Afric Oil (Pty) Ltd v Ramadaan Investments CC

• Jurisdiction: South Africa
• Judge: Moleko J
• Judgment Date: 13 January 2003
• Citation: 2004 (1) SA 35 (N)
• Docket Number: 2439/02
• Hearing Date: 25 November 2002
• Counsel: M A Chohan for the applicant. A Findlay SC for the respondent.
• Court: Natal Provincial Division

Moleko J:

The applicant applied for a provisional order for the winding-up of the respondent, a close D corporation. The applicant is a wholesale distributor of petroleum and related products.

Between September 2001 and January 2002 the applicant supplied the respondent with petroleum products. The applicant alleges that respondent is indebted to it in the sum of R2 449 018,91, being E the balance due to it. In negotiations for payment the applicant was represented mainly by Mr Laher, a member of its firm of attorneys, and the respondent was initially represented by one Mr Moola and later by its attorneys, Asmal & Asmal.

I do not intend going into the whole history and correspondence exchanged between the parties. I shall later refer to certain aspects F in the affidavits and correspondence in so far as they are relevant to the matters upon which I shall adjudicate.

At the commencement of the hearing of this application the respondent applied for the admission of a forth set of affidavits by Mr Moola and Mr Graham. The application was opposed by the applicant. After hearing argument I refused the application and my G reasons were to be furnished later. My reasons now follow.

The main reason advanced for seeking the admission of these affidavits by the respondent was that the applicant in its replying affidavit raised serious allegations which the respondent could not have foreseen at the time of delivery of the opposing affidavit. H

The issue in question related to negotiations between a Mr Nothnagel, financial director of the applicant, and one Mr Graham, representing the respondent. The respondent in its answering affidavit referred to and alleged that there had been a settlement between Mr Nothnagel and Mr Graham to the effect that the applicant would accept a supply guarantee bond from Provident Capital Indemnity for the sum of I R5 million in respect of supply of petroleum products to the respondent. Further, that Mr Nothnagel informed Mr Graham that applicant required weekly payments of a sum of R50 000 in repayment of the debt owing by the respondent to the applicant, referred to as the 'historical debt'. J

Moleko J

In support of its averments the respondent annexed a facsimile to A Mr Nothnagel, dated 14 August 2002, from Mr Graham confirming the settlement entered into, and also a guarantee by Provident Capital Indemnity Ltd.

The respondent in its answering affidavit further averred that the applicant accepted the guarantee offered by Mr Graham and that on 15 August 2002 the applicant agreed to accept a sum of R25 000 B per week offered by Mr Moola in a settlement of the historical debt.

The applicant in its replying affidavit by Mr Nothnagel, while accepting that there were negotiations between Mr Nothnagel and Mr Graham, denied that any agreement was reached. Applicant annexed to its replying affidavit a letter, dated 16 August 2002, written by respondent's attorneys to the applicant's attorneys setting out C the terms of the alleged agreement between Mr Moola and Mr Graham, representing the respondent, and Mr Nothnagel, representing the applicant.

Applicant's attorneys in reply in their letter dated 21 August 2002 and 23 August 2002, while accepting that there were discussions between the persons mentioned in the letter by D respondent, stated that applicant denied that any agreement had been reached regarding the payment of the historical debt or the guarantee. In addition applicant's attorney stated that applicant will not accept an offer by respondent to pay the debt by payments of R25 000 per week and further that applicant rejects the Provident Capital guarantee. There was also other correspondence in this regard E between applicant's attorney and respondent's attorney and Mr Graham marked annexures SN7, SN8, SN9, SN11 and SN12 to applicant's replying affidavit from which it is clear that applicant disputed that there was any agreement.

The affidavits sought to be admitted were filed at three o'clock on the afternoon of 22 November 2002 and served on applicant's F attorneys on the same date, together with respondent's heads of argument, which were due to be filed two days before that. The first four pages of Mr Graham's affidavit do not appear to have been signed by the commissioner of oaths. G

It was submitted by Mr Findlay, for the respondent, that the challenge to the letters written by Mr Graham and denial of the settlement arrangement could not have been anticipated by the respondent, particularly because it was entitled to assume that Mr Nothnagel would not deny under oath what was dealt with in the correspondence.

Mr Chohan submitted that the respondent cannot be H heard to say that he did not anticipate that Mr Nothnagel would deny that a settlement had been reached as this had been raised in the correspondence between the attorneys. He submitted that the attempt to bring in these affidavits is not bona fide; it is a dilatory tactic as respondent had throughout adopted such tactic. He submitted that applicant will suffer prejudice.

Normally in motion proceedings three sets of affidavits are allowed I and no further affidavits may be filed without leave of Court. Such leave is in the discretion of the Court and such discretion is to be exercised judicially upon consideration of the facts in each case.

In Herbstein and Van Winsen Civil Practice of the Supreme Court of South Africa at 359 it is stated that leave of Court will only be granted in J

Moleko J

special circumstances or if the Court considers such a course advisable. Special circumstances exist where something A unexpected or something new emerges from applicant's replying affidavit. There must be a satisfactory explanation which negatives mala fide as to the reason why the information was not placed before the court at an earlier stage.

The circumstances of this case as appear from the applicant's founding affidavit which are not seriously challenged by the respondent are that: B

1.

The negotiations between the parties about the payment of the debt alleged to be due to applicant by the respondent commenced on 22 February 2002. There was an exchange of several letters between the parties.

2.

These proceedings were commenced on 12 July 2002. C

3.

The respondent was to file its answering affidavit by 12 August 2002 but it was only filed on 27 August 2002.

4.

Applicant's replying affidavit was delivered on 13...