As if last week Tuesday in court wasn't enough, the nine days that have followed were an escalation of intensity - physical, emotional and mental. I'll take you through last week.
Wednesday, 7 September 2022
On Wednesday, the day after we appeared in court, my attorneys sent a letter to the sheriff's office demanding their final account reconciliation following the auction of the factory assets that took place at the end of July by the close of business the next day.
After an auction has taken place, the sheriff draws up documents showing the lot numbers that were for sale, who purchased them and for how much. This gives the total income from the auction sale of the Judgement Debtor's assets. They then calculate their expenses for organising the auction, advertising it, their commission, any opening-and-closing of the building and even storage of items. This comes off the total income and the balance is paid over to the Judgement Creditor, in this case the landlord. The Sheriff's documents include the Distribution Award, which details the income recovered, expenses and payout. The balance outstanding on this was only R806 - after a payout of R1m.
These documents were issued a week after the auction; but it took us a further two weeks to get our hands on them with nothing forthcoming from either the sheriff's office or the landlord's attorney and nothing sent to the Judgement Debtor, the factory company, either. I physically visited the sheriff's office a number of times, I emailed too and my attorneys emailed both the sheriff's office the landlord's attorney. Nothing.
After an auction, when the warrant has been satisfied, all items under attachment should be released. This wasn't happening. As customers of the factory with our assets under attachment - for nine weeks by that stage, it was in our interests to push for getting these documents.
While we continued to try to get finalisation from the sheriff, the landlord began contacting the customers of the factory to say that he was starting his own kayak moulding company and that he wanted to discuss manufacturing and marketing. All this while holding on to our assets under lock-and-key and having issued us with a summons to appear in court to defend our claim to our assets. We received the summons three weeks after the auction, for which he got paid out the money - to the tune of R1-million that he had claimed. That he bought the factory's primary assets - well, that was his choice.
In the days before our court appearance, the landlord sent letters to most of the customers saying that he had issued instruction to his attorney to release their assets. To Vagabond, he sent a letter telling of his plans for his new kayak factory and threatening "an expensive and long-lasting process" involving Vagabond in his attempt to recover new expenses that he is claiming from the factory. He aimed to recover these debts by seizing Vagabond's assets unless Vagabond "puts an acceptable alternative on the table". Keep in mind here that the factory was his tenant and Vagabond is a customer of the factory. Separate legal entities and all that.
Thursday, 8 September 2022
Thursday morning dawned with a notice from the landlord to remove everything that was not disputed by 13h00 the next day from the factory.
In a separate section of the factory, we have had around 100 kayaks (most not mine) waiting for container loading. The global shipping crisis is still in effect and getting bookings can take weeks.
These kayaks, and others that had been dispatched since the building contents were attached, form part of a list of orders that were given permission for release in mid-July. When we got this permission back then, we started looking at container bookings and by some miracle got a confirmed booking for one container to Europe that following week; this rarely happens. This was when the landlord reneged on this agreement and locked the doors the day before container loading. After no action from them, we initiated an urgent High Court application that night - and won with costs. We loaded that container. Days later they appealed, wanting us to recall the container and unload it. We won again with costs.
The High Court order forced their hand to re-confirm release of the remaining items on the order list. We got another container out in August. The kayaks for the last two container loads have been sitting as we are struggle to get confirmed shipping bookings.
In addition to the kayaks waiting for shipping, other undisputed items now also included the moulds for the two overseas customers and the fittings for the one. There were also my YOLO moulds, packaging and fittings. This is a lot of stuff to move.
I had arranged the day before to meet the sheriff at the factory on this Thursday afternoon to extract my YOLO stock and fittings. He recommended that I contact the guy across the road from the factory who has some space. This was nice of the sheriff - he hasn't done much in our favour this whole time.
I called the guy and met him briefly but as he didn't have his keys, we didn't see the space. We were to meet with him the next morning. I successfully removed my YOLO items, leaving the heavy moulds for the next day.
Before close of business, we received the final accounts from the sheriff. The amount outstanding on the warrant? Just short of R13,000.
There are a few things to consider here:
After the auction, there was R806 outstanding. I'm not entirely sure how this works but the sheriff should have requested balance of payment from the Judgement Debtor, the factory, to settle this. Nothing. They hung on to documents and hung on to assets. The sheriff's costs would have increased over the five weeks since the auction with coming out to the building top open up, which goes on the landlord's account. I don't know what the other costs were.
In court, two days before, the landlord's attorney had stood up to say that he thought there was around R24,000 outstanding. This was after being sent away by the magistrate to work on his sums (you'll see an explanation of this in my previous post). They had the audacity to take us customers of the factory to court, to make us prove our claim of ownership of our assets, without even knowing how much was owed to them by the factory (not us!) following the auction. It costs multiples of R24,000 just to appear in court. And then the final amount - accumulated since the auction was held - was 'only' R13,000.
After holding our assets for just over 11 weeks and five week after the auction, all it would take to release everything would be to pay the factory's debt. I issued instruction to my attorneys to make the payment.
Friday, 9 September 2022
I met the across-the-road guy early in the morning to see his space. At this stage, we didn't have any option and across-the-road, when you have 15 moulds weighing 200-400kg to move, 100-odd kayaks and other stuff, is the best place to move things. The only problem with this place is that the guy is charging an excessive rate and we've only got the space short-term for two weeks. Right then, we needed to buy space and time.
With four workers, a forklift (thank you to our friends for their driver and forklift) and a big trailer, it took us 10 hours to move the moulds for the two overseas guys and the 100-odd kayaks waiting for container loading across the road; and all of the USA guy's kayak fittings to my storage garage. I moved my YOLO box stock, on pallets, across the road too (temporary - we were running out of time in the day), and my moulds to a tank moulder in town who will be making my YOLO products.
On Friday morning, Vagabond paid R15,000 (R13,000 amount outstanding and extra R2000 for what would be sheriff fees). This immediately satisfied the warrant and released everything under dispute.
When my attorney called me, I was packing the USA guy's fittings into the garage. I called Celliers and told him to start getting Vagabond's moulds. He told the sheriff who, instead of calling his boss to whom payments and paperwork had been sent, he phoned the landlord. The sheriff started locking the building. The landlord rocked up.
I've only seen him twice, I think, since this ordeal started. He brings out the worst in me. He treats me is contempt and disregard; and so I respond to this. It is a bit school-ground where he will waggle a finger in my face and I do the same back to him. I can’t help myself.
We still had the situation at hand to deal with and so much stuff to move. Fortunately, at 16h00, the four workers from Parys showed up to help. They have been doing odd work for the landlord, like cleaning his new building. They won't like it, but it is work. Other friends showed up with their open bakkie to shuttle loads of kayaks across. We finished at 18h00, 10 hours after we started. I dropped off all the workers at their homes and crawled home.
I've been enjoying my weekends recently because, unlike these week days that unleash surprises and emergencies, the two days of the weekend come with no attorney letters and demands. I use weekends to recover to face the week ahead.
Where this week included a court appearance followed by demands, deadlines, high pressure, drama and long hours, the next week - this one we've just made it through - would follow the same trend.
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