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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED: YES  

[29 January 2021]

CASE NO: 39358/13

 

In the matter between:

 

THE SPAR GROUP LIMITED                                                            PLAINTIFF

And

 

NEDBANK LIMITED                                                                            FIRST DEFENDANT

RODTRADE TWENTY CC                                                                   SECOND DEFENDANT

RUDOLF JOHANNES JANSE VAN VUREN                                     THIRD DEFENDANT

 

 J U D G M E N T

 

MUDAU, J:

 

[1]          The plaintiff, the Spar Group Limited (“Spar”) a public company with limited liability, instituted action on 21 October 2013 against the first defendant (“Nedbank”), a commercial bank, the second defendant, Rodtrade Twenty CC (“Rodtrade”) and the third defendant ("Van Vuren"). The claims of Spar arise from the dealings of Spar and Nedbank respectively with the second defendant, (“Rodtrade”), which conducted a Spar retail business known as “Claremont Spar”. The action originally involved four claims, namely A, B, C and D. Following an amendment to Spar's particulars of claim, an additional claim, namely E, was later introduced.

 

THE CLAIMS

[2]          Claim A was directed against Nedbank only on the basis that Nedbank was liable, as an undisclosed principal for the trading debt of Claremont Spar to Spar in the sum of R4, 829,403.41. Claim A was abandoned by Spar at the end of its case. Claim B,  which was in  the alternative to  Claim A,  was brought against Nedbank and Van Vuren for a declaration that they shall be personally liable for the debt of Rodtrade to Spar and an order that they pay the sum of R4, 829,403.41 to Spar. This claim is founded on a statutory liability in terms of section 64 of the Close Corporations Act 69 of 1984.   Under  this  claim,  Spar contends that the Claremont Spar business was carried on recklessly, with gross negligence or with intent to defraud its creditors, and that Nedbank was knowingly party to the carrying on of the business in such a manner, and hence the alleged liability to Spar.

[3]          Claim C, a further alternative claim, was similarly brought against Nedbank and Van Vuren for delictual damages in the sum of R4, 829,403.41. Essentially, Spar contends that Nedbank's failure to inform Spar of certain facts, mainly that Nedbank had obtained a perfection order, attached Rodtrade's movable assets as security and thereafter allowed Claremont Spar to continue trading with such assets, all the while still receiving goods and services from Spar on credit, caused Spar to suffer a foreseeable and preventable loss in the claimed sum.

[4]          Claim D, was only directed against Van Vuren based on a suretyship agreement, seeking to hold Van Vuren liable for the debts of Rodtrade to Spar in the sum of R4, 829,403.41.

[5]          Claim E was brought against Nedbank only for a declaratory order to the effect that Spar is entitled as a secured creditor (pursuant to the perfection of its notarial bond) to possession of Rodtrade's movable assets, alternatively payment of the full proceeds upon realisation of the assets and for an order that Nedbank should surrender the relevant assets to Spar, alternatively pay to Spar the proceeds of the realisation of such assets. Spar's claims against Rodtrade and Van Vuren were settled. Consequently, these parties did not participate in the trial and the trial proceeded between Spar and Nedbank only.

[6]          Following upon the abandonment of claim A by the plaintiff, and the settlement with Rodtrade and Van Vuren, the remaining claims B, C and E as against Nedbank, await determination. The parties agreed to a separation of issues. It is only the merits of the plaintiff’s claims that fall to be determined at this stage, with causation and quantum standing over for later determination.

 

BACKGROUND

[7]          On 1 March 2008 Rodtrade signed a written “Application for Retailer Membership”, and pursuant thereto entered into a written “Spar Membership Agreement” (“Membership Agreement”), in terms whereof Rodtrade became a member of the Spar Guild and entitled to trade as a Spar retailer using the Spar trademarks. Rodtrade was granted credit facilities by Spar in terms of a written “Application for Credit Facilities” (“Credit Application”), which embodied “Standard Terms of Sale” (“the Standard Terms”). In terms of the Standard Terms, Rodtrade was inter alia obliged to duly and promptly pay to Spar the prices of goods sold to Rodtrade and other debts owing from any other cause, without deduction or demand, on or before the due date in accordance with the credit facilities allowed from time to time. Spar sells its goods to retailers on credit. Spar provides the retailers with weekly statements.

[8]          The terms of credit require retailers to make payment of the amounts reflected on the weekly statements within a period of either 19 or 31 days from the date of each weekly statement. These statements have sufficient details to enable the retailers to identify easily all the deliveries made during the particular week on which the statement is based. Retailers are able to purchase merchandise directly from Spar’s distribution centres and/or from other suppliers. Merchandise that Spar supplies to the retailers from its distribution centres are referred to as “warehouse transactions”. The merchandise that retailers purchase from other suppliers are for Spar’s account. These are commonly referred to as “drop shipments”. The retailers pay Spar for this merchandise in due course.

[9]          In the event Rodtrade, inter alia, fails to pay any monies owing to Spar on due date or breaches any other term or condition, the full amount owing by Rodtrade to Spar from whatever cause would immediately become due and payable. Credit facilities would be allowed by Spar to Rodtrade at the discretion of Spar and Spar would be entitled, without notice, at any time to vary, curtail or terminate such facilities.

[10]       Unless otherwise notified, payment terms were, as indicated, 19 days from date of statement in respect of warehouse transactions and 31 days from date of statement in respect of drop shipment transactions. In order to provide for the due and punctual payment of all monies due by Rodtrade to Spar, Rodtrade was obliged to sign a debit order instruction authorising Spar to draw from Rodtrade’s current bank account the amounts due for payment by Rodtrade to Spar.

[11]       Rodtrade undertook that it would not pass any notarial bond over its movables, pledge, or otherwise encumber any of its assets without prior written consent of Spar. Rodtrade was also obliged to use the “Spar Integrated Group Management Accounting” system (“SIGMA system”), being the back-office software system for the operation of the store which linked Rodtrade to the relevant Spar distribution centre.

