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[2013] ZASCA 129
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Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others (741/12) [2013] ZASCA 129; 2013 (6) SA 499 (SCA); [2013] 4 All SA 509 (SCA) (26 September 2013)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 741/12
REPORTABLE
In the matter between:
CAESARSTONE SDOT-YAM LTD
........................................
APPELLANT
and
THE WORLD OF MARBLE AND GRANITE
2000 CC
........................................................................
FIRST
RESPONDENT
OREN SACHS
........................................................
SECOND
RESPONDENT
MATITYAHU SACHS
..............................................
THIRD
RESPONDENT
AMIR SHALOM SACHS
.....................................
FOURTH
RESPONDENT
ALON SACHS
............................................................
FIFTH
RESPONDENT
AVIV SACHS
.............................................................
SIXTH
RESPONDENT
Neutral citation:
Caesarstone Sdot-Yam Ltd v The World of
Marble and Granite CC
(741/12)[2013] ZASCA 129 (26 September
2013)
Coram:
MTHIYANE AP, MAYA, THERON et WALLIS JJA et VAN DER
MERWE AJA
Heard
: 16 September 2013
Delivered
: 26 September 2013
Summary:
Defence of
lis alibi pendens
–
requirements – defence available whenever a plea of
res
judicata
would be available from decision in other action –
immaterial that party raising the plea is the plaintiff in the other
proceedings
– exercise of discretion – court’s
inherent power to regulate its proceedings.
ORDER
On
appeal from:
Western CapeHigh Court
(Blignault J sitting as court of first instance):
(a) The appeal is
upheld with costs, such costs to include those consequent upon the
employment of two counsel.
(b) The order of the
court below is set aside and replaced by the following order:
‘1 The special
plea of
lis alibi pendens
in relation to the first and second
plaintiffsis upheld with costs, such costs to include those
consequent upon the employment of
two counsel.
2 The special plea of
lis pendens
is dismissed in relation to the third to sixth
plaintiffs.
3 The Plaintiffs’
action under WCHC Case No 10053/08 is stayed pending the final
determination of the action instituted by
the Defendant against the
First and Second Plaintiffs in the Magistrates’ Court, Haifa,
Israel, under Case No A22497/07.’
JUDGMENT
WALLIS JA (MTHIYANE AP, MAYA and THERON JJA and VAN DER MERWEAJA
concurring)
[1]
The issue in this appeal is a preliminary question whether litigation
commenced in Israel by the appellant, Caesarstone, justifies
the stay
of an action commenced by the respondents against Caesarstone in the
Western Cape High Court, in accordance with the doctrine
of
lis
alibi pendens
.On 27 December 2007,
Caesarstone instituted an action against the first respondent, to
which I will refer as WOMAG, and the second
respondent, Mr Oren
Sachs, before the Magistrates’ Court, Haifa in Israel. In June
2008, WOMAG and the members of the Sachs
family, namely, Mr Oren
Sachs, his father (the third respondent) and his three brothers (the
fourth to sixth respondents)instituted
an action in the Western Cape
High Court against Caesarstone. Both actions arose out of the same
agreement. Caesarstone’s
response to the Western Cape action
was to deliver a dilatory plea of
lis
alibi pendens
asking that the action be
stayed pending the final determination of the action it had
instituted in Israel.The parties agreed that
this plea should be
disposed of separately and to that end agreed a statement of facts
for the purposes of its adjudication. Blignault J
dismissed the
plea and refused leave to appeal. The appeal is before us with leave
of this court.
[2]
As its name indicates, a plea of
lis
alibi pendens
is based on the
proposition that the dispute (
lis
)
between the parties is being litigated elsewhere and therefore it is
inappropriate for it to be litigated in the court in which
the plea
is raised. The policy underpinning it is that there should be a limit
to the extent to which the same issue is litigated
between the same
parties and that it is desirable that there be finality in
litigation. The courts are also concerned to avoid
a situation where
different courts pronounce on the same issue with the risk that they
may reach differing conclusions. It is a
plea that has been
recognised by our courts for over 100 years.
1
[3]
The plea bears an affinity to the plea of
res
judicata
,which is directed at achieving
the same policy goals. Their close relationship is evident from the
following passage from
Voet
44.2.7:
2
'
Exception
of
lis pendens
also
requires same persons, thing and cause.
-The
exception that a suit is already pending is quite akin to the
exception of
res
judicata,
inasmuch
as, when a suit is pending before another judge, this exception is
granted just so often as, and in all those cases in
which after a
suit has been ended there is room for the exception of
res
judicata
in terms
of what has already been said. Thus the suit must already have
started to be mooted before another judge between the same
persons,
about the same matter and on the same cause, since the place where a
judicial proceeding has once been taken up is also
the place where it
ought to be given its ending.'
