor of the machinery in question, so that I see no need to consider the aspect of intervention.
The first issue therefore is the identification of the machinery in question. David Pretorius alleges that the machinery in the possession of Zakhura Ltd is that which Midmacor hired to Jaame. He annexed to his intervening affidavit two plant hire agreements, numbered "PH. 9134" and "PH. 9145" respectively, between Induna Plant Hire, under which name Midmacor trades, and Jaame one dated 8th September and the other 9th September, 1988. The "Schedule of Plant and Accessories" on each agreement reads "31 KVA Generator set Complete" and "50 KVA Generator Set Complete", respectively. The "Estimated Duration of Hire Period" on each document is expressed to be, "From: 10/9/88 to: 1 Week, Location of Site: Lesotho." The "Unit No," is stated respectively to be 636 and 678.
David Pretorius also annexed four invoices in respect of each agreement, covering the months of September, October, November and December, 1988. Thenin the machinery is identified by reference to "Unit no 636 PH 9134" and "Unit no 678 PH 9145"
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respectively. The references "PH 9134" and "PH 9145" can only constitute a,reference to the particular Plant Hire agreements so numbered above. One of the eight invoices, namely that for the 50 KVA generator Set for the month of October, 1988, carries a reference to "PH 9148", but in the light of all the material before the Court I consider the number to represent a typographical error, and that the number should have read 9145. In any event, it is clear from the documents annexed, that the 31 KVA Generator Set complete and the 50 KVA Generator Set complete were numbered 636 and 678 respectiely. david Pretorious . deposed that "the machinery bears the isignia and signs of the Itervening Applicant." He subsequently deposed in a replying affidavit that the Unit numbers were "painted on each component of the aforesaid machinery" and that the machinery bore stickers bearing the name of "Induna Plant Hire".
Alley Zakhura filed an opposing affidavit on 14th March, 1989, when it came to the first none paragraphs of David Pretorious' affidavit, which contained purely formal matters as to the parties involved and the Courts jurisdiction, one might have expected an admission, or at worst an averment in reply putting the deponent to proof: instead Alley Zakhura averned "Save to aver the Deponent's assertion (sic) can not be true nor correct, I admit contents hereof".
Thereafter Alley Zakhura attached David Pretorius' averments as to the fire agreements between Midmacor and Jaame.
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Thereafter Alley Zakhura attached David Pretorius' averments as to the fire agreements between Midmacor and Jaame. He averred that there, was nothing to connect the machinery referred to in the annexurea supplied, with those "under attachment"; he pointed out that in the two Plant Hire Agreement "the serial numbers have been convencently ommitted." But that was clearly not the case.
Then Alley Zakhura observed that the annexures supplied, "if they are to be believed," clearly " prove that the machines
mentioned therein "can not be the ones under attachment" as the invoices were "entered into long after the machines were attached." But as David Pretorius deposed in a replying affidavit (the agreements having been entered into twelve and
thirteen days before the order of attachment) the invoices were necessarily subsequently dated each month thereafter.
Then again Alley Zakhura, in what is plainly a reckless averment, deposed that the conditions printed on the back of the two " Plant Hire" agreements were not conditions of hire, but conditions of sale. Suffice it to say that I consider it obvious to the most unsophisticated of business men that the conditions are those of hire and not of sale.
Alley Zakhura then avers that Midmacor had not supplied any proof of ownership as to the machinery involved. David Pretorious deposed
however that "the machinery is the property
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of the Intervening Applicant." In a replying affidavit he deposed that there are no documents of ownership, as Midmacor had simply purchased the machinery. It may be that such purchase could, be nonetheless supported in some faslicon. But I do not consider that that is necessary: there are the averments of David Pretorious in the matter: they stand uncontradicted. As and when Midmacor possessed the machinery, rebuttable presumption of ownership existed. The papers placed before the Court reveal that, as to Midmacor's machinery. Jaame or Zakhura Ltd obtained no more than a ius possessionis. Zakhura Ltd on Alley Zakhura's averments, retains no ius possidendi in the machinery attached. As I see it, Midmacor's claim to ownership has not been rebutted in any way, that is as to the machinery hired out to Jaame,
The question is whether that machinery is the same as that attached. Alley Zakhura claims to some knowledge of machinery when he 'deposed that "there are several 50 and 30 KVA (sic) machines which can only be identified properly by the use of their respective serial numbers". It is extraordinary therefore that throughout all of the papers filed by Zakhura Ltd there is no attempt made to render the serial numbers or the electrical capacity of the machinery in its possession: there is no more position identification suppllied than that contained in the words of the Court's order of attachment, namely, "certain two electric generators." What could be simplier than for Alley Zakhura to depose as to the electrical capacity, the serial numbers and any idenfying marks or signs to be found on the
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machinery attached? He alleges that the serial numbers were "conveniently committed" from Midmacor's documents of hire. That allegation was so recklessly incorrect, as to raise the inference that such allegation conveniently avoided the necessity of comparing such serial numbers with those to be found or the machinery attached. Furtuned it raises the inference that the latter serial numbers were "conveniently ommitted" from the papers filed by Zakhura Ltd in seeking an order of attachment.