[12]       With effect from 22 May 2008, Mr Van Vuren acquired the membership interest in Rodtrade from Mr Kyriacos Kyriacou, and in so doing acquired control of the Claremont Spar business, which was an operating business. In the Credit Application Van Vuren disclosed that the purchase price paid for the business was R4.5 million, of which a cash deposit of R1.5 million had been paid, and that a medium term loan had been obtained from Nedbank. In terms of a written “Term Loan” signed on 31 May 2008, Nedbank granted Rodtrade a term loan for R2.5 million repayable in 60 monthly instalments of R59, 086.17 with effect from 1 July 2008. Nedbank also extended an overdraft of R500, 000.00 to Rodtrade. On the same day, Van Vuren bound himself as surety and co-principal debtor in favour of Nedbank for the indebtedness of Rodtrade from time to time. Accordingly, Spar was aware that the purchase price paid for the business was paid by way of a deposit of R1.5 million with a term loan having been obtained for the balance. Nedbank also provided a bank guarantee on behalf of Rodtrade in favour of Spar.

[13]       On 24 October 2008, Rodtrade obtained from Nedbank a transactional current account. As continuing covering security for Rodtrade's indebtedness to Nedbank from time to time, a notarial bond which served as security for the payment of a total sum of R3, 000,000.00 over Rodtrade's movable property, was registered in favour of Nedbank on 25 July 2008. On 8 February 2011, Nedbank issued a facility letter in terms of which banking facilities were granted to Rodtrade in the form of an overdraft facility in the sum of R600, 000.00, a medium-term loan of R1, 491,173.60 and a letter of guarantee facility in the sum of R750, 000.00.

[14]       On 9 June 2008 Van Vuren, representing Rodtrade signed a debit order instruction authorising Spar to draw variable amounts against the current account of Rodtrade held at Nedbank (“Rodtrade’s bank account”), which would become payable by Rodtrade to Spar in respect of drop shipment and warehouse transactions. On the same day Rodtrade and Spar also entered into a “Spar Retail Network Agreement” in terms of which Spar provided the information technology (“IT”) services linking Rodtrade to Spar’s distribution centre for purposes, inter alia of orders and invoicing referred to above. Pursuant to the grant of credit facilities by Spar to Rodtrade, Spar through its Northrand Division supplied trading stock on credit to Rodtrade.

[15]       On 13 June 2008, Van Vuren signed a deed of suretyship binding himself to Spar as a surety for the obligations of Rodtrade. On 25 July 2008, Rodtrade caused General notarial bond BN11392/2008 (“the Nedbank notarial bond”) to be registered in favour of Nedbank. In terms thereof, Rodtrade inter alia declared to bind and give as security to Nedbank as a continuing covering security, all equipment and other movable assets held from time to time at the Claremont Spar. Later, on 13 August 2012 a general notarial covering bond was registered over Rodtrade's corporeal and incorporeal movable property in favour of Spar as continuing covering security for the indebtedness of Rodtrade to the aggregate amount of R2, 200,000.00.

 

[16]       In due course Rodtrade fell into financial difficulties. On 25 March 2011, Nedbank dishonoured a debit order payment by Rodtrade to Spar for R217, 239.33.  This debit order was again presented for payment by Spar on 1 April 2011 and on 8 April 2011.  On both occasions, Nedbank dishonoured the debit orders. As it later transpired, prior to the debit order of R217,239.33 having been dishonoured for the first time on 1 April 2011, during the period March 2009 to March 2011 a total of 22 debit order payments by Rodtrade to Spar had been dishonoured. Consequently, on 7 April 2011, Nedbank obtained from the Pretoria High Court (per Webster J) a provisional perfection order executed on 8 April 2011.

 

[17]       The perfection order was subsequently made final by the same court on 21 April 2011 (per Phatudi J). The provisional perfection order provided, inter alia, as follows:

"2. The Applicant, through the Sheriff, is authorised and empowered for the purposes of perfecting its security in terms of a General Notarial Covering Bond No. BN 011392/2008 to take possession of forthwith and to hold in pledge all of the undermentioned Respondent's movable property and effects wheresoever situated:

2.1.   All equipment and other movable assets as held from time to time at Spar Claremont, 861 Paff Street, Claremont, Pretoria.

2.2.   Such possession is to be obtained in one or more of the following ways, without removal thereof from the respondent's premises:

2.2.1.    the compiling of an inventory of the assets referred to;

2.2.2.    the affixing of such assets of a mark and/or sticker identifying same; and

2.2.3.    the appointment by the Applicant of a person to act as its agent in keeping possession of the assets pending the finalisation of this application.

Alternatively

2.3.   That the Sheriff be authorised and directed to deliver to the Applicant all those movable assets attached in terms hereof to allow the Applicant to deal therewith as set out in the Notarial Bond annexed to the founding affidavit.

...

4. That the relief sought in prayers 2.1. to 2.2. above operates as an interim interdict with immediate effect pending the final determination of this matter."

[18]       Subsequently, on 23 December 2011, Nedbank, Rodtrade and Van Vuren entered into a written settlement. Rodtrade and Van Vuren acknowledged their indebtedness to Nedbank in the sum of R600, 000.00 in respect of the overdraft and the sum of R1, 650,000.00 in respect of the medium-term loan. In return, Nedbank granted to Rodtrade fresh banking facilities in the form of an overdraft facility, medium-term loan and letter of guarantee facility, which were to be conducted within the terms of a fresh facility letter and a medium-term loan agreement. Nedbank issued a facilities letter dated 22 December 2011 in respect of the mentioned banking facilities and entered into a new medium-term loan for a period of 36 months.

[19]       Following the rule nisi issued on 7 April 2011, on 8 April 2011 Nedbank addressed an email to Van Vuren titled “Agency Letter – Perfection of GNB BN000011392/2008” in which it was confirmed that the Nedbank notarial bond had been perfected, it was stated that Van Vuren was appointed as agent of Nedbank and as “agent you carry the risks and responsibilities and all possession and control remains with Nedbank”. Due to “poor financial performance of the business as well as continued poor conduct on the current account" of Rodtrade, Nedbank gave notice on 18 December 2012 that the R600,00.00 overdraft facility had to be reduced at a rate of R25,000.00 per month with effect from 1 March 2013 until the overdraft was fully repaid.  It further stated that no excesses would be allowed.