[4]
That passage was adopted and approved by De Villiers CJ in
Wolff
NO v Solomon
3
and
the requirements it spelled out for reliance on the plea have been
reiterated on several occasions. For example, in rejecting
a
contention that proceedings before the Advertising Standards
Authority and those before the Registrar of Patents warranted the
invocation of the principle,Nugent AJA in
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
.
4
said:
'There is room for the application of that principle
only where the same dispute, between the same parties, is sought to
be placed
before the same tribunal (or two tribunals with equal
competence to end the dispute authoritatively). In the absence of any
of
those elements there is no potential for a duplication of
actions.'
[5]
WOMAG and the Sachs family contended that the litigation in Haifa was
not between the same parties as that in South Africa;
that the cause
underpinning the two actions was different; and, that the relief
being sought was also different. They contended
that none of the
requirements for the successful invocation of
lis
pendens
were satisfied. Blignault J
accepted these submissions. Accordingly he did not address the
question whether he should in any event
have refused a stay of the
Western Cape action in the exercise of his discretion.
[6] Caesarstone contends that Blignault J erred. It contends that the
litigation in Israel is between it and WOMAG and Mr Oren
Sachs,
representing the Sachs family, and that the express citation of Mr
Oren Sachs’s father and brothers in the Western
Cape
proceedings does not alter the identity of the litigating parties in
the two actions. Alternatively it contends that there
is a sufficient
commonality of interest between Mr Oren Sachs and the other family
members to satisfy this requirement. Second
it contends that the
substance of the causes of action in the two actions is the same
because in both the central issue relates
to the circumstances in
which the agreement between the parties that gives rise to the
dispute came to be terminated. Third it
says that the relief being
sought by the parties in the two actions (restitution by Caesarstone
and damages by WOMAG and the Sachs
family) is that which flows
directly from the resolution of that central issue. In order to
consider these contentions it is first
necessary to deal with the
facts.
The facts
[7] Caesarstone produces and markets quartz panels for use in the
building industry. The panels are used in various environments,
such
as offices, kitchens and bathrooms, for counter tops, wall coverings
and surrounds for domestic appliances such as baths.
From 2004 WOMAG
had been its agent,responsible for the distribution of its products
in South Africa. That situation was changed
in terms of the agreement
that gives rise to the present litigation in Israel and South Africa
to which I will refer as ‘the
agency agreement’.
[8] The agency agreement was concluded on 21 September 2006. It
records that it is a declaration of principles applicable to the
appointment of WOMAG and the Sachs family, represented by Mr Oren
Sachs, as the sole agent in the territory of South Africa for
quartz
surface products under the brand name of Caesarstone. On signature of
the declaration of principles the existing distribution
agreement
between WOMAG and Caesarstone would terminate and Caesarstone would
appoint a new distributor for its products in South
Africa.
Thereafter a detailed agreement based on the declaration of
principles was to be signed covering two periods of five years
each,
with a possible further extension of five years on condition that the
agent fulfilled its obligations under the detailed
agreement. Under
the detailed agreement WOMAG would receive a commission on the FOB
price of all sales made by Caesarstone to the
newly appointed
distributor. In return for this commission it would act as
Caesarstone’s marketing advisor and representative,
promoting
its brand and products, assisting and overseeing the distributor. In
addition WOMAG had the right in its own name to
purchase slabs from
Caesarstone – presumably for the purposes of its own business –
in which event a commission would
be paid to the Sachs family.
Although the agency agreement does not spell this out the particulars
of claim in the Western Cape
litigation say that the Sachs family in
terms of the agency agreement consists of Mr Oren Sachs, his father
and his three brothers.
[9] The claim document in the action before the Haifa Magistrates’
Court sets out the agreement and those of its terms that
Caesarstone
regard as important for its cause of action. It alleges that since
the conclusion of the agency agreement WOMAG and
the Sachs family
have failed to fulfil their obligations under the agreement and acted
in a way that has created friction with
Caesarstone’s nominated
distributor. On those grounds Caesarstone contends that the agreement
was cancelled and lapsed in
December 2007 and seeks an order to that
effect and repayment of monies paid to WOMAG and the Sachs family in
terms of the agency
agreement.