Alley Zakhura also deposed:
"I aver that the machines belong to the Second Respondent (Jaame) . This is even more so regard being had to the fact that it is now the 6th month since the machines were attached and removed from the 2nd Respondent and the Second Respondent has not disclaimed the machines".
'That passage suggests, that the machinery was "removed from Jaame after attachment, but that was clearly not the case. Secondly it was Alley Zakhura's evidence that Jaame's agents, namely Dawood Kadwa and Essop Kolia, had voluntarily handed over the machinery to him. Why then did he subsequently speak of the machinery being "removed from" Jaame?
I shall return to that aspect in a moment. Meanwhile I observe that it is more likely that Jaame would have claimed the machinery as theirs, during a six months period, rather than they
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would have disclaimed it if it was not their property. In brief, Jaame would have been more likely to display interest in the machinery if it had been its property.
In this respect, David Pretorius deposed that when Jaame failed to return the two generators hired, as a result of investigations he conducted, he had ultimately approached the premises of Zakhura Ltd in Mafeteng. David Pretorius continued:
"I ... spoke to one Zakhura who confirmed that he had custody of the machinery but that it was under shelter and in a safe place. I enquired from him on what basis he was holding the Intervening Applicant's machinery and he indicated to me that he had a claim against the Second Respondent {Jaame) and had accordingly attached the machinery. I advised him it was not the Second Respondent's
property and he agreed that if he received payment of the sum of R5 000.00 (five thousand rand) for his claim, he would release the machinery."
In answer thereto Alley Zakhura deposed,
"I deny contents hereof and put Deponent to the proof thereof. I aver that ZAKHURA in but a surname of many people working in First Respondent's (Zakhura Ltd) various concerns. I have in any event asked all Directors of and Shareholders in First Respondent and they have informed me
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and I varily believe that they have never discussed the question of the machines with the Deponent as alleged or at all. In any event such a discussion would have been irrelevant."
I fail to see how any such discussion could possibly have been irrelevant. In any event, David Pretorius' averments, in their detail, seem to me to have a ring of truth about them. What the other directors and shareholders of Zakhura Ltd said is of course hearsay. In this respect Alley Zakhura contented himself with a denial of David Pretorius' averments: he did not specifically depose, as I consider he should have done, that he himself and not spoken to David Pretorius. However, I do not see that it is necessary to decide the issue.
It will be recalled that in his affidavit grounding the application for attachment, Alley Zakhura laid stress upon the fact that the generators had been X voluntarily handed over to him by Danwood Kadwa & Essop Kolia, indeed in the presence of a police officer, Lt Lesiame. My reaction to the latter averment was that it was unnecessary, as it was sufficient for Alley zakhura simply to aver that Jaame's agents had handed over to him the two generators, the property of Jaame, as a form of security. Suffice it to say that the details as to voluntainers put me on enquiry. Indeed, in spite of such alleged voluntariness, we have Alley Zakhura's own evidence that but a few days later Dawood Kadwa informed him that he was "going to fetch from me the said
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generators."
In this respect, David Pretorius annexed two further affidavits to his replying affidavit, one from Ikbal Adam Kolia the former Managing Director of Jaame and the other from Essop Kolia, David Pretorious (based in Johannesburg) deposed that he had been unable to obtain an affidavit from Dawood Kadwa as the latter was in Durban and he had not been able to communicate with him: I observe, incidentally, that the letter of 23rd October, 1989 addressed by the Durban - based Attornies to Zakhura Ltd. is copied to Jaame at a Durban address, so tht presumably Dawood Kadwa was wither temporarily or permanetly based in Durban. In any event, Ikbal Kolia deposed that he had been the Managing Director of Jaame "during September 1988 until I resigned on 15th December, 1988". He confirmed the contents of David Pretorius' founding and replying affidavits insofar as they related to Jaame. He continued
"In addition, I confirm that the machinery does not belong to the Second Respondent (Jaame) and was hired, by it from the
Intervening Applicant. In fact the machinery was taken by force from the possession of the "Second Respondent by the First Applicant (sic) representatives."
The reference to the "first Applicant", in the intervention proceedings can only have been intended as a reference to the "First Respondent", namely Zakhura Ltd. It was Alley Zakhura's
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evidence that he had dealt with Dawood Kodwa and Essop Kolia as Jaame's "lawfully authorised agents." Ikbal Kolia deposed that the facts in his affidavit "are within my own personal knowledge". But whether or not his averment as to force having been used by the representatives of Zakhura is hearsay, the point is that he deposed that the machinery in the posssession of Alley Zakhura was not the property of Jaame, but had been hired by it from Midmacor.