[20]       By 16 May 2012, Rodtrade’s overdraft with Nedbank had increased to R1, 077,952.56.   On 30 April 2012, Nedbank dishonoured a Spar debit order for R310, 430.05, which debit order payment was again presented by Spar for payment on 11 May 2012, 21 May 2012 and 1 June 2012 but was on each occasion, again dishonoured. It was not until 13 August 2012 that general notarial covering bond BN36105/2012 for an amount of R2 million was registered in favour of Spar over the movable property of Rodtrade (“the Spar notarial bond”). 

[21]       Following the registration of the Spar notarial bond on 13 August 2012, Rodtrade continuously defaulted in its payment obligations to Spar. On 17 August 2012 until Spar gave a “Stop Supplies” notice to all drop shipment suppliers on 30 November 2012, 54 debit order payments by Rodtrade to Spar were dishonoured.   The effect of the “Stop Supplies” notice issued by Spar was that Spar was no longer liable for payment to suppliers for goods supplied to Rodtrade.

[22]       On 18 December 2012, Nedbank gave notice to Rodtrade that it was not willing to renew Rodtrade’s overdraft facility, and that with effect from 1 March 2013 Rodtrade was required to reduce its overdraft indebtedness to Nedbank by monthly payments of R25, 000.00, that no excesses would be allowed, and that the overdraft would be called up immediately if Spar presented the guarantee of R750, 000.00 issued by Nedbank. Rodtrade’s financial woes continued. On 25 June 2013, Spar brought an urgent application to perfect its rights under the Spar notarial bond.

[23]       On 8 November 2013, Nedbank issued summons against Rodtrade and Van Vuren in respect of the outstanding indebtedness by Rodtrade on its cheque account and term loan agreement, and Van Vuren as surety and subsequently obtained default judgment. Following Spar's perfection, Mr Frans Jooste, the Regional Manager: Credit Risk / Business Banking Pretoria, Nedbank advised Spar that, Nedbank had already perfected its General Notarial Bond in respect of all the movable assets of Rodtrade and hence all movable assets of the business were to be secured in favour of Nedbank and proposed the formal transfer of all keys to the premises into Nedbank's possession.

[24]       Spar called the following witnesses: Mr William Mahlangu (“Mahlangu”), who is employed by Spar as a divisional credit manager; Ms Tamara Farmer (“Ms Farmer”), who was during the relevant period, employed by Spar as a senior retail manager; Ms Paula Sithole (“Ms Sithole”) who is employed by Spar as a senior credit controller; Mr Wayne Clark (“Clark”) who was employed by MD Retail Management Consultants (Pty) Ltd (“MD Retail”) as a general manager during the relevant period; and Bheki Mabanga (“Mabanga”), who was employed by Spar as a retail operations manager during the period 2007 to 2012. Pursuant to the close of Spar’s case, Nedbank closed its case without calling any witnesses.

 

ISSUES FOR DETERMINATION

[25]       It remains to be determined whether Nedbank is personally liable to Spar for the unpaid debts of Rodtrade which are irrecoverable by Spar from Rodtrade as alleged (Claim B); whether Nedbank is liable to Spar for delictual damages amounting to the unpaid debts of Rodtrade (Claim C) and finally, whether Nedbank is liable to surrender to Spar all or part of the proceeds of the realisation of Rodtrade's assets (Claim E). The crux of Spar's complaint, which applies both in the instance of its statutory claim (Claim B) and its delictual claim (Claim C), is that Nedbank perfected its notarial bond by the attachment of Rodtrade's assets and not disclosing this fact to Rodtrade’s other creditors.

[26]       By way of Claim B, Spar contends that Rodtrade's business was carried on recklessly, with gross negligence or with intent to defraud its creditors by not disclosing Nedbank’s attachment, and that Nedbank was knowingly a party thereto. Had Spar been aware of Nedbank's attachment, it would not have continued to supply Rodtrade on credit in the absence of alternative, satisfactory security.

[27]       By way of Claim C, Spar contends that Nedbank owed a legal duty to Rodtrade's future creditors post April 2011 and in particular to Spar, to prevent potential economic loss for them, by disclosing the fact that Nedbank had attached Rodtrade’s assets.  It is alleged that Nedbank breached this legal duty in a culpable manner. Spar claims that Nedbank is personally liable to Spar for the unpaid debts of Rodtrade (Claim B) or Nedbank is liable to Spar for damages consequent upon a breach of the legal duty owed to Spar (Claim C).

[28]       Spar maintains in respect of Claim E that Nedbank is liable to surrender to Spar all, alternatively part thereof, of the proceeds of the realisation of Rodtrade's assets on the basis that Spar’s perfection constituted a valid pledge, whereas Nedbank’s earlier perfection did not constitute a valid pledge or cover all the assets present at the time of Spar’s perfection.

 

CLAIM B

[29]       Spar’s statutory claim (Claim B) is founded on section 64 of the CC Act. Section 64 of the CC Act reads as follows:

“64       Liability for reckless or fraudulent carrying-on of business of corporation

(1)  If it at any time appears that any business of a corporation was or is being carried on recklessly, with gross negligence or with intent to defraud any person or for any fraudulent purpose, a Court may on the application of the Master, or any creditor, member or liquidator of the corporation, declare that any person who was knowingly a party to the carrying on of the business in any such manner, shall be personally liable for all or any of such debts or other liabilities of the corporation as the Court may direct, and the Court may give such further orders as it considers proper for the purpose of giving effect to the declaration and enforcing that liability.

(2) If any business of a corporation is carried on in any manner contemplated in subsection (1), every person who is knowingly a party to the carrying on of the business in any such manner, shall be guilty of an offence.”

