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[2015] ZASCA 101
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Uti South Africa (Proprietary) Limited v Triple Option Trading 29 CC (20157/2014) [2015] ZASCA 101 (3 June 2015)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 20157/2014
DATE: 03 JUNE 2015
Not Reportable
In the matter between:
UTi SOUTH AFRICA (PROPRIETARY)
LIMITED
....................................................
APPELLANT
And
TRIPLE OPTION TRADING 29
CC
...........................................................................
RESPONDENT
Neutral citation: UTi South Africa v
Triple Option Trading (20157/14)
[2015] ZASCA 101
(3 June 2015)
Coram:Maya, Shongwe, Leach, Zondi
JJA and Gorven AJA
Heard: 21 May 2015
Delivered: 3 June 2015
Summary: Prescription –
extinctive prescription
– whether the appellant’s
amendment had introduced a cause of action which had become
prescribed – no new cause
of action introduced – claim
not prescribed. Special plea of lack of jurisdiction correctly
dismissed.
ORDER
On appeal from: Gauteng Division of the
High Court, Johannesburg (Masipa J and Bashall AJ sitting as court of
appeal):
1 The appeal is upheld with costs.
2 The cross-appeal is dismissed with
costs.
3 Paragraph 17 of the order of the
court a quo is set aside and replaced by the following:
‘17.1 The appellant’s
appeal against the magistrates’ court order upholding the
special plea of prescription is
upheld with costs.
17.2 The order of the magistrates’
court is substituted with the following order:
“Both special pleas are dismissed
with costs.”’
JUDGMENT
Zondi JA (Maya, Shongwe, Leach JJA
and Gorven AJA concurring):
[1] This appeal, which is with the
leave of the Gauteng Division of the High Court, Johannesburg (Masipa
J and Bashall AJ), concerns
a special plea of prescription together
with the costs order against the appellant. The cross-appeal, which
is also with the leave
of the court a quo concerns a special plea of
jurisdiction. These issues arose in the following circumstances.
[2] On 14 March 2007 the appellant sued
the respondent in the Germiston Magistrates’ Court claiming a
sum of R274 786,70.
This amount was alleged to have been the
outstanding balance for certain customs clearing, forwarding and
export agency services
rendered and disbursements incurred by the
appellant on behalf of the respondent from time to time, during the
period 15 January
2005 to 16 May 2006, pursuant to various
agreements. The appellant annexed to its particulars of claim the
customs clearance letter
of authority (‘the letter of
authority’); certain standard trading conditions and various
invoices. Properly construed,
the agreements for services rendered at
the instance and request of the respondent were reflected in the
invoices annexed. The
paragraph dealing with this was introduced by a
number of paragraphs which were largely superfluous and, if anything,
rendered
the particulars vague and embarrassing. Further particulars
that were delivered by the appellant to the respondent in response to
the latter’s request for further particulars revealed that the
two documents put up by the appellant in support of some of
the
superfluous averments indicated an agreement concluded in 2004 with
Pyramid Freight (Pty) Ltd (Pyramid Freight) and not the
appellant.
Further particulars also revealed that the appellant had, in fact, on
6 December 2004 bought Pyramid Freight’s
business assets and,
in terms of the sale agreement, had acquired all contracts to which
Pyramid Freight was a party, which existed
before 1 August 2004.
[3] In the mistaken belief that its
cause of action arose from the 2004 agreement between Pyramid Freight
and the respondent, the
appellant amended its particulars of claim on
22 July 2009 to reflect that the agreement was concluded between
Pyramid Freight
and the respondent and that the appellant had derived
its rights from this agreement when it purchased Pyramid Freight.
This was
incorrect. The agreement between the respondent and Pyramid
Freight related to contracts which arose prior to 1 August 2004.
Those
on which the appellant sued were variously concluded between 15
January 2005 and 16 May 2006. The appellant and the respondent were
direct parties to these agreements. They had nothing to do with
Pyramid Freight. The amendment to the pleadings was therefore an
exercise in futility. It replaced irrelevant averments with
alternative averments that were equally irrelevant to its claim.
[4] The respondent filed a special plea
in which it contended that the appellant’s cause of action in
the amended particulars
of claim had prescribed. It alleged that a
debt for which the appellant sued became due and payable during the
period 15 January
2005 to 16 May 2006. The respondent accordingly
contended that the amendment introduced a new cause of action which
prescribed
on 17 May 2009.
[5] The second special plea raised by
the respondent was that the magistrates’ court did not have
jurisdiction to determine
the action. In support of that special
plea, the respondent referred to clause 36 read together with the
non-variation clause of
the standard trading conditions (clause 33)
of the agreement with Pyramid Freight which it contended excluded it.
Its contention
was that the effect of clause 36 was to confer
exclusive jurisdiction on the high court. This clause provided that
the respondent
consented to the ‘non-exclusive jurisdiction’
of the high court in which Pyramid Freight’s head office was
situated.
