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
>>
2019
>>
[2019] ZAGPJHC 323
|
|
Akshardham (Pty) Ltd v JSR 108 Investments CC and Others (3128/17) [2019] ZAGPJHC 323 (16 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
no: 3128/17
In
the matter between:
AKSHARDHAM
(PTY)
LTD
Plaintiff
and
JSR
108 INVESTMENTS
CC
First
Defendant
CITY
OF
JOHANNESBURG
Second
Defendant
REGISTRAR
OF DEEDS,
JOHANNESBURG
Third
Defendant
LOURO
& TIAGO
INCORPORATED
Fourth
Defendant
Case
Summary
: Practice –
Pleadings – Summons – Service – Uniform Rules of
Court, rule 4(1)
(a)
- Process not served as required by r 4(1)
(a)
– Effective service of summons constituting regular service
regardless of the manner thereof and the non-compliance with
the
Uniform Rules of Court becomes irrelevant.
JUDGMENT
MEYER
J
[1]
The plaintiff, Akshardham (Pty) Ltd (Akshardham), claims specific
performance of a written agreement of sale of an immovable
property
(the deed of sale) from the first defendant, JSR 108 Investments CC
(JSR), and, in the alternative, an order directing
the sheriff
to perform all acts necessary on behalf of JSR and directing the
fourth defendant conveyancing attorneys, Louro &
Tiago Inc.
(L&T), to deduct from the purchase price and to pay to the
sheriff all fees, expenses or disbursements as may be
required in the
performance of such acts. No relief is claimed against the
second defendant, the City of Johannesburg (the
City), or the third
defendant, the Registrar of Deeds.
[2]
On 3 September 2015, JSR and Akshardam concluded the deed of sale in
terms of which Akshardham purchased from JSR Erf 439 Parkwood
Township, Registration Division I.R., Province of Gauteng, measuring
1 179 square metres (the property) for a purchase price of
R6 million
payable against transfer. Akshardam paid the full purchase
price into L&T’s trust account during November
2015, and it
tendered to comply with its other obligations arising from the deed
of sale. Transfer of the property could
not be passed due to
the fact that JSR failed to obtain a clearance certificate from the
City. Akshardham’s attorneys
of record, Webber Wentzel,
addressed a letter dated 24 October 2016 to JSR wherein a demand was
made on behalf of Akshardham for
it to remedy its breach. By
letter dated 15 November 2016, JSR’s attorneys of record,
Moodie & Robertson, responded
to the Webber Wentzel letter on
behalf JSR. Therein it was contended that the deed of sale was
void
ab initio
for reasons that are not presently relevant.
[3]
JSR refused to pass transfer of the property to Akshardham.
Hence the present action. The combined summons commencing
the
action was issued on 31 January 2017. JSR entered an appearance
to defend the action on 14 February 2017. In due
course, on 13
December 2017, it caused a pleading to be filed, which pleading
embodies a so-called ‘SPECIAL PLEA’ and
a plea over to
the merits. It now persists only with its special plea in
which it seeks the dismissal of Akshardham’s
claim on the
ground that the summons commencing the action had not been served
upon it. The special plea reads thus:
‘
1. Uniform Rule 4(1)
(a)
(v),
peremptorily prescribes that a summons commencing action shall, in
the case of a corporation or company, be served by delivering
a copy
to the responsible employee thereof at its registered office or its
principal place of business within the court’s
jurisdiction, or
if there be no such employee willing to accept service, by affixing a
copy to the main door of such office or
place of business, or in any
manner provided by law.
2. The summons commencing action was
served on 3 February 2017, in terms of Uniform Rule 4(1)
(a)
(v),
at 160 Johan Avenue, Raslouw Agricultural Holdings, Centurion,
purportedly at the registered address of the first defendant.
3. At all material times hereto, the
registered address of the first defendant was 44 Dudley Rd, corner
Bolton Road, Rosebank, Johannesburg
(“registered address”).
4. The plaintiff’s summons
commencing action was not served at the registered address.
5. Service of the summons, commencing
action, has accordingly not been effected upon the first defendant.
WHEREFORE
the first defendant prays that the plaintiff’s claim be
dismissed with costs.’
[4]
Akshardham delivered a replication to the special plea, which reads
as follows:
‘
1. Ad paragraph 5
1.1 The contents of this paragraph are
denied.
1.2 The summons was served by the
sheriff at the first defendant’s sole member’s
residential address.
1.3 At the time of service of the
summons, the first defendant was represented by Moodie &
Robertson Attorneys. The summons
was sent electronically to the
first defendant’s attorneys of record, who acknowledged receipt
thereof.
1.4 The summons came to the first
defendant’s knowledge.
1.5 The first defendant entered a
notice of intention to defend on 14 February 2017.
1.6 The first defendant served a
notice in terms of Rule 23(1) on 17 March 2017 and delivered an
exception on 24 April 2017.