[30]       It is well established and readily conceded that section 64 is essentially identical to section 424 of the Companies Act 61 of 1973.  In Ebrahim and Another v Airport Cold Storage (Pty) Ltd[1],the position was stated by Cameron JA as follows:

“Section 64 is for all intents and purposes identical to s424 of the Companies Act 61 of 1973, ‘at least as far as the underlying philosophy is concerned’.  The case law on one provision therefore illuminates the other. The [CC] Act adds ‘gross negligence’ to the Companies Act’s list of impugned business methods.”

[31]       In the context of section 64 of the CC Act, the word "recklessly" suggests not mere negligence, but at the very least, gross negligence.[2] In order to establish a claim in terms of section 64 Spar has to establish that the business of Rodtrade was carried on recklessly, or with gross negligence, or with intent to defraud any person, or for a fraudulent purpose.

[32]       In the instant case, Spar was quick to point out in the heads of argument that it does not suggests that the business of Rocktrade at Claremont Spar was carried out for fraudulent purposes. However, Spar has to establish that Nedbank was a party to the carrying on of the business of Rodtrade; and had knowledge of the facts from which the conclusion is properly to be drawn that the business of Rodtrade was carried in any of the manner referred to above.

[33]       Acting recklessly consists in an entire failure to consider the consequences of one’s actions, in other words, an attitude of reckless disregard of such consequences.  In applying the recklessness test to the running of a close corporation, the Court should have regard to, amongst other things the corporation’s scope of operations, the members’ roles, functions and powers, the amount of the debts, the extent of the financial difficulties and the prospects of recovery, plus the particular circumstances of the claim and the extent to which the member has departed from the standards of a reasonable man in regard thereto.[3]

[34]       In the present matter, Spar contends Rodtrade continued to trade the Claremont Spar business and to receive goods and services from Spar on credit. However, Spar was given the deliberate false impression that the movable assets of Rodtrade were unencumbered and available for attachment in the event of Rodtrade's defaulting in the payment of its debts.  Rodtrade held out to its other creditors, in particular Spar, that it was "business as usual". It is contended that, Spar clearly was induced by the false representation to continue to supply goods and services on credit, whilst it would not have done so had it known that its security was compromised.

[35]       It is submitted on behalf of Spar that the only reasonable inference is that Nedbank must have known that Spar was unaware of the fact that its security position was severely compromised on the basis that the Nedbank orchestrated the attachment of Rodtrade's assets, the appointment of Van Vuren as its agent, as well as allowing Rodtrade to continue trading the Claremont Spar business with the use of its movable assets.

[36]       Spar contend that Nedbank must have known that Spar would not further extend credit facilities to Rodtrade if it were aware of its compromised security position. In Powertech Industries Ltd v Mayberry[4], which was subsequently approved in Cooper NNO v SA Mutual Life Assurance Society and Others[5]   Nugent J (as he then was) considered a claim against the company's auditor under section 64(1) and came to the conclusion that in the absence of some positive duty, a person unrelated to the company is not a party to the carrying on of business by the company if he takes no positive steps at all. It was further held that section 424 “does not extend to those who, while carrying on their own business, incidentally enable the company to carry on its business… [A] landlord, for example, may by letting premises to a company enable the company to carry on its business, and even enable it to do so recklessly, but in so doing the landlord is not carrying on the company’s business and is not a party thereto”.[6] 

[37]       Spar conceded and accordingly accepted that in order to hold an "outsider" personally liable for a corporation's debts under section 64(1), it is necessary to demonstrate that such a person (in this case, Nedbank) did more than simply enable the corporation to conduct its business recklessly and/or fraudulently.

[38]       It is Spar's case that there was indeed deliberate conduct, which is disputed, on the part of Nedbank designed to enable Rodtrade to achieve its objectives and that Nedbank actually acted in concert with Rodtrade in a collusive scheme for both of them to benefit from Spar's credit facility. In this regard, Spar contend that Nedbank allowed the Rodtrade assets to be put back into the market by allowing Rodtrade to continue to trade therewith.  In this way, Nedbank participated directly in Rodtrade's business and acted in common pursuit of Rodtrade's business. Subsequent to Nedbank’s perfection of its notarial bond, Nedbank provided fresh temporary banking facilities to Rodtrade to further assist it to trade, a sine qua non for Rodtrade's further trading and thus interfered with the rights of other creditors.

[39]       However, it is trite that the remedy in terms of section 64(1) is a punitive one and a Court will not lightly find recklessness.[7] The onus is upon the party alleging recklessness to prove it by establishing the necessary facts according to the required standard, namely, on a balance of probabilities.[8]

[40]       In the instant case, Mahlangu, Spar’s Divisional Credit Manager, testified under cross-examination inter alia that, when a bank lends money, it requires security. Furthermore, that he is familiar with the forms of security banks generally require, and that in the case of a retailer, a usual form of security required by a bank is a notarial bond. It is common cause that Mr Mahlangu had taken over from Mr Bochard in that position. He also testified that Spar’s strategy is to be able to grow their retailers. Even if they default, they did not withdraw support immediately but offer support depending on the circumstances. Bochard, who was not called to testify, dealt with Rodtrade during the relevant period.

[41]       Farmer, the retail operations manager at the time, testified that had they known about Nedbank’s perfection, Spar too, would have perfected immediately and put the store on stop supply to mitigate further indebtedness. During cross-examination, she testified that the identity of Nedbank as Rodtrade’s banker appeared from the credit application of Rodtrade and that, she was aware that part of the purchase price of R4.5 million had been funded by a medium term loan. She was constrained to concede and accepted that, where a financial institution provides a term loan it would require security and that, it would have been a simple matter for the credit department of Spar to establish the terms of the term loan and the security required by the bank. Furthermore, that where a bank provides finance one of the forms of security is the business itself by means of a notarial bond over assets.

