Du Preez and Another v NWK Limited and Another

• Jurisdiction: South Africa
• Judge: Mokgoatlheng, AJ
• Judgment Date: 23 June 2005
• Docket Number: 239/2005, 247/2005
• Court: Bophuthatswana High Court
• Hearing Date: 14 April 2005
• Citation: 2005 JDR 0940 (B)

Mokgoatlheng AJ:

Introduction:

[1]

On the 27th February 2005, Pieter Du Preez, the Applicant in case number 239/05 instituted an urgent application against ABSA Bank Limited the First Respondent and obtained a rule nisi against the First Respondent in the following terms:

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1.1

The First Respondent is prohibited from trading in, offering to trade in, exchange, sell, acquire, obtain or substitute the Applicant's four silo certificates under numbers 12062, 12063, 12065 and 12170 in favour of the First Respondent and trade therein, in any manner which shall be prejudicial to the Applicant;

1.2

The Second Respondent is prohibited to trade in the above described silo certificates in favour of the First Respondent, to issue or exchange the silo certificates in favour of the First Respondent, to deliver any grain in terms of the afore described silo certificates or to deal in the silo certificates in any manner prejudicial to the Applicant;

1.3

The First Respondent is ordered to deliver the above described silo certificates to the Second Respondent's Lichtenburg branch, to hold same and only to deal therewith on Applicant's instructions, alternatively to deliver same to A T Grain after payment of the full purchase price by A T Grain to the Applicant.

[2]

Beyplaas (Edms) Beperk, the Applicant in case number 247\2005 instituted an urgent application against NWK Limited the First Respondent and ABSA Bank Limited the Second Respondent. On the 1st March 2005 a rule nisi was granted against the First Respondent NWK Limited incorporating an interim interdict in terms whereof the First Respondent was ordered to hold and secure the silo

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certificates under numbers 769, 770 and 771 in safe custody pending the finalisation of this application.

[3]

The First Respondent was also ordered not to deal in, cancel, to exchange, or to utilize the silo certificates to deliver grain at the instance of any person.

[4]

On the 24th March 2005, the extended return date, ABSA Bank Limited the First Respondent in case number 239\2005 and the Second Respondent in case number 247\2005 opposed the confirmation of the rule nisi and the interdict respectively. ABSA Bank Limited was represented by advocate H van Eeden in both case number 239\2005 and 247\2005. Advocate G F Ackerman represented the Applicant Pieter Hendrick Du Preez in case number 239\2005. Advocate H Lever SC represented the Applicant Beyplaas (Edms) Bpk in case number 247\2005. NWK Beperk cited as the Second Respondent in case number 239\2005 and as the First Respondent in case number 247\2005 respectively, did not oppose the orders sought in the two applications. The Second Respondent ABSA Bank Limited instituted a counter application against the Applicants to transfer this matter to the Transvaal Provincial Division in terms of section 9 (1) of the Supreme Court Act No 59 of 1959.

[5]

In view of the fact that the genesis of the two cases arose out of a similar cause of action, counsel representing the Applicants and the Respondent agreed that it would be

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practical and convenient that the Applicants should first present their cases, and the Respondent ABSA Bank Limited to jointly respond thereto. This procedure was agreed to and adopted in order to obviate the necessity of the Respondent's counsel twice addressing and traversing the identical issues raised in both cases relating to the same cause of action.

[6]

The defence proffered by ABSA Bank Limited in both cases is premised on the same grounds. The salient issues raised by the Applicants and the cause of action in both cases are similar. The court for practical reasons has therefore decided to consider and adjudicate the two applications in a Joint judgment, with the relevant specificity and differentiation where necessary.

[7]

For convenience in this judgment Beyplaas (Edms) Bpk is referred to as the First Applicant, Pieter Du Preez is referred to as the Second Applicant, NWK Limited is referred to as the First Respondent, ABSA Bank Limited is referred to as the Second Respondent

[8]

The First Applicant is a private company incorporated in terms of laws of the Republic of South Africa with it's registered office situate at Lichtenburg. The principal objective of the Applicant is to conduct farming operations and to produce grain.

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[9]

The Second Applicant is an adult commercial farmer and business man residing at Manana Lichtenburg.

