About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 98
|
|
Prism Payment Technologies (Pty) Ltd v Altech Information Technologies (Pty) Ltd t/a Altech Card Solutions and Others (2010/38713) [2011] ZAGPJHC 98; 2012 (5) SA 267 (GSJ) (7 June 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
2010/38713
DATE:07/08/2011
In the matter between:
PRISM
PAYMENT TECHNOLOGIES (PTY) LTD
.................................
Plaintiff
and
ALTECH
INFORMATION TECHNOLOGIES (PTY) LTD
t/a
ALTECH CARD
SOLUTIONS
…..........................................
First
Defendant
ALTECH DATA (PTY) LTD
t/a
ALTECH CARD SOLUTIONS
….....................................
Second
Defendant
ALTECH
CARD SOLUTIONS (PTY) LTD
................................
Third
Defendant
BONFRER,
PETRUS ADREANUS
........................................
Fourth
Defendant
J U D G M E N T
LAMONT, J
:
[1] The fourth defendant in this matter has brought an application
against the plaintiff in terms of Rule 30(1) to set aside the
service
of a summons. The plaintiff albeit informally counterclaims
conditionally for condonation for non-compliance with the rules
to
the extent that the rules are found not to have been complied with.
[2] On 28 September 2010 the
plaintiff instituted action against four defendants claiming payment
as against such defendants which
were held liable of some R56,6
million and other relief. The Sheriff rendered returns reflecting
that on 29 September 2010 and
at Linbro Business Park, 11 Enterprise
Close, Sandton (“the service address) he had served the summons
and that such place
was the employment address of the fourth
defendant; that on 5 January 2011 and at the service address he had
served a letter on
the fourth defendant; that on 5 January 2011 and
at the service address he had served a copy of the summons and
particulars of
claim; that on 29 September 2010 at the service
address he had served a copy of the summons and particulars of claim.
[3] Each defendant individually
delivered a notice of intention to defend. The notice of intention
to defend for the fourth defendant
was delivered on 12 October 2010.
[4] The irregularity of which
the fourth defendant complains is that the service address is not his
employment address and hence
(ignoring other deficiencies in the
returns of service) the service of the summons was irregular.
[5] In terms of Rule 4(1)(a) of
the Rules service is to be effected by the Sheriff leaving a copy of
the process at the place of
employment of the defendant.
[6] Rule 30 affords a party to a
cause in which an irregular step has been taken by any other party
the right to apply to court
to set it aside.
[7] The Rule applies to assist a
party provided that the party:
has not taken a further step in the cause. The filing of an
appearance to defend does not constitute a further step;
within 10 days of becoming aware
of the step by written notice it has afforded the other party an
opportunity to remove the cause
of complaint; and
within 15 days after the expiry of the 10 days shall prosecute the
claim by way of delivery of the application.
The fourth defendant was late and seeks condonation. I am of the
view that condonation should be allowed because there is no prejudice
to the plaintiff. The fourth defendant could as well have raised the
complaint currently raised by way of a special plea hence
the fact
that he is late in the current context does not afford any prejudice
to the plaintiff.
[8] The court at the hearing (in
terms of Rule 30(3) of the Rules) is granted the power to set aside
the step in whole or in part
if it is irregular or improper and to
grant leave to amend or to make such other order as to it seems
appropriate.
[9] The fourth defendant brought
the application by way of notice. No affidavit was attached to the
notice. Inside the notice
the fourth defendant alleged that the
summons was not served as prescribed by Rule 4 in that the place of
employment of the fourth
defendant is not at the service address.
[10] The plaintiff’s
evidence was that the fourth defendant had resigned from the
plaintiff’s employ during or about
October 2007 and had then
taken up employment with either the first alternatively the second
alternatively the third defendant
after he had successfully
facilitated the transfer of certain business to the new employer.
[11] The plaintiff set out that a
similar summons to that forming the subject-matter of the present
matter was served on the fourth
defendant at the service address on a
person who was a “
HR
Practitioner
”
and that such place was the place of employment of the fourth
defendant. The fourth defendant entered an appearance to
defend that
action on 3 August 2010 being represented by the same attorneys who
currently represent him. The fourth defendant
did not take issue
with the service but raised instead an exception in terms of Rule
23(1).