[42]       In addition, Ms Farmers testified that that Nedbank provided a bank guarantee on behalf of Rodtrade in favour of Spar, and that just as Spar required security, so too did Nedbank. Importantly, she too was constrained to concede that after Nedbank obtained the perfection order, the Claremont Spar business continued to be conducted by Van Vuren as before on behalf of Rodtrade. In addition, that, that Nedbank remained the banker of Rodtrade, and that the only change was that Van Vuren was required to exercise possession on behalf of Nedbank of the stock that was subject to the perfection order. Equally significant, she testified that Van Vuren could not in any way represent Nedbank in conducting the business of Rodtrade and that Nedbank was carrying on its own business as that of the banker of Rodtrade.

[43]       In addition, Ms Farmer was constrained to concede that Spar was not dependent on any third party to obtain information pertaining to the franchisee, and were clearly better off than any other creditor because of the nature of their contractual relationship. From her personal knowledge, she could not confirm under oath that Van Vuren carried on the retail store as the agent of Nedbank. She also testified that at the time that Nedbank perfected its notarial bond in April 2011, there had been various instances where Rodtrade was unable to meet its financial obligations to Spar.

[44]       Ms Sithole, the Credit Controller, testified and confirmed that each time those payments due to Spar were not honoured; she would prepare an executive summary for her seniors, including Borchard for consideration. She confirmed that there were a number of such instances before November 2012.

[45]       Clark testified that his company MD Retail or MDRMC was retained as a third-party contractor by Spar to assist in confidential financial management services. The monthly management accounts were prepared from an accounting system that was supplied by, in this case, Rodtrade. He expressed reservations with regard to the accuracy or reliability of the figures supplied and in particular the gross profit percentage, which were however, not verified. He went on to give detail with regard to the level of exposure between Spar and Nedbank in relation to their business interaction with Rodtrade. Under cross-examination, he could not discount the possibility that the management report prepared found its way to Spar. However, he confirmed that after Spar had perfected, the store was closed.

[46]       Mabanga, who was the retail operations manager responsible for the Claremont Spar testified that after April 2011, it was business as usual at the Claremont Spar in all respects with Rodtrade purchasing stock and operating the business, and that nothing changed in terms of management or in terms of stock purchases. He testified that to his knowledge Nedbank never operated the Claremont Spar business and that Nedbank perfected its notarial bond in order to take possession of the assets and not to operate the business.

[47]        It is common cause that in the application made in support of Spar’s perfection of its notarial bond, the following is stated in the founding affidavit by McMean to which Ms Farmer deposed to a confirmatory affidavit: “I state at this point that the Applicant has at all times been reluctant to take the step of perfecting its security over the Respondent’s assets as it is of the view that the Respondent’s business is viable and that with assistance from the Applicant it would survive.” (My underlining)

[48]       There are no facts from which to infer or conclude regarding this matter that Nedbank was an active participant in and beneficiary of the alleged reckless or fraudulent manner in which the Rodtrade business was conducted as envisaged in section 64 (1) of the CC Act in light of the evidence presented by Spar that the retail store was “viable” and that with its assistance, “it would survive”. In my judgment, Spar failed to establish that Nedbank was knowingly a party to the carrying on of the business of Rodtrade. Accordingly, there is no basis to conclude that Nedbank was a party to the carrying of the business of Rodtrade as contended by Spar. I find that at all time relevant in its dealings with Rodtrade, Nedbank was engaged in its own business as the banker of Rodtrade. I accordingly find that Claim B has no basis but falls to be dismissed.

 

CLAIM C – DELICTUAL CLAIM

[49]       It is well-established in our law that in contrast to cases of physical harm, conduct causing pure economic loss is not prima facie wrongful[9] . The Constitutional Court in Country Cloud Trading CC v MEC, Department of Infrastructure Development[10]  stated:

“So our law is generally reluctant to recognise pure economic loss claims, especially where it would constitute an extension of the law of delict. Wrongfulness must be positively established. It has thus far been established in limited categories of cases, like intentional interferences in contractual relations or negligent misstatements, where the plaintiff can show a right or legally recognised interest that the defendant infringed.” (Footnotes omitted.)

[50]       The learned authors Neethling, Potgieter & Visser[11] , explain the position as follows:

"Accordingly, in cases of liability for an omission or for causing pure economic loss (with the exception of the infringement of the right to goodwill in the case of unlawful competition) wrongfulness is normally determined not by asking whether the plaintiff’s subjective right has been infringed, but rather by asking whether, according to the boni mores or reasonableness criterion the defendant had a legal duty to prevent harm, in other words whether the defendant could reasonably (according to the boni mores) have been expected to act positively.”

[51]       In the instant case, no legal relationship between the parties is relied on, whether by virtue of contract or otherwise. The conduct complained of is, accordingly, that of an omission. The legal duty contended for does not fit into one of the categories previously recognised by our law, it being, accordingly novel. The fundamental predicament in assessing liability for omissions was elegantly framed by Marais JA in Cape Town Municipality v Bakkerud[12]   in the following way:,

“Society is hesitant to impose liability in law for, as it is sometimes put, ‘minding one's own business’. The reticence is reflected in legal and judicial writing by propositions such as no liability in delict for pure (or mere) omissions. The problem with such beguilingly simple propositions is that, however convenient they may be, they are apt, at worst, to mislead the unwary and, at best, to be unhelpful. The proposition that there is no liability in law for minding one's own business is sound only if, in the eyes of the law, the situation which has arisen is someone else's business and not one's own. But whether that is indeed so is, of course, the very question which has proved so difficult to answer in every age. It is implicit in the second proposition, qualified as it usually is by the use of accompanying epithets such as '’pure’ or ‘mere’, that there are omissions which are not of that character. But what kind of omissions those might be is left unanswered by such formulations.”