1.7 The first defendant elected not to
raise the purported defective service by way of Rule 30 as an
irregular step or to except
to the summons on the basis of the
alleged defective service.
1.8
The object of service is to bring the summons to the attention of the
first defendant and the object of the Rule has been fulfilled.
1.9
The first defendant suffered no prejudice in the furtherance of its
case.’
[5]
JSR delivered a rejoinder to the replication. It reads:
‘
1. AD PARAGRAPHS 1.3, 1.4, 1.5
AND 1.6
1.1 The First Defendant admits the
contents of these paragraphs.
1.2
The First Defendant joins issue with the Plaintiff in respect of the
other allegations contained in the plaintiff’s replication.
WHEREFORE
the First defendant persists in its plea.’
[6]
In response to JSR’s notice in terms of r 37(4) of the Uniform
Rules of Court, Akshardham admitted that the summons commencing
action was served on 3 February 2017 in terms of r 4(1)
(a)
(v)
at 160 Johan Avenue, Raslouw Agricultural holdings, Centurion (the
Centurion address), purportedly at the registered address
of JSR,
that on the date of service of the summons at the Centurion address,
both the registered address and the principal
place of business of
JSR were situated at 44 Dudley Road, corner Bolton Road, Rosebank,
Johannesburg and that the summons commencing
action was not served at
JSR’s registered address or principal place of business.
Akshardham, however, persisted in
its averment that the summons was
served at JSR’s sole member’s residential address.
[7]
In accordance with the legal maxim
audi
alteram partem
every person is entitled to be
heard before an order is granted against him and ‘this explains
why our courts meticulously
enforce the requirement that an opponent
should be notified timeously of the steps taken against him, and that
he should be given
an opportunity of replying to the case stated
against him, and of placing his own version before the court’.
(Stephen
Peté
et al Civil Procedure A
practical Guide
Oxford University Press,
Southern Africa.) ‘It is a corner-stone of our legal
system that a person is entitled to notice
of legal proceedings
instituted against him.’ (See
Steinberg
v Cosmopolitan National bank of Chicago
1973
(3) SA 885
(RA) at 892B-C.) ‘Although an action is
commenced when the summons is issued the defendant is not involved in
litigation
until service has been effected, because it is only at
that stage that a formal claim is made upon him.’ (
Per
Wessels JA in
Marine
and Trade Insurance Co Ltd v Reddinger
1966
(2) SA 407
(A) at 413D.)
[8]
The Uniform Rules of Court provide for different methods of service
of any process of the court directed to the sheriff or of
any
document initiating application proceedings. Service on a
corporation or company is, in terms of r 4(1)
(a)
, to be
effected-
‘
by delivering a copy to a
responsible employee thereof at its registered office or its
principal place of business within the court’s
jurisdiction, or
if there be no such employee willing to accept service, by affixing a
copy to the main door of such office or
place of business, or in any
manner provided by law’.
[9]
In
Prism Payment Technologies v Altech information Technologies
2012 (5) SA 267
(GSJ) at 271H-272A, Lamont J said the following
about the purpose of r 4:
‘
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 have been 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, 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
United Reflective Converters (Pty)
Ltd v Levine
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.’
[10]
The plaintiff in
Consani Engineering (Pty) Ltd v Anton Steinecker
Maschinenfabrik GmbH
1991 (1) SA 822
(T) had obtained leave to
sue the defendant by way of edictal citation. The order
concerned authorised service by means of
facsimile transmission and
granted the defendant 10 days to file its notice of intention to
defend. The plaintiff sought
summary judgment and the
defendant, in turn, brought an application to set aside as an
irregular step in terms of r 30(1) the edictal
citation issued by the
plaintiff and/or the service of such edictal citation, contending
that the service authorised by the court
was in conflict with the
Uniform Rules of Court and that allowing it only 10 days to enter an
appearance to defend breached the
provisions of s 27 of the Supreme
Court Act 59 of 1959. There, Goldstein J held as follows
(824F-H):
‘
It seems to me, however, that,
once a defendant has entered appearance to defend as it has done in
the present matter, non-compliance
with the Rules as to service and
with s 27 becomes irrelevant. The purpose of service in terms
of the rules is to bring the
edictal citation to the attention of the
defendant and the purpose of s 27 is to ensure that such defendant
has sufficient time
to defend it if it so wishes. Both of these
objectives having been achieved and the particular statutory
provision and Rule have
been exhausted.
[11]
In
First National bank of SA Ltd v Ganyesa Bottle Store (Pty) Ltd
and others; First National Bank of SA Ltd v Schweizer
Drankwinkel
(Pty) Ltd and another
1998 (4) SA 565
(NC), Horn AJ
rejected ‘the submission that service of a summons becomes
unnecessary for the purpose of applying for summary
judgment if a
defendant, having acquired ‘knowledge’ of the fact that a
summons has been issued (but not served) citing
him as a defendant,
has entered an appearance to defend, and then withdraws his
defence.’ It was held that-
‘
[m]ere “knowledge”
of the issue of a summons is not service and a plaintiff is not
relieved of his obligation to follow
the prescribed Rules.’
