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IN THE KWAZULU NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

Case Number: 16580/2009

CANNISTRARO INVESTMENTS 213 (PTY) LTD …...................................APPLICANT

and

LITTLE ROCK TRADING 45 CC ….............................................FIRST RESPONDENT

NEDBANK LIMITED …..............................................................SECOND RESPODENT

REASONS FOR THE ORDER MADE ON 3^RD AUGUST 2010

Ngwenya AJ:

Introduction

[1] This was an opposed motion matter. After hearing submissions by counsel on both sides I gave a ruling, dismissing the application with cost. I did not give any reasons for my ruling. The applicant has since asked for my reasons in terms of the Rules of Court. I furnish them below.

The Issues between the Parties

[2] Applicant sought an order in the following terms by way of motion:-

1. that the applicant be and is hereby directed to instate an action, alternatively arbitration against the first respondent for payment of the amount of R196 292-65 together with interest and cots, within thirty (30) days from the date of the grant of the final order herein;

2. that the first respondent be and is herby restrained and interdicted from withdrawing amounts up to the sum R196 292-65 together with interest at 15% per annum from 1 November 2009 to date of payment from the bank account held by the first respondent with the second respondent under account number 1489021620.

3. That the first respondent shall pay the costs of this application.

[3] In seeking the order above, the applicant had not instituted any action yet against the respondents but wanted as is evident from the facts at hand, that monies held by the first respondent with the second respondent be frozen until the dispute between the parties has been finally resolved.

Submission by Counsel

[4] Both counsel took the court through their written heads of argument. Mr. Combrinck for the applicant argues that seeing that the relationship between the bank and client where the account is on credit, is that of debtor and creditor, the monies so held constitute a debt by the bank to its client. He proceeds on this premise to say therefore first respondent’s account with the second respondent constitute a debt which forms part of all debts ceded to the applicant. In the circumstances he submitted that monies held in the account of the first respondent, if any, should not be released to him or any other person pendete lite.

Approach by the Court

[5] The approach by Mr. Combrinck is a novel one. Firstly, for any person to succeed in application for interdict, the normal requirements thereto must be met. These are that the applicant must establish a prima facie right, injury committed thereto and absence of satisfactory remedy. The presence of all these three requirements will guide the court in exercising its discretion.

[6] In approaching the facts at hand these requirements were always in my mind. The right which applicant claimed was being violated was that first respondent refused to pay for the goods supplied by the applicant to the first respondent. Simply put this is just an ordinary debt collection matter dressed otherwise. Furthermore, as I have said Mr. Combrinck’s approach is novel, he is not relying on the purchase and sale agreement which would be a more convenient thing to do. Instead he relied on a cession agreement, the validity of which is disputed. This dispute no doubt cannot be resolved on paper. Applicant cannot claim that it did not foresee a dispute arising.

[7] The dispute does not confine itself to the validity of the cession agreement. It also extends to the price of goods sold and delivered, the quantity thereof and who represented who in all those transactions.

[8] With regards to the account held by the first respondent with the second respondent, the former contends that this is the only account it has and what stood in its credit is the amount of R842-81. There is however an overdraft facility of R50 000-00. This assertion is not in dispute.

[9] Firstly, in so far as it pertains to prayer (a), it is the prerogative of every citizen or legal entity to institute legal proceedings against anyone if it so chooses. No leave of court should first be sought prior. Consequently the first prayer sought was of academic interest in the circumstances.

[10] With regards to the Rule nisi sought in my respectful view, it would create a bad legal precedent if the court were to grant an order which amounts to an execution without any prior adverse order against the respondent. In the present matter the applicant has not made out a case at least at prima facie level against the first respondent.

[11] The threat or violation of such right is likewise a subject of a serious dispute of facts. While no case is made out by the applicant about the absence or otherwise of alternative remedy, it remains curious that applicant sought an order restraining respondents from transferring or withdrawing an amount which does not exist. By this I mean the court cannot order the bank to retain an amount in someone else’s account which is not there. If the court made the order sought by the applicant, the only amount that could have been the subject of the order is the sum of R842-41 only. On the assumption that applicant met all the other requirements, the court would still have been left to speculate that at some stage monies do get paid to the first respondent’s account. Likewise the second respondent would have been left to manage the first respondent’s account. Once the amount required by the applicant together with interest has been reached, the account becomes operational again. It is undesirable for the court to grant orders of this nature.

Conclusion

[12] While I did not deem it necessary to decide whether the bank client relationship on these facts constitutes creditor/ debtor relationship, I think it apposite to make a passing comment here pertaining to this aspect of the case. It is undesirable for the court to give orders which are not specific, clear and understandable. If the facts of this case are anything to go by, the bank client relationship should not be lightly reduced to that of creditor/ debtor.

[13] Having considered all the above, I am satisfied that the application be dismissed with costs.

NGWENYA AJ

Date of Hearing : 03 August 2010

Date of Ruling : 03 August 2010

Date of Reasons : 15 October 2010

Applicant’s Representative : MR.COMBRINCK

Instructed By : MORRIS BOTHA INCORPORATED

Applicants Attorneys

C/O TATE & NOLAN INCORPORATED

15 Ennisdale Drive

Durban North

Ref: Ms T.L. Ludwig

Respondent’s Representative: MR. QUILAN

Instructed By : GCOLOTELA & PETER INCORPORATED

First Respondent’s Attorneys

294/296 Mathews Metiwa Road

Stamford Hill

Morningside

Durban

Ref: Mr Peter/md/

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