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[2010] ZAGPPHC 73
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Chater v Cooper NO and Another (49155/09) [2010] ZAGPPHC 73 (27 July 2010)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 49155/09
DATE:
27/07/2010
in
the matter between:
GARY
BRIAN CHATER PLAINTIFF
CHAVONNES
BADENHORST SINCLAIR COOPER N.O.
1
st
DEFENDANT
HENDRIE
ANDRIE MARAIS N.O.
2
nd
DEFENDANT
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
1.1
In this matter the Plaintiff issued Summons against the Defendants
claiming an order that the Defendants be directed to:
1.1.1
make payment to the Plaintiff of the amount of R3 090 000,00,
interest thereon at 15,5% per annum and costs; and
1.1.2
admit the Plaintiff's claim against Chater Developments.
1.2
The Defendants have:
1.2.1
given notice of intention to defend, and thereafter;
1.2.2
noted two exceptions to the Plaintiff's particulars of claim, in
essence being that: -
1.2.3
the Plaintiff's claim against the Defendants, as cited, is bad in law
in that such claim could only be against Chater Developments
Itself,
alternatively
that same lacks averments necessary to sustain a cause of action
("the
first exception");
and
1.2.4
the relief sought against the Defendants is incompetent,
alternatively
that same lacks averments necessary to sustain a cause of action
("the
second exception").
1.3
The exceptions were previously enrolled for hearing on 11 November
2009 on an unopposed basis. Shortly prior to the hearing
the
Plaintiff served a notice of intention to amend seeking to delete
paragraph 4.2 of its particulars of claim.
1.4
On the day of the previous hearing the Plaintiff opposed the
exceptions, sending counsel to Court in order to seek a postponement
of the matter. His Lordship Mr Justice Louw granted the postponement
and reserved costs.
1.5
As is clear from the Respondents' heads of argument and as I have
been informed by counsel:
1.5.1
the second exception as defined by the Defendants in their heads of
argument do not need to be addressed as the Defendants
are aware of
the fact that the Plaintiff has filed an amendment deleting paragraph
4.2 of the simple summons which addresses such
second exception.
1.5.2
Since this matter is identical to case numbers 49154/09 and 49156/09,
I should only give judgment in this matter and the other
two matters
should follow the same result.
1.6
This exception essentially turns on the question as to whether the
Plaintiff has correctly cited the Defendants in its action
against
Chater Developments (Pty) Ltd (in liquidation) ("the Company")
based on monies lent and advanced to the Company
prior to its
liquidation.
[2]
THE
LAW:
2.1
It is trite law that an exception is a complaint against the
way
in which a pleading has been framed. Where a matter is decided on
exception, there are two relevant considerations. The first
is that
the Defendants have to show that the Plaintiff's particulars of claim
is excipiable on every interpretation that can reasonably
be attached
to it.
The
second is that the Plaintiff is confined to the facts alleged in the
particulars of claim.
2.2
It is thus trite law that the excipient bears the onus.
2.3
Both counsel have referred me to various authorities which are not
necessary to repeat.
2.4
In the case of
The
Master v Stuart 1981(2) SA 472(E),
Smaiberger
J at 474D-F stated:
"Any
action by a creditor against a company in liquidation would he an
ordinary
}
illiquid
action to prove his claim against such company. The action would lie
against the company in liquidation represented by
its liquidator in
the present instance, the second defendant. (See
Bendeman
v Bendemans Trustee
1939 CPD 377V
.
The
Second Defendant was the liquidator of the company and the Plaintiff
claimed to be a creditor thereof.
2.5
Smaiberger J went on to say the following at 474G - H:
"The
decision in
Swaanswyk
Investment (Pty) Ltd v The Master and Another NO 1978(2) SA 267 (C),
to which we were referred in argument, does not affect the conclusion
to which I've come. It merely confirms the rights of the
creditor of
the company in liquidation to prove his claim in a court of law, but
does not specifically deal with the question against
whom the action
lies. It does not follow from the fact that the Master was a party to
the action, and apparently did not except
to his being joined as
such, that he was correctly joined in the proceedings. It is not
apparent from the judgment what precise
allegations were made against
the Master and what relief was sought against him. The decision does
not detract from the well recognised
principle that any action
against a company in liquidation lies against the liquidator of such
company."
2.6
In
Jo
well v Bramwell-Jones and Others 1998(1) SA 836
(W)
at 903A - B
Heher
J. as he then was, stated:
"A
distinction must be drawn between the facta probanda, or primary
factual allegations which every Plaintiff must make, and
the facta
probanda, which are the secondary aliegations upon which the
Plaintiff will rely in support of his primary factual allegations.'''
2.7
In
McKenzie
v Farmers Cooperative Meat Industries Ltd
1922 AD 16
at 23
it
was held that "cause of action" means:
"Every
fact which it would be necessary for the Plaintiff to prove, if
traversed, in order to support his right to the judgment
of the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved."
[3]
ARGUMENT:
3.1
The Plaintiff argues that the Defendants' reliance upon
Umbogintwini
Land and Investment Co (Pty) Ltd (in Liquidation) v Barclays National
Bank Ltd and Another 1987(4) SA 894(A)
and
Barlows
Tractor Co (Pty) v Townsend 1996(2) SA 869(A)
is
misplaced. Those cases (so the argument goes) merely confirm that a
creditor of a liquidated company has to courses open to him
to
recover his debt. One is to institute legal proceedings. The other is
to prove his claim against the estate. These rights co-exist
and are
not mutualiy exclusive. The said cases do not support the Defendants'
proposition that the creditor, in instituting action,
is confined to
citing
"the
company (in liquidation) as represented by its duly appointed
liquidator"
as
opposed to the
liquidator
nominee officio in his capacity as duly appointed liquidator of the
company (in liquidation)."
3.2
If one look at the sequestrations, or estates, it is normal
practice
to cite the curator in his official capacity as the curator of the
insolvent or deceased estate.
[4]
CONCLUSION:
4.1
In view of the aforegoing, i am not convinced that the exception
should succeed, either on merits or in that the Defendants
have met
the onus.
4.2
As far as costs are concerned, the Defendants were partiy successful
in that the second exception was conceded by the Plaintiff.
Pertaining to the costs previously reserved, it is clear that the
Plaintiff should be held liable for same.
4.3
In view of the aforegoing, I make the following order:
4.3.1
The exception is dismissed;
4.3.2
The Defendants are to pay 50% of Plaintiff's costs on party and party
scale;
4.3.3
The Plaintiff is to pay the costs of the Defendants which were
reserved on an opposed party and party scale.
GOODEY
AJ