[10] In their particulars of claim in the Western Cape action WOMAG
and the Sachs family plead the conclusion of the agency agreement
and
identify those terms they regard as central to their claims, in which
the remuneration provisions feature prominently. They
allege that
Caesarstone repudiated the agreement on 26 December 2007 by
unlawfully contending it was entitled to cancel the
agreement and
commencing proceedings in Israel based on such cancellation. They
plead that they accepted this repudiation and that
as a result the
agency agreement came to an end in January 2008. The particulars of
claim then set out their respective claims
for damages.
[11] It follows that the claims in both actions revolve around the
agency agreement, the manner in which it was performed (or not
performed, as the case may be) by the parties and the circumstances
of its termination. In order to adjudicate on the respective
claims
of the parties, whichever court or courts undertake that task, it
will be necessary to determine whether Israeli or South
African law
governs the agreement; to consider the manner in which the parties
conducted themselves pursuant to the agency agreement;to
determine
whether there were, as alleged, defaults by either party; and, if so,
the consequences of those defaults. At the end
of the day it will be
necessary to decide whether Caesarstone was entitled to treat the
agency agreement as having lapsed or to
cancel it on 26 December
2007. If not, it will be necessary for the court to decide whether
their conduct in purporting to
cancel it constituted a repudiation of
the agreement that has been accepted and gives rise to the claims for
damages advanced by
WOMAG and the Sachs family.
Analysis
[12]
Voet
said
that there are three requirements for a successful reliance on a plea
of
lis pendens
.
They are that the litigation is between the same parties; that the
cause of action is the same; and, that the same relief is sought
in
both. In
Hassan & another v Berrange
NO
,
5
Zulman
JA expressed these requirements in the following terms:
'Fundamental
to the plea of
lis
alibi pendens
is
the requirement that the same plaintiff has instituted action against
the same defendant for the same thing arising out of the
same cause.'
That
statement highlights a possible difficulty in the way of Caesarstone.
Because it is the claimant in the Israeli action and
the defendant in
the Western Cape action, this is not a case of the same plaintiff
instituting action against the same defendant.
In addition the cause
of action, whilst revolving around the same central issue, is
necessarily different – in the one case
based on a lawful
cancellation of the agency agreement and in the other on a
repudiation of that agreement – as is the relief
sought. If the
statement by Zulman JA is definitive of the scope of the plea of
lis
pendens
it is fatal to Caesarstone’s
case.
[13]
In their heads of argument both sides said, without addressing the
problems mentioned in the preceding paragraph, that it was
not
necessary, for a plea of
lis pendens
to succeed, that the party raising the plea should
be the defendant in both sets of proceedings. In saying this they
both relied
on a judgment of Milne J in
Cook
& others v Muller
.
6
However,
the full implications of this approach werenot explored.The court
asked for argument on the correctness of that judgment
and whether it
was consistent with the requirements of the plea as set out in the
judgments of this court. In response to this
request we heard full
argument from counsel, with Mr Rose-Innes SC, for Caesarstone,
contending that
Cook
was
correctly decided and Mr Hodes SC, for WOMAG and the Sachs
family, contending that it was wrong.
[14] There is a clear conflict between the statement in
Hassan &
another v Berrange NO
that the same plaintiff must have
instituted action against the same defendant, and the conclusion by
Milne J in
Cook
that:
‘…
[I]t is quite clear that it is not
necessary in order to raise a plea of
lis
alibi pendens
that
the person raising it should have been the defendant in the other
proceedings.’
Which of these views is correct?
[15] In
Cook
an action was brought against Muller in the
magistrates’ court based on three dishonoured promissory notes.
Muller pleaded
that he was suing Cook and his co-plaintiffs in the
Supreme Court for damages for breach of the underlying contract under
which
the promissory notes had been issued and that this action was
still pending. He alleged that he had legitimately stopped payment
of
the promissory notes by virtue of the breach of the underlying
contract. He accordingly contended that the action in the
magistrates’
court should be stayed pending the determination
of the Supreme Court action. The magistrate dismissed an exception to
this plea
and the subject of the appeal was whether he was correct to
do so.
[16]
The appellants in
Cook
argued
that only a person who was the defendant in both actions could
properly raise a plea of
lis pendens
.
Milne J recognised that no binding decision had previously been
given on this point. He referred to
Wolff
NO v Solomon
,supra, where the defence
of
lis pendens
was
raised in Cape proceedings on the basis of an action in the
Witwatersrand High Court, in which Wolff had raised essentially
the
same claim by way of a counterclaim. However, that did not address
the problem confronting him, because a counterclaim is a
separate
claim joined and disposed of, for the sake of convenience and
judicial economy, in an existing action. Accordingly Wolff
was in
reality the plaintiff in both sets of proceedings, so far as the plea
of
lis pendens
was
concerned. Therefore this decision did not, as he apparently thought,
support his conclusion. However, it was not the only reason
he gave
for that conclusion.
