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[2021] ZAWCHC 35
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Technical Systems (Pty) Ltd v RTS Industries and Others (5288/2020) [2021] ZAWCHC 35 (1 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No: 5288/2020
In
the matter between:
TECHNICAL
SYSTEMS (PTY)
LTD
Plaintiff/Respondent
and
RTS
INDUSTRIES
First
Defendant/Excipient
C
QUIPTECH (PTY) LTD
Second
Defendant/Excipient
CGC
INDUSTRIES (PTY) LTD
Third
Defendant/Excipient
CHRISTIAAN
ARNOLDUS KURTZ
Fourth
Defendant/Excipient
CARL
WILLIAM RICHTER
Fifth
Defendant/Excipient
Coram:
Justice J I Cloete
Heard:
25 January 2021
Delivered
electronically:
1 March 2021
JUDGMENT
CLOETE
J
:
[1]
This is an exception brought by all 5
defendants to the plaintiff’s particulars of claim. The claims
advanced by the plaintiff
fall broadly into 3 categories, namely
interdictory relief, damages and contempt of court.
[2]
The exception is directed at those
pertaining to interdictory relief and damages and is formulated in
the following terms:
‘
1.
In paragraph 12 of its particulars of claim, Plaintiff pleads that
during 2014 it instituted application
proceedings against the first,
third, fourth and fifth defendants under case number 17470/14 for
interdictory relief, based upon
the misappropriation, by such
defendants, of its confidential information concerning the
manufacture of auger.
2. In paragraph 13 of
its particulars of claim, Plaintiff pleads that its application as
aforesaid
was amended to also include relief based on the
infringement of copyright in its drawings.
3. In paragraph 14 of
its particulars of claim, Plaintiff pleads that it obtained an order
in relation
to such application (“
the 2015 Order
”)
and a copy of such order is annexed to its particulars of claim as
“
POC 1
” thereto.
4. In paragraph 1 of
the 2015 Order it is stated that, and in any event, the 2015 Order is
in full
and final settlement of the aforesaid application and all
matters between Plaintiff and Defendants, arising from the issues in
dispute in such application.
5.
Plaintiff’s present claim as set out in, and
ex
facie
, the particulars of claim is,
(except insofar as it relates to allegations of contempt in relation
to the 2015 Order and the relief
sought in relation to such
allegations of contempt) a claim for the same relief on the same
grounds and against the same parties
as was determined in the
application and the 2015 Order.
6.
In the circumstances Plaintiff’s present claim (except insofar
as it relates to allegations
of contempt in relation to the 2015
Order and the relief sought in relation to such allegations of
contempt) was finally adjudicated
upon by a court of competent
jurisdiction and has accordingly been rendered
res
judicata
.
WHEREFORE
Defendants plead that Plaintiff’s claim
against Defendants (except insofar as it relates to allegations of
contempt in relation
to the 2015 Order and the relief sought in
relation to such allegations of contempt) be dismissed with costs,
including the costs
of two counsel.’
[3]
Nowhere in the exception itself is there
any allegation that the particulars of claim (“the pleading”)
is either vague
and embarrassing or lacks averments necessary to
sustain an action as required by uniform rule 23(1). No prior notice
was given
to the plaintiff to remove the cause of complaint as
stipulated in the aforementioned sub-rule, and it can therefore be
safely
accepted that the defendants do not suggest the pleading is
vague and embarrassing in any respect.
[4]
Also absent is any prayer that the
exception be upheld. Instead an order is sought dismissing the
plaintiff’s claims on the
merits (save insofar as they relate
to contempt).
[5]
In heads of argument filed on behalf of the
defendants the issue for determination was formulated as follows:
‘
The
question for adjudication is whether or not, apparent from the
pleadings
[sic]
,
the interdictory relief and damages claims set out in Plaintiff’s
particulars of claim are prohibited on the basis of the
principles of
res judicata.’
[6]
In
Lowrey
v Steedman
[1]
the plaintiff excepted to a plea on two grounds, only one of which is
relevant for present purposes, namely that it was impermissible
for
the defendant to plead a verbal agreement where a court had already
decided on an earlier exception that such a plea was incompetent.
The
trial court allowed the later exception without hearing any evidence.
On appeal it was held that this particular exception
was in reality a
special plea of
res
judicata
in support
of which it was necessary for evidence to be led. In the absence of
such evidence the appeal had to be upheld.
[7]
At 539 Solomon JA found as follows:
‘…
Now
the first exception is really a special plea of
res
judicata
in support of which it would be
necessary to call evidence. There is no such evidence, however, on
the record, and none apparently
was taken. Moreover we are informed
by Mr.
