EACB Studio (Pty) Limited v Super Group Trading Limited

• Jurisdiction: South Africa
• Judge: NF Kgomo J
• Judgment Date: 06 May 2014
• Docket Number: 13/16424
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 28 April 2014
• Citation: 2014 JDR 1018 (GSJ)

N F Kgomo, J:

INTRODUCTION

[1]

The applicant launched an application against the two respondents for an order –

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N F Kgomo J

1.1

declaring that the applicant is the owner of the goods referred to in Annexes "FA3" and "FA4" of the applicant's founding affidavit and which are shaded or colour-coded in red therein;

1.2

directing the second respondent to return to the applicant the goods as identified in Annexes "FA3" and "FA4";

1.3

that any of the respondents who opposes this application be directed to pay the costs thereof; and

1.4

for further and/or alternative relief.

[2]

The application is only opposed by the first respondent.

[3]

The facts and circumstances inherent in this application will be set out when the history and factual matrix hereof is dealt with hereunder.

THE PARTIES

[4]

The applicant, EACB STUDIO (PTY) LTD, is a limited liability company duly registered and incorporated in accordance with the company laws of South Africa ("RSA"). It carries on business as a designer, manufacturer and distributor of high fashion clothing, shoes and related accessories. Its registered office is situated at 18 Hope Street, Gardens, Cape Town.

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[5]

The first respondent, SUPER GROUP TRADING LIMITED, is a company registered and incorporated in Mauritius in accordance with the company laws of Mauritius, represented in this matter by Attorneys Darryl Furman & Associates whose offices are situated at Rosebank law Chambers, No 4 Glenhove Road, Melrose Estate, Johannesburg.

[6]

The second respondent, RAZISPACE (PTY) LIMITED, is a limited liability company duly registered and incorporated in accordance with the company laws of the RSA and whose registered office is situate at 21 The Broads, Mulbarton, Southern Johannesburg.

[7]

The deponent of the applicant's founding affidavit, Mr Casper Badenhorst ("Badenhorst") is the sole director of the applicant. He (Badenhorst) and Mr Eliyahu Saig ("Saig") are joint directors of the second respondent.

[8]

The applicant conducts business as a retailer of women's clothing and footwear. Initially it conducted four retail outlets at, respectively, Maponya Mall in Soweto; Rosebank; Eastgate and Cresta. The Maponya Mall and Cresta outlets were closed due to them not being financially viable. Only the Eastgate and Rosebank stores continue to conduct business.

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RELEVANT BACKGROUND HISTORY AND FACTUAL MATRIX

[9]

According to the applicant, the clothing in the second respondent's outlets (hereinafter referred to as "Razispace") at Rosebank and Eastgate are predominantly sourced from the applicant, and are of the make or branding or label, "Errol Arendz" and "Errol Arendz Dusud". According to the applicant further, this stock was purchased by Razispace from it pursuant to a credit application submitted by it to the applicant. The applicant accepted the credit application and allowed Razispace to purchase goods on credit from it. The express and relevant provisions of the credit application (and agreement) provided, inter alia, as follows:

9.1

Razispace's credit terms were 30 days from date of statement; and

9.2

Until such time as Razispace had paid the purchase price in full in respect of any purchase of goods, the ownership in and to the goods remain vested in the applicant. The applicant would be entitled in its sole discretion and without notice to Razispace, take possession of the goods which had not yet been paid for in full and in respect of which payment is overdue. When such goods are taken back due to non-payment, a credit note would be passed in favour of Razispace in respect of such goods.

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[10]

According to the applicant further, "… the stock that was sold to Razispace was all manufactured at the applicant's manufacturing facility in China and on-sold to Razispace …" [1]

[11]

The above highlighted words have been relied upon herein by the respondent in support of its case as would be demonstrated later. What is material at this stage is that the applicant is adamant and categoric that it remains the owner of all the stock that was sold to Razispace as long as it is not yet fully paid for.

[12]

According to the applicant further, Razispace is currently indebted to it in respect of goods sold and delivered to it by the applicant at the latter's usual price, which indebtedness is capitalised at the sum of R1 976 263,75 as at the time this application was launched. The applicant attached a statement from it given to Razispace in respect of its indebtedness as Annexure "FA2" to its founding affidavit. This statement or series of statements span a space of ten pages at folios 18 to 27 of the paginated record herein. This statement(s) lists all the invoices in respect of which stock was sold and delivered to Razispace Eastgate and Rosebank stores. It is so that most of the stock according to the applicant, which it sold to Razispace has been on-sold by it (Razispace) to customers notwithstanding the fact that it (Razispace) has not yet paid for it in full or at all. That in any event would have been in the course and/or scope of the normal conduct of business.

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[13]

The procedure of sourcing and on-selling stock to Razispace is as follows: When the applicant delivers goods to Razispace, the latter scans the goods in-store onto its computer stock control system. The system allows for a report to be generated at any time relating to the goods that have not been sold and which are still in the relevant store.

[14]

The applicant has attached Annexures "FA3" and "FA4" being Razispace store control computer system lists in respect of the stock at the two respective stores. The schedules form part of the paginated papers herein: Annexure "FA3" is in respect of stock at the Rosebank store and it is at folios 28 to 55 of the paginated record. "FA4" is in respect of stock at the Eastgate Mall store and is at folios 56 to 65 of the paginated record. The lists or annexures are colour-coded green and red. The stock or goods shaded in red in the...