[6] These two special pleas were set
down separately and argued in the magistrates’ court before any
other issues. The magistrates’
court upheld both the special
pleas. It upheld the special plea of prescription on the basis that
the appellant’s cause of
action under the original summons was
for payment of the sum of R274 786.70 for services rendered by it to
the respondent in terms
of various agreements entered into between
the appellant and the respondent. Under the amended particulars of
claim the appellant’s
cause of action was based on various
agreements entered into between Pyramid Freight and the respondent.
The magistrates’
court accordingly held that the right sought
to be enforced in the amended particulars, was a different right. For
that reason,
it held that the amendment introduced a new cause of
action which had prescribed by the time it was introduced by way of
amendment.
It held that the service of the original summons did not
interrupt the running of prescription on the new cause of action.
[7] In upholding a special plea of
jurisdiction, the magistrates’ court held that clause 36 of the
standard trading conditions
of Pyramid Freight, on which the
appellant claim was founded, ousted the jurisdiction of the
magistrates’ court. In the absence
of a proper consent in terms
of
s 45
of the
Magistrates’ Courts Act 32 of 1944
it did not
have jurisdiction to hear the matter.
[8] On appeal, the court a quo
dismissed the appeal on the special plea of prescription and
confirmed the magistrates’ court
order upholding the special
plea. But it upheld the appeal on the special plea of jurisdiction
and set aside the magistrates’
court order upholding the
jurisdiction point and substituted it with one dismissing the special
plea on jurisdiction. The appellant
appeals against the order that
its claim had prescribed while the respondent cross-appeals against
the order dismissing its plea
of lack of jurisdiction.
[9] Counsel for the appellant submitted
that the finding by the court a quo, that the appellant in its
amendment had introduced
a new cause of action, was wrong. He argued
that the right which was sought to be enforced both in the original
particulars of
claim and in the amended particulars of claim was the
same. I agree.
[10] Properly construed, the
appellant’s claim as set out in the original summons issued on
14 March 2007 is for payment of
the sum of R274 786.70 being the
balance outstanding for services rendered and disbursements incurred
by the appellant on behalf
of the respondent at the latter’s
special instance and request during the period 15 January 2005 to 16
May 2006 pursuant
to a series of agreements. Those services and
disbursements were not rendered and incurred under the agreement
between the respondent
and Pyramid Freight, the terms of which are
irrelevant to the pleadings. The claim was at all times for payment
for services rendered
at the special instant and request of the
respondent under contracts concluded between it and the appellant. As
is set out in the
invoices, these were to be in terms of the
appellant’s standard conditions of contract.
[11] I did not understand counsel for
the respondent to have disputed that proposition in argument. He took
issue with the fact
that the invoices sent to the respondent fail to
stipulate the date on which the alleged services were rendered and
the nature
of those services. That contention is, however, untenable
if regard is had to the fact that each invoice bears the appellant’s
name, sets out the date on which the respondent’s shipment
arrived in Durban and the date on which each invoice was generated.
And those dates fell within the period 2005 to 2006. Summons was
issued in March 2007 well before the claims had prescribed. There
is
therefore no merit in the special plea of prescription.
[12] With regard to the special plea of
jurisdiction, which is the subject of the cross-appeal, counsel for
the respondent submitted
that the court a quo erred in dismissing it.
He argued with reference to clause 33 (non-variation clause) and
clause 36 of the
agreement that the parties had agreed that the high
court would have exclusive jurisdiction to determine all the disputes
arising
from that agreement irrespective of the quantum involved. The
second leg of his argument was that the quantum of the appellant’s
claim in any event, exceeds the jurisdiction of a magistrates’
court as to that amount.
[13] But this presupposes that the
Standard Terms and Conditions of Pyramid Freight govern the
agreements between the parties. They
clearly do not do so. The debate
as to the meaning of clause 36 is therefore irrelevant. As to the
second point, the invoices are
pleaded as being separate contracts.
None of the amounts claimed in any invoice exceeds the jurisdiction
of the magistrates’
court. The appellant was entitled to bring
the action in the magistrates’ court. For these reasons the
cross-appeal should
fail.
[14] In the result I make the following
order:
1 The appeal is upheld with costs.
2 The cross-appeal is dismissed with
costs.
3 Paragraph 17 of the order of the
court a quo is set aside and replaced by the following:
‘17.1 The appellant’s
appeal against the magistrates’ court order upholding the
special plea of prescription is
upheld with costs.
17.2 The order of the magistrates’
court is substituted with the following order:
“Both special pleas are dismissed
with costs.”’
D H Zondi
Judge of Appeal
Appearances
For the Appellant: A G Sawma SC
Instructed by: Wright, Rose-Innes
Inc, Bedfordview c/o Phatshoane Henney Attorneys, Bloemfontein
For the Respondent: J P Spangenberg
Instructed by: Vally Chagan &
Associates, Fordsburg c/o Christo Dippenaar Attorneys, Bloemfontein