Essop Kolia in turn confirmed the contents of David Pretorius' affidavits insofar as they related to Jaame. He added that he confirmed that "the machinery does not belong to the Second Respondent (Jaame) and was hired by it from the Intervening Applicant."
Ikbal Kolia may not have any connection with Jaame now: I cannot say; but the point is that he was the chief executive of Jaame at the relevant time. Further, inasmuch as Alley Zakhura acknowledged Essop Kolia as a "lawfully authorized agent of Jaame he is faced with an affidavit from the latter individual which supports Manmacor's claim.
Suffice it to say therefore, in all the circumstances that I am satisfied that the two generators which were attached by order of this Court are those hired to Jaame by Midmacor, and Zakhura Ltd, had therefore no right to seek such order of attachment in respect thereof. That order in any event lapsed
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on 17th March, 1989, and I see no need therefore to consider its validity or otherwise.
In the affidavit which he filed in the contempt proceedings, Alley Zakhura deposed that the Court's order of 21st September, 1988, did not say I should place the machines in the hands of the Deputy Sheriff: "he understood that the latter would" take control and custody of the machinery, " at the expense Of the unsuccessful party. It will be seen however that in his affidavit of 14th March, 1989, opposing intervention by Midmacor, he never refers to the machinery as being in his custody, or that of Zakhura Ltd, but as being "under attachment", which suggests that he wished to conceal the identity of the custodian.
In any event as I see it,
Thereafter it mattered not whether the Deputy Sheriff approached Alley Zakhura and conveyed the machinery from where it lay, or whether Alley Zakhura had the machinery conveyed to the Deputy Sheriff. In either event, Alley Zakhura was obliged to deliver up the machinery to, or hand it over to, or place it in the custody of the Deputy Sheriff. The point is that the onus of placing the machinery in the Deputy Sheriff's custody fell upon him who possessed it and retained the ius possessionis.
Alley Zakhura deposed that "neither the Sheriff nor his deputy came to collect the machines yet he was aware of the order
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as he signed same. "There is there no mention of service as such, nor indeed as to who signed the order, the Sheriff or his deputy. The Registrar signed the order: he however did so in his capacity as Registar and that signature cannot relieve the necessity for service as such. In any event, if it is the case that either the Sheriff or his Deputy was served with a copy of the Court's order, and did not approach Alley Zakhura, it was clearly the latter's duty to approach either officer and in the least, to arrange for the collection of the machinery by that officer.
When the Court granted the order of 21st September, 1988, it also ordered, as an interior order with immediate effect, that Jaame, Dawood Kadwa and Essop Kolia be served by edictal citation. Alley Zakhura had had no difficulty, on his own averments, in contacting the respondents by telephone, nor indeed their bankers, nor their Attornies. Yet the rule nisi was continually extended for a period of six months, presumably because service had not been effected. Alley Zakhura deposed that there was no need to extend the rule (after 17th March, 1989) in view of the "negotiations and payments" as reflected in the letter from Jaame's Attornies. But that letter is dated a further seven months later, on 23rd October, 1989, and indicates that negotiations had not been completed. The latter aspect again emerges from the affidavit sworn by Counsel for Zakhura Ltd. on 11th December, 1989. Despite the fact that the order had lapsed some nine months earlier, he deposed that "the order is
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still meaningful." The impression created. therefore is that Zakhura Ltd sought a Court order which it had no intention of ultimately implementing, that is, that part thereof concerning custody of the machinery, it being advantageous to retain such custody itself.
When it comes to the release of the machinery to Jaame, there is the letter of the Attornies of Zakhura Ltd, in the matter, dated 22nd November, 1990, but that of course does not constitute evidence. When it comes to evidence in the matter. Alley Zakhura, in his affidavit in the contempt proceedings, at first does no more than refer to the statement of release contained in the said letter. That again does not constitute evidence of such release. The nearest that Alley Zakhura gets to such aspect is in the following subsequent passage in the said affidavit:
".... Jaame Foods through their Attorneys as appear in Annexure "c" herein (the letter from the Durban - based Attornies), initiated settlement negotiations which resulted in the lapsing of the Rule and Zakhura Brothers releasing of the machines upon receipt of its part payment as appears in Annexure "A" herein (letter from Attornies of Zakhura Ltd to Midmacor's Attornies on 22nd November, 1990)" (Italics Added)
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There is no doubt a positive statement there of the "releasing of the machines" by Zalchura Ltd. There is also the cross reference to the Attornies' letter. But in the circumstances I would have expected more. I would have expected
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Alley Zakhura to positively depose to the handing over of the two generators, supplying the names of those physically effecting and receiving the transfer of the machinery, and the date and location of such transfer. Instead of that we have the request of averments, unsupported as they are by any averment, or even documentary receipt, in the matter from Jaame.