[52]       The crisp issue is whether in the circumstances of the pleaded case, the convictions of the community support a legal duty on the part of Nedbank to speak out. In relation to wrongfulness and the existence or otherwise of a legal duty, the Supreme Court of Appeal has preferred to ask whether 'if the defendant was negligent, it would be reasonable to impose liability on him for such negligence.[13] In AB Ventures Ltd v Siemens Ltd[14] the SCA dismissed a claim for pure economic loss where the plaintiff in a contractual arrangement could have avoided loss, but failed to do so.  Nugent JA, delivering the unanimous judgment of the SCA, held as follows:

“[22] If AB Ventures indeed sustained loss then the reason that it did so was because it attracted the loss to itself in its contract with Lumwana.  By its own contractual act it took upon itself the risk of liability arising from delay and expenses that might be caused by the default of other contractors.  The act of Siemens in causing delay and expense was no more than the trigger for that liability to arise.  Had AB Ventures not contracted to accept that risk in the first place, then it would not have suffered the loss at all.  That it had no contractual nexus with Siemens means only that it was not capable of shifting the loss that it had brought upon itself to Siemens contractually, but that is beside the point.  We are concerned with whether it was capable of avoiding the loss, and not whether it was capable of shifting it elsewhere, and clearly it was capable of doing so.”

[53]       The plaintiff has listed various acts and omissions that it relies upon in support of the allegation that Rodtrade carried on business recklessly. It was contended on behalf of Spar that the loss suffered by Spar was occasioned by the fraudulent compromise of Spar's security in respect of Rodtrade's movable assets. Counsel submitted that it was Nedbank's own prior conduct (its perfection) in terms of which the danger to Spar was caused. It was argued that had Spar known of Nedbank's perfection, it would immediately have put Rodtrade on "stop supplies", i.e. ceased to supply any goods on credit. Spar argued that Nedbank had knowledge of certain unusual characteristics related to its perfection, in particular the fact that the pledger practically remained in possession of the pledged assets.

[54]       The enquiry whether Nedbank had a duty to act considering all the circumstances embraces the application of the general principle of reasonableness, having regard to the legal convictions of the community as assessed by this court.[15] This court must be mindful that the value judgment, which the application of the general criterion of reasonableness requires, is based on considerations of morality and policy and the court's perception of the legal convictions of the community, and entails a consideration of all the circumstances of the case. The criterion for the determination of wrongfulness is a 'general criterion of reasonableness', i,e. whether it would be reasonable to impose a legal duty on the defendant.[16]

[55]        An omission is wrongful if the defendant is under a legal duty to act positively to prevent the harm suffered by the plaintiff. A defendant is under a legal duty to act positively to prevent harm to a plaintiff if it is reasonable to expect of the defendant to have taken positive measures to prevent the harm.[17]  In Cape Bakkerud[18] it was stated that special circumstances must be established for liability to flow from an omission.

[56]       In support of the plaintiff’s contentions, counsel referred me to these two decisions: Jaffit v Garlicke & Bousfield Inc (Madondo J)[19] and Stols v Garlicke & Bousfield Inc (per Gorven J).[20]  The facts in both cases were similar. The plaintiffs, two of a number in similar actions instituted against the defendant, a firm of attorneys, for damages arising from the loss of money, which they had paid to the defendant. The payments, made to the firm in terms of contracts of deposit concluded through the defendant's executive consultant (Cowan), were paid into accounts operated by and on behalf of PKF (Durban) Inc., a firm of chartered accountants and business advisers (PKF/the third party), rather than into the defendant's trust account. The defendant, who denied any knowledge of the scheme or that Cowan was authorised to represent it in entering into such agreements, filed a third-party notice in which it sought to hold PKF liable on the basis that, having known that Cowan was defendant's executive consultant, it was under a legal duty to have informed the defendant of the fact that Cowan was causing its accounts to be so operated but had failed to do.

[57]        PKF noted a number of exceptions to the third party notice, inter alia, that the facts alleged by the defendant were not sufficient to sustain the legal duty relied upon — one requiring positive conduct to avoid pure economic loss where no legal relationship, contractual or otherwise, existed between the defendant and the third party. Madondo J held that the pleaded facts justify the conclusion that the third parties owed the claimant a legal duty to inform the claimant of the operations of Cowan, and that their failure to do so was actionable (it being inter alia reasonable to impose such a duty on the basis of the following factors: the need to stem economic offences and noncompliance with the provisions of the Financial Advisory and Intermediary Services Act 37 of 2002).

[58]       In each case, Madondo J and Gorven J respectively, held on exception that the third party had a delictual duty to inform the attorneys firm of irregular transactions being concluded in its name.  The value to society of combating white-collar crime, which also finds support in the Constitution, was considered a relevant consideration.  As Gorven J stated at para 29: “…it would be contrary to public policy to exonerate the third party from speaking when it allowed its facilities to be used in what it believed to be an operation run by the defendant which was clearly being conducted in a manner inimical to the strictures of the legal profession of which the defendant is a part and where the defendant was placed at risk. Viewed objectively, society will take account of these factors and require such a legal duty to be imposed.”

[59]       Counsel for the plaintiff referred to a recent decision by this court (per Kathree-Setiloane J) Spar Group Limited v Absa Bank Limited.[21] In that case, the plaintiff, Spar, had claimed payment of R2 464 856.32 from the defendant, ABSA Bank Ltd (“Absa”) as a consequence of certain reversals of debit order payments effected by Absa which had previously been credited to Spar’s bank account held with First National Bank (“FNB”). The learned Judge concluded that where a bank has a discretion to reverse a payment, it has a legal duty to a beneficiary/payee of an EFT payment to verify, or to make enquiries, or to investigate, or to inform or report instructions given by its customer, which is particularly compelling where suspicious or unusual circumstances present give rise to a reasonable doubt about whether the instructions had been given lawfully and/or in good faith and/or for the reasons advanced by its customer. 

[60]       In awarding damages, the common law was developed to extend a legal duty to banks to avoid economic loss to third parties. Kathree-Setiloane J concluded that a reasonable banker would have verified whether the debit order instruction had in fact been cancelled. By requesting proof of its cancellation and pending verification of the veracity of the reversal instructions, Kathree-Setiloane J concluded that the bank (Absa) had a duty not to give effect to the instructions to reverse any of the transactions, in order to guard against the occurrence of foreseeable harm to Spar.