Burne
,
who appeared for the appellant, and who also argued the case for him
in the court below,
that not only
were the pleadings and the judgment in the previous case, which is
referred to in the so called exception, not put
in
but that no argument was heard upon the point. The Judge apparently
himself had knowledge of the previous decision, and held that
it
precluded him from considering the question again. But, whether that
is so or not, it is clear that the special plea of
res
judicata
could not be decided in favour
of the respondent
except upon
evidence in the court below to substantiate it
,
and as there is no such evidence in the record, the decision of the
court below allowing the first exception must be set aside.’
[emphasis supplied]
[8]
In Amler’s
Precedents of
Pleadings
[2]
the author, citing
Lowrey
as authority, states that as a matter of procedure ‘
although
known at common law as an
exceptio
,
the defence cannot be raised by way of exception but must be raised
in a plea or special plea’.
[9]
Lowrey
was followed in
Blaikie-Johnstone v
P. Hollingsworth (Pty) Ltd:
[3]
‘
In
the ordinary case, of course, the defence of
res
judicata
must be specifically pleaded
and supported by evidence of the previous judgment, and if it is not
pleaded the defendant is taken
to have waived it. (See
Voet
,
42.1.47 and 44.2.2;
Hoffmann
,
op. cit
.
at p. 241;
Caney
,
op. cit.
at
p. 101;
Lowrey v. Steedman
,
1914 A.D. 532
at p. 539)..
.’
[10]
It was also followed in
Hochfeld Commodities
(Pty) Ltd v Theron
:
[4]
‘
Die
verweer van
res judicata
moet
gepleit en bewys word. Isaacs
Beck’s
Theory and Principles of Pleadings in Civil Actions
5de
uitg op bl 164;
Lowrey v Steedman
1914
AD 532
op 539.’
[11]
In
Al-Kharafi
& Sons v Pema
[5]
it was held as follows:
‘
To
determine whether a matter is
res
judicata
the judgment
,
order and pleadings must be examined to determine whether a final
decision has been made. It is only when the same issue has been
decided that it can be said that the matter is
res
judicata
. An “issue” can
only be said to have been finally and definitively determined when it
has been fully canvassed by both
parties in the expectation of the
court pronouncing upon it…’
[emphasis
supplied]
[12]
In the instant matter the plaintiff has
annexed two orders to its particulars of claim. The one upon which
the defendants rely is
an order by agreement granted on 2 June
2015 in this Division under case number 17470/14 (“the
2015 Order”),
arising from opposed motion proceedings between
the plaintiff as first applicant, an entity known as Lavirco
Beleggings (Pty) Ltd
as second applicant, the first defendant as
first respondent, the third defendant as second respondent, the
fourth defendant as
third respondent, and the fifth defendant as
sixth respondent. It is common cause that no judgment was delivered
in relation to
the 2015 Order which could be examined by this court.
[13]
The second defendant was not a party to
those proceedings although the terms of that order purported to be
‘
in full and final settlement of
this application and all matters between
[the
parties thereto]
, including C Quiptech
(Pty) Ltd, arising from the issues in dispute herein’.
Moreover Mr Gary Colenbrander was cited therein as fourth
respondent and Mr Neil Theunissen as fifth respondent. As with
Lavirco Beleggings (Pty) Ltd, neither Colenbrander nor Theunissen are
parties to the current action on which the defendants’
exception is founded.
[14]
The 2015 Order is detailed and wide
ranging, comprising of 28 numbered paragraphs and 11 typed pages. In
certain portions obligations
are imposed upon all the respondents
thereto (thus including those who are not parties to the current
action); in others, obligations
are only imposed on the first
respondent (the first defendant in the present action). Similarly,
there is reference at times to
the rights and obligations of both
applicants in those proceedings, and at other times only to those of
the first applicant (or
plaintiff in the current proceedings).
[15]
It is trite that the onus rests upon the
party relying on
res judicata
to prove it. It is equally trite that the requirements for proof are
(a) a final and definitive prior judgment or order; (b) given
in litigation to which the current parties or their privies were
parties; and (c) the cause of action in both cases must be the
same,
and the same relief must, or may, have been claimed in both cases.
[16]
In the instant case,
ex
facie
the particulars of claim, one of
the parties (the second defendant) was not a party, properly
construed, to the previous motion
proceedings culminating in the 2015
Order. It is not possible to discern from the 2015 Order how the
second defendant fitted into
that litigation. The allegation in
paragraph 5 of the pleading that the fourth defendant is the sole
director of the second defendant
and ‘…
was
at all times relevant to the issues in these particulars of claim’
one of its directing minds, takes it no further.