The evidence for Zakhura, in that vague and unsatisfactory form, in that somewhere between 23rd October, 1989, the date of the letter from Jaame's Attornies, and 22nd November, 1990, the date of the letter from the Attornies of Zakhura Ltd. to those of Midmacor, the two generators were released to Jaame. The averments by the Counsel for Zakhura Ltd on llth December, 1989 as to continuing negotiations, namely
"that the negotiations between Attorneys for Applicant (a typographical error for 'Respondent') and those of Jaame Foods are
now at an advanced stage towards a settlement of the matter....."
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Indicates that the machinery at that stage was still in the custody of Zakhura Ltd. Thereafter, despite the application for intervention and release of the generators by Midmacor, in spite of the two affidavits by David Pretorius, in spite of the affidavits from Ikbal Kolia and Eesop Kolia concerning that Jaame had but hired the generators, in spite of the further application by Midmacor on 6th October, 1989, for the release to it of the generators, in spite of the whole question of the ownership and custody Of the generators being sub judice, Zakhura Ltd allegedly entered into negotiations with a perearinus company fo the release to it of the generators and , thereafter Zakhura Ltd allegedly gave effect to such release. If that is the case, that I have little hesitation is saying that such conduct, on the part of Zakhura Ltd, snacks of contempt, though in the absence of any specific charge I would make no finding of contempt. In the lease, however, if it is the case that the generators have been handed over to Jaame, then Zakhura Ltd has clearly acted mala fide in the matter.
The point is, adopting the "rebust approach" (see the case of Plascon - Evans Paints vs Van Riebeeck Paints (1) per Corbeth J.A. (as he then was) at pp 634/635, quoted with approval . by Steyn J.A. in the case of Florio vs Minister of Interior & another (2) pp 40 (41) , that I find that Alley Zakhura's affidavits are so laced with equivocation and half truths as to
be, in the light of all the evidence before me, unreliable. I am not satisfied accordingly that the generators have been handed over to Jaame. The resulting position in therefore that Zakhura Ltd acted mala fide if it is the case that the generators were handed over to Jaame. If that is not the case, as I suspect that it probably is not, then the information supplied by Zakhura Ltd to its Attornies is false. Alley Zakhura's affidavit in the matter is false and Zakhura Ltd is still scting mala fide therefore. In any event, even if the generators have been disposed of, the re: vindicatio still lies, as it is only necessary for Midmacor to prove that the generator were in the custody of Zakhura Ltd. when Midmacor first sought their release (see e.g. Clifford vs Farinha (3) at p 319) .
If it is the case however, that Zakhura Ltd has disposed of the generators, either to Jaame or another party, it has, as I previously observed done so mala fide. Under those circumstances Zakhura Ltd may be ordered to make good the value of the generator as at the date that Midmacor instituted its application for intervention and release of the generators (see e.g. Mlombo vs Pourie (4) at p 358) . There may be an intermediate situation where the generators, when produced to Midmacor, are in a deteriorated condition: in such case it would clearly be in the interests of justice that the Court order Zakhura Ltd. to make good the loss in value caused by such deterioration.
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I appreciate that there are no pleadings to such effect. I saw no need for any amendment to the motions brought by Midmacor, however, as they included a. prayer for "further and/or alternative relief". As to the value of the generators there is no more than the averment of David pretorius in the matter and also that of Alley Zakhura. The matter would need be fully convasaed and in default of agreement be assessed by the Court after hearing evidence. The same would apply to the aspect of deterioration of the generators.
I make the following order therefore:
(a) Zakhura Brothers (Pty) Limited is hereby ordered to release to Midmacor (Pty) Limited a 31 KVA Generator Set complete bearing the Unit Number 636, and a 50 KVA Generator set complete bearing the Unit Number 678;
Zakhura Brothers (Pty) Limited shall pay to Midmacor (Pty) Limited the equivalent in money of any reduction in the value of the said machinery, calculated by comparing the value of the said machinery on the date of such release with the value on the 17th February, 1989.
In the event of Zakhura Brothers (Pty) Limited failing to so release the said machinery, it shall pay to Midmacor (pty) Limited the equivalent in money of the value of the
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said machinery as at 17th February, 1989.
In default of agreement by the parties, the valuations required under paragraphs 1 (b) and 2 above shall be assessed by the court.
I grant costs in both proceedings CIV/APN/274/88 and CIV/APN/256/89 to Midmacor (pty) Limited. In the case of the proceedings in respect of the application for committal for contempt (CIV/APN/274/88), however, I order that each party pay his own costs.
Date This 23rd Day of June, 1995.
B.P. CULLINAN
CHIEF JUSTICE