[12] When the Sheriff attempted
to serve the summons by which the current action was instituted on
the fourth defendant at the registered
offices of the first, second
and third defendants he was advised by one De Villiers that the
fourth defendant was based at Linbro
Business Park. The plaintiff
believed that the fourth defendant was employed by “
Altech
Card Solutions
”
and sent its attorney to the reception desk at the service address,
that being the place of business of that entity. The
attorneys
representing the plaintiff entered the premises and requested the
receptionist to call the fourth defendant. They were
advised by the
receptionist that the fourth defendant was out and would only return
later in the afternoon. The receptionist pointed
to a notice board
which reflected the names of employees of Altech Card Solutions and
which indicated whether the employees were
“
in
”
or “
out
”.
The fourth defendant was reflected on the board as being out. A
copy of the Altron Group Products and Services Card for
October 2010
reflects the fourth defendant as being the General Manager
E-Security. The plaintiff was aware that an entity known
as Thales
played a role in the affairs of the fourth defendant and investigated
its web site. The Thales website reflects Altech
Card Solutions as a
partner and reflects the contact person as the fourth defendant of
“11 Enterprise Close, Linbro Business
Park, Sandton”
(“the service address”)
[13] The fourth defendant filed
a replying affidavit and in that affidavit set out that since October
2007 he had been employed
by the second defendant in its Altech Card
Solutions Division. Until December 2007 he was employed at the
service address. In
January 2008 he was transferred to the first
defendant and went to his current place of employment at 39 Galaxy
Avenue, Linbro
Business Park, some 1½ kilometres from the
other premises. The division of the first defendant which employed
the fourth
defendant remained in that place after the first defendant
left the building and went to carry on business at the service
address.
From December 2010 telephone calls were routed from the
first defendant’s offices at the service address to his place
of
employment. The reception is at the service address. It appears
that the gateway to the place where the fourth defendant’s
office is, is at the service address. The fourth defendant’s
submission was that while the fourth defendant at the time of
service
was employed by the first defendant whose business is at the service
address his
de facto
employment was 39 Galaxy Avenue. The rule so it was submitted
requires service upon the fourth defendant at the fourth defendant’s
place of employment which is not necessarily at the place where his
employer carries on business.
[14] The question which is to be
considered is whether or not if access to the fourth defendant’s
“
place of
employment
” is
to be gained by way of first gaining access at the place where the
employer carries on its business that results in his
place of
employment being there even if his office was some distance away. It
is apparent from the evidence that in order to gain
access to the
fourth defendant access must first be gained to the receptionist at
the service address where the employer carries
on its business. It is
at that place that telephone calls are received and routed to the
fourth defendant. It is at that place
that his receptionist sits. It
is at that place that he is designated as being in or out of office.
There is no evidence indicating
that access can be gained to the
fourth defendant otherwise than by first approaching the place where
service was effected.
[15] In my view the connection
which the fourth defendant has with the place of business of the
employer, the first defendant is
sufficiently close to render that
place as being his place of employ.
[16] The decision in
African
Guarantee and Indemnity Co Ltd v Mills NO
1955 (2) SA 522
(TPD) is distinguishable in that the service was at a
branch office which was disconnected from the registered office. In
the present
matter the place where service was effected is the
gateway to the place of employment of the fourth defendant.
[17] In the circumstances there
was service at the fourth defendant’s place of employment as
required by the rule.
[18] Even if I am wrong in the
aforegoing approach in my view there is no prejudice to the fourth
defendant by reason of the service.
Prejudice is a prerequisite for
success in the application (see
Superior
Court Practice Erasmus
B1-193 Note 9 where the authorities are collated).
[19] The fourth defendant
suffers no prejudice in the current proceedings.
[20] The service of the summons
was effective.
“
It
is cornerstone of our law that the defendant is entitled to notice of
proceedings. See Steinberg v Cosmopolitan National Bank
of Chicago
1973 (3) SA 885
(RA) at 892.
”
The fourth defendant received it
and was able to enter an appearance to defend. It is true as was
submitted on behalf of the fourth
defendant that the fact that he has
entered an appearance to defend does not interfere with his right to
attack the service. It
is equally true that the fact that he entered
an appearance to defend is indicative of the fact that he received
and has knowledge
of the summons and was able to defend it. The
inference to be drawn from this is that the service was effective.