[10]

The First Respondent is a public company incorporated in terms of the laws of the Republic of South Africa with its registered office at Lichtenburg. The First Respondent's main objective is to deal in grain.

[11]

The Second Respondent is a public company and a registered commercial bank incorporated in terms of the laws of the Republic of South Africa with its registered office situated at 170 Main Street Johannesburg and has branch offices amongst others situated at Mellville Street Lichtenburg and University Street Mmabatho.

[12]

The Second Respondent opposes the confirmation of the rule nisi and the interim interdict issued in both applications respectively on the grounds that:

(a)

there is no verbal contract between the Applicants and the Second Respondent as alleged by the former.

(b)

as the Applicants' claims were in essence vindicatory, the Applicants bore the onus of proof that they were the lawful owners of the silo certificates,

(c)

even if the Applicants were declared the lawful owners of the silo certificates they were estopped to state that they are the lawful owners of the silo certificates as a result of

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the representations the Applicants made to the Second Respondent and the negligent manner in which the Applicants handled or dealt in the silo certificates.

[13]

The Second Respondent states that this case cannot be resolved without adducing viva voce evidence because of a dispute of fact. According to the Second Respondent the dispute of fact encompasses the following issues;

(a)

The contract of sale between the Applicants and A T Grain;

(b)

The contract of sale between the Second Respondent and Greater Grain;

(c)

The applications are akin to the facts in a large application instituted in the Transvaal Provincial Division by fifty seven other farmers against the Second Respondent. The fifty seven farmers who concluded a standard contract with A T Grain declare in that contract with A T Grain that same would only be valid if the silo certificates were handed to the Second Respondent at its Lichtenburg branch for safe custody;

(d)

the orders prayed for by the Applicants are in conflict with the terms and provisions of Applicants' contract with A T Grain, in that, that contract stipulates requirements which are irreconcilable with the Applicants' alleged verbal contract with the Second Respondent;

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(e)

Clause 4 of the Applicants' contract with A T Grain stipulates that the Applicants during the delivery period must furnish the silo certificates to A T Grain. Clause 6 stipulates that as soon as A T Grain is in possession of the original silo certificates it becomes the owner thereof before it has effected payment to the Applicants, the Applicants alleged verbal contracts with the Second Respondent are irreconcilable with the available, documentation in that same reflects that the Second Respondent has purchased the silo certificates from Greater Grain.

(f)

The Applicants signed the silo certificates probably in terms of their contract with A T Grain. The Applicants transferred their ownership of the silo certificates to A T Grain in terms of their contract.

(g)

Estelle Wessels ex facie her mandate and Coetzee acted as agents of the Applicants, A T Grain and Greater Grain and in that capacity signed the silo certificate mandates authorising A T Grain, and or Greater Grain to sell the silo certificates to the Second Respondent.

(h)

The Applicants are estopped from stating that they are the lawful owners of the silo certificates in that they failed to disclose to the Second Respondent that they had transferred the ownership of their silo certificates to A T Grain, alternatively the Applicants did not disclose to A T

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Grain, and Greater Grain that they retained the ownership of the silo certificates.

[14] Before adjudicating the issues raised herein it is apposite to allude to the facts giving rise to this application. A summary thereof follows herein.

Factual Background

[1]

During 2004 the Applicants harvested a crop of wheat and mealie grain. In terms of an agreement with the First Respondent which owns silos, the latter on behalf of the Applicants stored 407 tons of wheat grain and 723.793 tons of mealie grain respectively. The First Respondent was to deal with this grain as instructed by the Applicants.

[2]

The First Respondent in pursuance of the above described agreement issued three silo certificates to the First Applicant, these being silo certificate numbers 769, 770 and 771, and in respect of the Second Applicant issued four silo certificates numbers 12062, 12063, 12065, and 120170. These certificates confirmed the Applicants' ownership of the stored grain.

[3]

A silo certificate is a document issued by the owner of a silo storage facility. This document is generally recognised and accepted by the local trade and the South African Features and Options Exchange (SAFEX) as a negotiable instrument.

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A silo certificate is issued in respect of an approved product which is freely tradeable on SAFEX.

[4]

A special feature of this document is that it is utilised and accepted as a negotiable instrument either to...