[61]       The decision whether an Aquilian remedy can be extended in the circumstances to cover the situation where the plaintiff finds itself involves the weighing and the striking of a balance between the interests of the parties and those of the community.[22]

[62]       In my view, all the authorities referred to above which Spar relies for its contentions are clearly distinguishable from the facts in casu. The public interest factor in both the Madondo and Gorven JJ judgments was quite evidently the curtailing of white-collar crimes. It is in the public interest that crimes of that nature be outrooted. In the Spar Group Limited v Absa Bank Limited matter, Absa had contravened its own regulations and those affecting other banks in authorising the reversals. Bearing in mind the legal approach referred to above, I hold a contrary view to that of counsel on behalf of Spar regarding the overall circumstances of this case. In the instant case, there were, it is common cause, repeated defaults by Rodtrade due to the dishonouring of debit order payments, each constituted a separate default. Spar had records of the dishonoured debit payments.

[63]       There were regular visits to the Claremont Spar undertaken by the retail operations manager of Spar to verify operational compliance. As Ms Farmer also testified, she visited the Claremont Spar store about six times a year, evidently precipitated by the poor running of the store. Ms Sithole regularly prepared “Executive Summaries” which reflected the total exposure of Rodtrade to Spar, including dishonoured payments and confirmed that the schedule reflected that various payments were dishonoured multiple times. Importantly, the SIGMA system provided Spar with full insight of the retailer’s purchase and sale of stock, as well as the amount owed by the retailer to Spar.

[64]       Equally important, in terms of the “reservation of ownership” clause in the Standard Terms, in the event of default by Rodtrade, Spar was entitled to re-possess sufficient goods to discharge any debt owed. Accordingly, the failure by Rodtrade to pay an amount on due date entitled Spar to terminate credit facilities with Rodtrade based on their existing contracts.

[65]       Considerations of public policy equally dictate that the relationship between a bank and its client must be of a confidential nature, unless, for considerations of public policy this duty is overridden by a greater public interest.[23] In Densam (Pty) Ltd v Cywilnat (Pty) Ltd,[24] the Court assumed (without deciding) that a bank is obliged to maintain secrecy and confidentiality about its customer’s affairs.[25]

[66]       There are no public-policy considerations or special circumstances in favour of any such extension of the common law in the present matter. This matter is distinguishable from the Madondo and Gorven JJ matters as the latter involved, amongst others, criminal transgressions. As Gorven J aptly puts it in Stols:

“A policy factor in favour of the recognition of liability arises from the case law and FICA concerning banks and the need for them to ensure that persons who open or operate accounts with them are properly authorised to do so. If a person whose account is being used knows that the account is being used in order to avoid the rigorous provisions to which he would otherwise be subject in opening an account, it is not unreasonable to expect the third party to notify the entity that the account is being used irregularly. There is clearly a need for vigilance on the part of people like the third party who allow others to use accounts under their control. This is because those persons would ordinarily be required to prove their authorisation and would, in addition, act in the interests of the entity in whose name they purport to operate.”[26]

[67]       There are no facts established to conclude or infer that Nedbank was in fact colluding with Rodtrade to enable it to defraud its creditors and in particular Spar. The interests that Nedbank had in the successful running of Rodtrade, were to my mind, not in any way different from what Spar had. Commercial interests evidently drove both of them. Spar was all along aware that Rodtrade had financial difficulties even before Nedbank perfected, but was willing to help Rodtrade overcome them. Logically, the motive was its financial gain.

[68]       Considerations of equity, fairness and policy militate in favour of a denial of the remedy. Accordingly, in my view, and as counsel for Nedbank also contended, Spar failed to establish that Nedbank was knowingly a party to the carrying on of the business of Rodtrade. The evidence before me does not support the submissions made on behalf of Spar taken singularly or cumulatively.  The evidence of its witnesses was entirely destructive of any suggestion that Nedbank was in any way a party to the carrying on of the business of Rodtrade. The evidence, properly construed, is that Nedbank continued to play its role as a banker, and that it was business as usual in as far as the running of Rodtrade was concerned.

[69]       In sum, evidently, Spar had a very close relationship with Rodtrade. Spar also exercised extensive control on the credit extended to Rodtrade. Given that Spar had a contractual entitlement to information at primary source, it assessed operational activity and had insight into purchases and sales by Rodtrade, it was placed in a better position than any creditor in terms of insight into the business of Claremont Spar. Accordingly, with due regard to the evidence and to the applicable legal principles, I concluded that the alleged omission of Nedbank on which Spar seeks to found its delictual claim was not wrongful. There was no legal duty owed to Spar emanating from the facts of the matter. Under these circumstances, I find that it was not reasonably foreseeable by Nedbank, as the banker of Rodtrade, that Spar would suffer loss in the event of Nedbank exercising its lawful rights to perfect its notarial bond. Accordingly, Claim C, the claim founded on delict stands to be dismissed.

Declaratory order (Claim E)

[70]       It is not in issue that Spar obtained a perfection order from this Court on 25 June 2013. It is also not in issue that that the perfection order was executed on 25 June 2013 when the Sheriff attached Rodtrade's movable assets at the retail store. The crux of this claim is that at the date on which Spar’s perfection order was executed, none of the movable assets that were attached were at that date lawfully possessed and or controlled by Nedbank pursuant to Nedbank having perfected its rights in 2011. It is common cause that Nedbank’s attorneys remain in possession of the proceeds in the sum of R200, 000.00 realised from the sale of the movable assets subsequent to the close of the store. Spar alleges that is entitled to a declaratory order confirming it to be a secured creditor concerning such assets.