[17]
In paragraph 12 of the pleading it is
alleged that during 2014 the plaintiff instituted application
proceedings against the first,
third, fourth and fifth defendants
under case number 17470/14 ‘…
for
interdictory relief, based on the misappropriation, by the
defendants, of its confidential information…’
.
The precise nature of that information (which is highly technical) is
not apparent from the pleading or the 2015 Order. The technical
nature of the information is demonstrated in the following paragraph
of that Order:
‘
4.
The Respondents recognise that First Applicant has a confidential
production process for the production of augers
consisting of an
inline process for the making of a high-tensile, flat steel wire from
flexible steel rod, wherein the steel rod
is ex-mill, as-rolled,
non-annealed and non-pickled and wherein the flat steel wire has a
fine martensitic structure with inclusion
of scale originating from
the steel rod.’
[6]
[18]
It is further alleged in paragraph 12 of
the pleading that during the course of that litigation the plaintiff
established the defendants
were in possession of a large number of
its technical drawings, which they were using for their own nefarious
purposes, and which
resulted in the plaintiff extending the ambit of
the relief it then sought to include that ‘…
based
on the infringement of the copyright in its drawings’.
[19]
Paragraph 10 of the 2015 Order interdicted
and restrained the respondents from infringing the plaintiff’s
copyright in its
artistic works ‘…
comprising
of its technical drawings as described the definition of the Works in
annexure “SA15” to Applicants’
Founding Affidavit
in the Application for Amendment and as discovered under the heading
Part 1 B: Confidential Discovery Document
Items 1 to 1179 (“the
copyrighted works”)…’
.
It is similarly not possible to discern from the pleading and the
2015 Order precisely what technical drawings fell within the
ambit of
that paragraph. This would of course be clear from the papers filed
in the prior motion proceedings, none of which (save
for the 2015
Order) are before me.
[20]
Accordingly therefore this Court is not in
a position to ascertain from the pleading itself whether the previous
cause of action
is the same as the present, and the same applies to
the precise nature of the relief sought.
[21]
Moreover the pleading goes further, and
deals in paragraph 16 with events which only came to the knowledge of
the plaintiff in September/October
2018, after it successfully
obtained a preservation (Anton Piller) order on 27 March 2017
(this is the second order annexed
to the pleading). Although some of
the plaintiff’s knowledge obtained subsequent to the 2015 Order
pertains,
ex facie
the pleading, to events pre-dating it, as a matter of logic the
relief currently sought in respect thereof could never have been
the
cause of action (or part of it) in the previous motion proceedings.
The plaintiff also alleges that other facts upon which
it relies (as
pleaded), i.e. a large number of the infringing works, only came into
existence after the 2015 Order.
[22]
It is therefore apparent,
ex
facie
the pleading, that the subject
matter of the claims in issue (i.e. interdictory relief and damages)
is different from those with
which the 2015 Order was concerned.
[23]
To my mind however, since the defendants
have adopted the incorrect procedure, it would be inappropriate and
premature to make any
findings in this regard. The defendants are at
liberty to raise a special plea of
res
judicata
in due course, and the matter
can then be fully canvassed through discovery and the leading of
evidence.
[24]
The plaintiff seeks a punitive costs order.
In the exercise of my discretion I do not believe that such an order
is appropriate.
The pleading under scrutiny is not a simple,
straightforward one and it is possible that the defendants have
misread it. While
there may be merit in the plaintiff’s
contention that the exception was deliberately brought to delay the
matter and/or avoid
discovery and evidence on the issue of
res
judicata
, I simply do not have enough
before me to warrant a conclusion that the approach adopted by the
defendants is an abuse of the court
process.
[25]
The following order is made:
“
The
defendants’ exception is dismissed with costs on the scale as
between party and party as taxed or agreed, including the
costs of
two (2) counsel as well as any reserved costs orders.”
_________________
J I CLOETE
[1]
1914 AD 532.
[2]
9ed at 315.
[3]
1974 (3) SA 392
(DCLD) at 395C-D.
[4]
2000 (1) SA 551
(OPA) at 566J-567A. See also
Hatfield
Town Management Board v Mynfred Poultry Farm (Pvt) Ltd
1963 (1) SA 737
(SR) at 739H.
[5]
2010 (2) SA 360
(WLD) at para [43], citing
African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977 (2) SA 38
(A) at 46A-47H;
Horowitz
v Brock and Others
1988
(2) SA 160
(A) at 179H-181I;
Rail
Commuters’ Action Group and Others v Transnet Ltd and Others
2006 (6) SA 68
(C) at 74Hff.
[6]
The
“CONFIDENTIAL ADDENDUM: THE CONFIDENTIAL PROCESS”
annexed to the pleading is similarly technical in nature.