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[2010] ZAGPPHC 598
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Milk South Africa v Homsek Ultra (Pty) Ltd (55379/2008) [2010] ZAGPPHC 598 (21 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
55379/2008
DATE: 21 MAY 2010
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MILK
SOUTH
AFRICA
.......................................................................................................................
Plaintiff
and
HOMSEK
ULTRA (PTY)
LTD
.........................................................................................................
Defendant
JUDGMENT
MAKGOKA.
J
:
[1] This is an
opposed application wherein the applicant seeks the respondent to
register with the applicant and comply with certain
ancillary
statutory obligations pursuant to such registration. I may state at
this stage that the respondent has, subsequent to
the launching of
this application, registered with the applicant. As a result, the
applicant only persists with ancillary prayers
relating to
maintenance of records, submission of returns and payments of levies.
[2] The applicant
has, in terms of section 14 of the Marketing of Agricultural Products
47 of 1996 ("the Act”) by notice
in the Government
Gazzette. been entrusted by the Minister of Agricultures to
implement, administer and enforce certain statutory
measures in the
diary industry wherein the respondent is a role-player.
[3] Section 19 of
the Act empowers the Minister to direct that any person/entity
mentioned with regard to an agricultural product
or class thereof
shall be registered. Any such person/entity so registered, shall keep
record and returns as may be specified with
regard to agricultural
products or classes thereof, and to direct that such records and
returns be furnished to the institution
such as the applicant.
[4] The present
application was initially launched against an entity described as
Homsek Dairies (Pty) Ltd. In the answering affidavit
deposed to by
Mr. Anton Homsek, the existence of such an entity was denied. This
resulted in an application for the amendment of
the name of the
respondent to Homsek Ultra (Pty) Ltd. The application for such an
amendment was unopposed, and the amendment was
granted.
[5] The effect of
such an amendment is interpreted divergently by the parties, and
could well influence the outcome of this application.
I find it
appropriate, at this stage, to set out what was sought, and granted.
In the notice of motion in the interlocutory application
for
amendment, the applicant sought, in the main, for the substitution of
Homsek Diaries (Pty) Ltd with the present respondent.
In the
alternative, the applicant sought that the name of Homsek Diaries
(Pty) Ltd be amended to Homsek Ultra (Pty) Ltd, the present
respondent. The court granted the latter alternative relief.
[6]
In opposing the application, three defences were raised in the
answering affidavit. First, that this court does not have
jurisdiction
to determine this application. Second, that the papers,
as amended, do not disclose a cause of action against the respondent.
Third,
that the regulations upon which the application is founded,
were superseded by new regulations. The defence on jurisdiction was
however, abandoned by Mr.
Acker,
for
the respondent, who confirmed that the respondent did not persist
therewith. I turn now to consider the two contentions on behalf
of
the respondent.
No cause of
action
[7] The argument
here is that, the non- existing entity, Homsek Diaries (Pty) Ltd,
having disappeared from the scene (as a result
of the amendment) and
replaced with the present respondent, the applicant had omitted to
aver that the present entity was in breach
of the statutory
obligations set out in the application. The said allegations, so goes
the argument, were made with reference to
Homsek Diaries (Pty) Ltd,
the previous non- existing entity, and not against the respondent.
[8] It is clear what
the import and effect of the amendment is: Homsek Ultra (Pty) Ltd
(the present respondent) for all intents
and purposes, came into the
shoes of the former respondent, Homsek Diaries (Pty) Ltd. Therefore
all allegations against, and reference
to Homsek Diaries, would, post
amendment, be in relation to Homsek Ultra, (the present respondent).
In my view, there is no merit
in this argument.
Regulations
superseded
[9] The applicant
relies on three sets of directives. For lack of a better description,
I would refer to them as “regulations”.
They are numbers
R1219, R1220 and R1221 published on 23 December 2005. The applicant’s
board of directors, in their resolution
to bring this application,
authorized the deponent to the founding affidavit, to institute legal
proceedings aimed at enforcing
the said regulations.
[10] On 3 January
2009, the said regulations were replaced by regulations 55, 56 and 57
respectively. It is therefore argued on
behalf of the respondent that
the applicant seeks to enforce regulations that already ‘'expired",
and so the argument
proceeds, the applicant seeks to enforce defunct
regulations. I do not agree with this submission. The application was
launched
in December 2008, and the regulations in force at that time,
were those published in 2005.