[12]
In LTC Harms
Civil Procedure in the Superior Courts
Students’
Edition Third Edition para B4.1 it is stated:
‘
When proceedings have begun
without any notice, the subsequent proceedings are null and void and
may be disregarded or set aside
at the option of the other party.
However, if the initiating document such as the summons was served
incorrectly, the subsequent
proceedings are not void, but may be
voided: the summons may be set aside as an irregular step
although the court may condone
the irregularity.’
(Footnotes
omitted.)
[13]
Service
in casu
was effected by means of the sheriff on 3
February 2017 affixing a copy of the combined summons to the main
door of premises that
were found locked and
ex facie
the
return considered to be JSR’s registered office (it now being
common cause that the premises were neither its registered
address
nor principal place of business), and by means of electronic
transmission on 13 February 2017 to JSR’s attorneys
of record,
Moodie & Robertson, who had already represented JSR in the
dispute concerning the transfer of the property to Akshardham
at the
time of such transmission. Service of the combined summons,
therefore, was not effected in a manner as required by
the Uniform
Rules of Court. This conclusion, however, is not the end of the
enquiry. As was held in cases such as
Consani
and
Prism
,
effective service of a summons constitutes regular service regardless
of the manner thereof and the non-compliance with the Uniform
Rules
of Court then becomes irrelevant.
[14]
This is not a case where the proceedings have begun without notice or
where there was mere ‘knowledge’ of the issue
of the
summons. The summons was served incorrectly and the subsequent
proceedings are, therefore, not void as JSR would have
it. It
is common cause that the summons came to JSR’s knowledge and
that it entered an appearance to defend the action
on 14 February
2017, which was the next day after the incorrect service had been
effected upon its attorneys of record. It
thereafter delivered
an exception to the combined summons, which was argued and dismissed,
whereafter it filed its special plea
and plea and later on also a
rejoinder. It filed discovery affidavits, participated in the
pre-trial procedures and presented
its defence to Akshardham’s
claim at the trial of this action. The ineluctable
inference to be drawn from the
common cause facts is that the methods
of service employed by Akshardham were effective and that the object
or purpose of service
has been achieved, albeit not in terms of the
Uniform Rules of Court. The summons was delivered to the
attorneys representing
JSR in the matter, who acknowledged receipt
thereof, and it came to JSR’s knowledge. JSR has been
afforded, and has
utilised, the opportunity to be heard. There
has thus been proper service and the non-compliance with the Uniform
Rules of
Court becomes irrelevant.
[15]
Finally, the matter of costs. No good grounds exist for a
departure from the general rule that costs follow the event,
in other
words that the successful party should be awarded its costs.
Akshardham as the overall successful party is clearly
entitled to its
costs. What has to be considered though, is Akshardham’s
request that costs should be awarded on the
scale applicable as
between attorney and client. The parties have not, in terms of
the deed of sale, agreed to such a costs
order in the event of
litigation between them nor is an award of attorney and client costs
lightly granted in the exercise of a
court’s discretion
relating to an appropriate order as to costs. This, in my view,
is not one of those ‘rare’
occasions where a deviation
from the ordinary rule that the successful party be awarded costs as
between party and party, is warranted.
(See
LAWSA
Vol 3
Part 2 Second Edition para 320.)
[16]
In the result the following order is made:
(a)
The first defendant’s special plea is
dismissed.
(b)
The first defendant shall take all the necessary
steps and sign all the necessary documents to pass transfer of Erf
439 Parkwood
Township, Registration Division I.R., Province of
Gauteng, measuring 1 179 square metres in extent and held under deed
T1483/2001
(the property) to the plaintiff.
(c)
The sheriff is authorised to take such steps and
sign all such documents on behalf of the first defendant as may be
required to
give effect to paragraph (b) of this order, if the first
defendant fails to take any required step or sign any required
document
within 5 days of written demand.
(d)
The fourth defendant, or any other attorneys
attending to the transfer of the property to the plaintiff, are
authorised and directed
to deduct from the purchase price, and to pay
to the sheriff, all fees, expenses or disbursements as may be
required or incurred
by the sheriff in giving effect to paragraph (c)
of this order.
(e)
The first defendant is to pay the costs of suit.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing:
13 March 2019
Date
of judgment:
16 September 2019
Plaintiff’s
Counsel:
Adv HC Bothma
Instructed
by:
Webber Wentzel, Sandton, Johannesburg
First
Defendant’s Counsel:
Adv T Ohannessian SC
Instructed
by:
Moodie & Robertson, Rivonia, Johannesburg