[21] The purpose of Rule 4 is to
provide for a mechanism by which relative certainty can be obtained
that service has been effected
upon a defendant. If certain minimum
standards are complied with as set out in the rule then the
assumption is made that the service
was sufficient to reach the
defendant’s attention and his failure to take steps is not due
to the fact that he does not have
knowledge of the summons. The
converse is not true namely that if service is not effected as
required by the rule that the service
is not effective in that the
purpose for which service is required was fulfilled namely the
defendant came to know of the summons.
The rules as was pointed out
by Roux J (in
the
United Reflective
Converters (Pty) Ltd v Levine
matter
1988 (4) SA 460
(W)) set out procedural steps. They do not create
substantive law. Insofar as the substantive law is concerned the
requirement
is that a person who is being sued should receive notice
of the fact that he is being sued by way of delivery to him of the
relevant
document initiating legal proceedings. If this purpose is
achieved then, albeit not in terms of the rules, there has been
proper
service. In the present matter the non-compliance with the
rules accordingly does not result in prejudice to the fourth
defendant
as the purpose of the substantive law has been fulfilled
namely that he be given notice of the process.
[22] The facts in
Scott
and Another v Ninza
1999 (4) SA 820
(E) are similar to those in the present case. The
finding there was different in that it was held that the service was
irregular.
It was however held that condonation should be granted.
The reasoning in this judgment supports my reasoning (
supra
)
that condonation if the step is irregular is appropriate. Similarly
in
Federated Insurance
Co Ltd v Malawana
1986
(1) SA 751
(A) service at a branch office was condoned where service
should have been effected at the principal place of business there
being
no prejudice.
[23] It was submitted that if
service was irregular I should not grant condonation to the plaintiff
for its failure to comply with
the rules. This submission was
founded upon a submission that in doing so I would create in the
hands of the plaintiff a right
to defeat the claim that the service
of the summons did not interrupt prescription, service having taken
place. In my view it is
an improper approach to the question of
condonation to consider what effect it might have on claims which may
be pleaded in the
future and of which no detail is currently given.
In addition Rule 30 requires me to consider only whether the service
was as Rule
4 stipulates not whether the service was effective as
would have been considered as that would be required for the service
to interrupt
prescription. Had I formed the view that the service was
irregular I would have condoned the irregularity on the basis that
the
fourth defendant had knowledge of the summons and was able to
enter into an appearance to defend timeously. There should not be
a
rigorous and formalistic approach to the rules. The court should
take into account the true intention of the fairness of the
rules of
court and the realities of the situation. See
Protea
Assurance Co Ltd v Vinger
1970 (4) SA 663
(O),
Wiehahn
Konstruksie Toerustingmaatskappy (Edms) Bpk
v Potgieter
1974 (3) SA 191
(T);
Northern
Assurance Co Ltd v Somdaka
1960 (1) SA 588
(A) at 595.
[24] I raised with counsel the
issue of whether the use of Rule 30 was appropriate in the context of
considering an alleged irregularity
concerning service. I was
referred to a number of cases where this course was followed
including African Guarantee supra. The service
is only “irregular”
if the extraneous fact is established namely that service was not at
the place of employment. The
irregularity does not appear from the
steps taken. In addition if a service is set aside on the basis of
the irregularity no consideration
is given to the question of whether
or not the service was effective save perhaps in the condonation
application. The effectiveness
issue is not, in my view appropriately
decided as a condonation issue. It is the central underlying purpose
of the rule. On the
face of it a summons served in any manner but
which is served effectively is regularly served. Great injustice may
follow if the
service is set aside on the basis of irregularity
without applying the effectiveness test as it may then be argued that
prescription
has not been interrupted. In my view it is doubtful
that Rule 30 is the proper procedure to follow. By reason of my
finding
supra
there is no need to decide this issue.
[25] I would accordingly dismiss
the application with costs. The order which I make is:
Application
dismissed with costs.
_____________________________
C
G LAMONT
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Attorneys for
Plaintiff : Smith Sewgoolam Inc
Counsel for Plaintiff : D.C.
Fisher SC
Attorneys for Fourth
Respondent : Cowan-Harper Attorneys
Counsel for Fourth
Respondent : J.R. Peter SC
Date matter heard : 26 May
2011
Judgment date
: 7
June 2011