[71]       It is well established that attachment pursuant to a general notarial bond operates to constitute a pledge over the assets in favour of the creditor or pledgee. A pledge is created by delivery of the asset(s) to the pledgee. However, the right of pledge is lost where the pledgee voluntarily allows another to take possession of the article for his own purposes. The pledge will remain unaffected where a third party exercises possession on behalf of the pledgee. In Vasco Dry Cleaners v Twycross[27] Hoexter AJA (as he then was) stated that:

"The only effective method of constituting a pledge is by agreement accompanied by delivery of possession of the article to the pledgee. Without such delivery of possession, while the pledge may be good as between the parties, the pledgee will lose his preference if a third party bona fide obtains real rights in the article pledged, or if a judgment creditor of the pledgor attaches the article pledged; or, should the pledgor be sequestrated in a concursus creditorum. Essential not only to the valid constitution of a pledge but also to its effective retention by the pledgee is natural possession of the article pledged by the pledgee.  From this it follows that although constructive delivery in the form of traditio brevi manu may suffice – subject to clear evidence that the transaction is bona fide - to constitute a valid pledge, there is no room for the application of the process of constitutum possessorium in the creation of a valid pledge in a situation in which the pledge article is to remain with the pledgor, to be used by the pledgor for his own benefit."             

[72]       In the instant case, after perfection, Nedbank did not take possession of the attached assets but allowed the assets to remain with Rodtrade, and to be used by Rodtrade. On Nedbank's version discerned from the pleadings, Van Vuren's agency terminated on the return day of the rule nisi, to wit, 21 April 2011. Spar argues that, if one accepts Nedbank's position that Van Vuren exercised possession on behalf of Nedbank pendente lite, then the pledge ended when Van Vuren's agency "expired ex lege at the time when the application was finalised on the return day."

[73]       The validity of Spar's perfection was not challenged during the proceedings or in closing argument. Accordingly, I find that Nedbank constituted no valid pledge. It follows that all of the assets attached by Spar on 25 June 2013 were in fact unencumbered and thus realisable for the benefit of Spar. It is therefore my conclusion that Spar has established its case on a balance of probabilities, for the relief sought in terms of Claim E.

 

[74]       ORDER

In the result, I make the following order:

1.    the plaintiff’s Claim B and Claim C are dismissed;

2.    the plaintiff’s Claim E is granted;

3.    subject to paragraph 4 below, costs of suit shall be paid by the plaintiff, including the costs of two counsel; the wasted costs associated with the abandonment of Claim A; and

4.    the costs referred to in paragraph 3  above exclude the reserved wasted costs occasioned by the postponement of the trial on 21 August 2015.

 

CUR.ADV. VULT (AFTERWARDS: 15 FEBRUARY 2021)

 

[75]       The parties filed further written submissions in response to the directive contained in paragraph 4 (Claim E) of the judgment delivered by the Court on 29 January 2021. The general rule is that costs follow the event or result. Plainly, the successful party should be awarded its costs. This Court however, retains an overriding discretion on costs under Rule 34 of the Uniform Rules.[28] Importantly, it was only at the close of its case that Spar abandoned claim A.  Spar did not formally tender costs in respect of claim A, and the costs order to be granted by the Court must consequently include an order that Spar pays all costs in respect of claim A. In the exercise of my discretion, Nedbank achieved substantial success in defending the claims and entitled to a costs order in its favour in respect of the costs of the trial relating to claim A, B and C.

[76]       In the exercise of my discretion, I do not find justification that any costs due by Spar to Nedbank have to be on a punitive scale. There are however, certain costs in this matter, which were reserved on 21 August 2015, resulting from a postponement of the trial. The reason for the postponement was the late production by Nedbank of certain documents, which might have been relevant. In my view, Nedbank ought to pay those costs. The wasted costs of 12 May 2017, when the trial was postponed, have already been awarded in favour of Spar.

 

[77]       Nedbank did not challenge the evidence tendered by Spar of and concerning claim E. It is common cause that on 8 May 2017, Nedbank’s attorney served a “without prejudice” tender (“the tender”) in terms of Rule 34 on Spar’s attorneys. Nedbank tendered to pay to Spar, in full and final settlement of claim E, the amount of R200,000.00, plus Spar’s taxed or agreed party and party costs in respect of claim E only, being the costs in respect of claim E with effect from 8 December 2016 to the date of tender (being 8 May 2017). The tender was made without prejudice as an offer of settlement of both claim E and the costs in respect of claim E.

[78]       In this instance however, the spatium deliberandi of 15 days, afforded by Rule 34(6), expired on 29 May 2017, well after the adjournment of the trial on 12 May 2017. Spar did not formally respond to the tender by the date of expiry of the 15-day period. Spar readily concedes that it may not be entitled to hold Nedbank liable for the costs of the continuing trial for a full period of 15 days but to a reasonable period to consider the tender as Nedbank submitted the tender on the eve of the trial. Previously, Claim E was in the alternative to Spar’s other claims until Spar delivered a notice of amendment on 11 March 2020. In my view, the period up to 10 May 2017, was reasonable for Spar to consider the tender by Nedbank.

[79]               ORDER (COSTS)

79.1       Spar is ordered to pay all costs of the action, including all reserved costs, save for:

a.      The reserved on 21 August 2015 and the wasted costs of 12 May 2017 which have already been awarded in favour of Spar;

b.      the costs referred to in paragraph 79.2 below; and

79.2        Nedbank is ordered to pay Spar’s costs in respect of claim E for the period 8 December 2016 to 10 May 2017.

T P MUDAU

Judge of the High Court

Gauteng Local Division, Johannesburg

 

Date of delivery: this judgment was prepared and authored by the Judge whose names appear, and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand--down is deemed 29 January 2021 (merit) and 15 February 2021 (costs) respectively.

 

Date of Hearing: 10, 11 and 12 May 2017, and on 26, 27 and 28 March 2018.

 

Date Argued: 28 September 2020

 

 

                       

Date of Judgment (Merit):                           29 January 2021

Date of Judgment (Costs):                          15 February 2021     

 

APPEARANCES

 

For the plaintiff:                                   Francois Strydom

 Robert Scholtz

Instructed by:                                    MOSS MARSH & GEORGIEV Attorneys

                                                                    

 

For the 1^st Defendant:                     Adv P T Rood SC

                                                         Adv J Killian             

Instructed by:                                    BALOYI SWART & ASSOCIATES

 

NO APPEARANCE FOR 2^ND AND 3^RD DEFENDANTS

 

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