[11]
I understood Mr.
Acker's
argument
to be: the amendment resulted in a new course of action against the
present respondent. The amendment was granted in March
2009. The
effective regulations then applicable, would be the January 2009
ones. I have already found, with regard thereto, what
the effect of
the amendment is. This ground of defence should, similarly, fail.
[12] As indicated in
the introduction to this judgment, the main relief, as expressed in
prayer 1 of the notice of motion, has become
academic as a result of
the registration of the respondent with the applicant. The residuary
issue therefore, is one of costs.
[13] In that regard
I take into account three factors: first, that the registration of
the respondent was made subsequent to the
launch of the application,
albeit against a non-existing party. It should be kept in mind that
the sole director of the present
respondent, Mr. Anton Homsek is the
one who deposed to the answering affidavit. In the said affidavit,
not only did he address
the question of nonexistence of Homsek
Diaries, but went on to deal with the merits of the application. My
reading of his answering
affidavit is that he knew exactly that the
application was actually meant for Homsek Ultra. It is helpful to
quote from paragraph
15 of the answering affidavit:
"After service
of this application in 2008 I made contact with one of the members of
Applicant’s executive management,
Harry Hepton, in order to
discuss this application with the view to resolve same. Hepton
advised me that the applicant will not
proceed with this application
if Homsek (Pty) Ltd duly registers in terms of the Act and make
payment of the levies due. I accepted
the proposal, duly registered
Homsek (Pty) Ltd in February 2009 and made payment of the requisite
levies..."
[14]
It is clear from Mr. Homsek’s statement that the registration
of the respondent, was prompted by the application. In
this regard, I
agree with the submission of Mr.
Voster
SC,
for the applicant, viz, the fact that Mr. Homsek, the sole director
of Homsek Ultra, took steps to register it with the applicant
during
August 2009, justifies the inference that Mr. Homsek acknowledged
that Homsek Ultra was liable to registration in terms
of the Act, and
thus also to furnish returns and pay levies.
[15] Taking into
account all the consideration in this application, I am of the view
that the applicant has made out a proper case
for the relief set out
in prayers 2.1, 2.2 and 3, (in view of prayer 1 having falling off).
The respondent only commended business
on 14 September 2007. That
should be reflected in the order. The applicant has been
substantially successful. Its application prompted
compliance by the
respondent. There is no reason why costs should not follow the cause.
[18] I therefore
make the following order:
1. The respondent is
ordered to comply with the provisions of Regulation R1219 published
in the Government Gazzette No. 28329 of
23 December 2005, by:
1.1 maintaining the
records referred to in paragraph 2 of the schedule to regulation
1219, from September 2007; and
1.2 submitting to
the applicant in the manner set out in paragraph 4 and 5 of the
schedule to regulation 1219, within 15 (FIFTEEN)
days from the end of
the month in which this order is served upon respondent, the returns
for each month from September 2007 as
referred to in paragraph 4 of
the schedule to regulation 1219, and thereafter within 15 (FIFTEEN)
days of the end of each successive
month, subsequent returns.
2. The respondent is
ordered to pay to the applicant within 15 days from the end of the
month within which this order is served
upon respondent, the levies
prescribed in terms of Regulation 1220 published in Government
Gazette No. 28329 of December 2005.
calculated from September 2007,
in the manner as set out in the schedule to the said regulation 1220,
and thereafter with 15 (fifteen)
days of the end of each successive
month, subsequent levies.
3. The respondent is
ordered to pay the costs of the application.
T M MAKGOKA
JUDGE OF THE HIGH
COURT
HEARD ON: 11 MAY
2010
JUDGMENT
DELIVERED: 21 MAY 2010
FOR THE
APPLICANT: ADV J P VOSTER SC
INSTRUCTED
BY:
GILDENHUYS LESSING MALATJI
INC,
PRETORIA
FOR THE
RESPONDENT: ADV C ACKER
INSTRUCTED
BY:
RAUCH GERTENBACH ATTORNEYS,
BLOEMFONTEIN,
AND
R. SWAAK
ATTORNEYS
,
PRETORIA