[17]
Of greater relevance was the finding that, if Muller succeeded in his
action in the Supreme Court, he would be able to raise
a defence of
res judicata
to
any claim based on the promissory notes. Milne J cited the passage
from
Voet
quoted
in para 3 above,and the statement by Greenberg J in
Marks
and Kantor v Van Diggelen
7
that:
‘
It
is clear from
Voet
,
44.2.7, that the requisites of the defence of
lis
pendens
and
res
judicata
, in
relation to the identity of the issue and parties, are the same.’
He went on to adopt Greenberg J’s view that the defence of
res
judicata
is cognate to the plea of
lis alibi pendens
so
that the latter plea must succeed where a plea of
res judicata
could successfully be raised after the conclusion of the first
action
.
In his view, if Muller succeeded with his claim for
damages, he could raise a plea of
res judicata
against Cook’s
claims.Therefore, he held that the magistrate had correctly rejected
the exception to Muller’s plea.
[18] The pleas of
res judicata
and
lis pendens
are
undoubtedly cognate pleas and it follows that the elements required
to establish the one are the same as the elements required
to
establish the other. As
Voet
said in the passage quoted above
concerning
lis pendens
‘this exception is granted just
so often as, and in all those cases in which after a suit has been
ended there is room for
the exception of
res judicata
’.
It is therefore necessary to decide whether Milne J was correct to
say that on the facts in
Cook
Muller could have raiseda plea
of
res judicata
had he been successful in his claim for damages
in the Supreme Court.
[19] A strict application of the three requirements for that plea
would generate a negativeresponse. If the party raising
res
judicata
had been the plaintiff in the earlier litigation, that
would necessarily mean that the cause of action and the relief sought
in
the later proceedings, where the plea was being raised, differed
from the cause of action and the relief in the earlier proceedings.
This is illustrated by the facts in
Cook
. In the Supreme
Court, Muller was claiming damages for breach of the underlying
agreement. His cause of action was based on the
agreement and its
breach. In the magistrates’ court, Cook and his co-plaintiffs
were seeking to recover the face value of
the dishonoured promissory
notes on the basis that they had been dishonoured on presentation.
Those were different causes of action
and the relief claimed in each
was also different.
[20]
Although not referred to by him,
Boshoff
v Union Government
,
8
provided authority for Milne J’s view in
regard to the application of
res
judicata
. Boshoff claimed damages from
the government arising from the allegedly wrongful cancellation of a
lease and his ejectment from
a farm owned by the defendant. The plea
of
res judicata
was
based on proceedings for Boshoff’s ejectment, founded on the
lawful termination of his lease.After considering the authorities
on
what is meant by the ‘same cause of action’ Greenberg J
concluded that this requirement would be satisfied in the
circumstances described in the following passage from Spencer-Bower’s
Res Judicata
:
‘
Where
the decision set up as a
res
judicata
necessarily
involves a judicial determination of some question of law or issue of
fact, in the sense that the decision could not
have been legitimately
or rationally pronounced by the tribunal without at the same time,
and in the same breath, so to speak,
determining that question or
issue in a particular way, such determination, though not declared on
the face of the recorded decision,
is deemed to constitute an
integral part of it as effectively as if it had been made so in
express terms …’
9
[21]
On this basis the requirement of the same cause of action is
satisfied if the other proceedings involve the determination of
a
question that is necessary for the determination of the case in which
the plea is raised and substantially determinative of the
outcome of
that latter case.
Boshoff
was followed in a
number of cases in provincial courts, but was regarded as
controversial because it was thought to import into
South African law
the English principles of issue estoppel.
10
It is unnecessary to explore that
controversy because this Court laid it to rest in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Beperk
.
11
There,
Botha JA held that
Boshoff
was based on the
principles of our law. He said that its
ratio
is that the strict requirements for a
plea of
res judicata
of the same cause
of action and that the same thing be claimed, must not be understood
in a literal sense and as immutable rules.
There is room for
theiradaptation and extension based on the underlying requirement
that the same thing is in issueas well as the
reason for the
existence of the plea.
12
[22]
Scott JA summarised the current state of our law on this subject in
Smith v Porritt & others
,
13
where he said:
‘
Following
the decision in
Boshoff
v Union Government
1932
TPD 345
the ambit of the
exceptio
res judicata
has
over the years been extended by the relaxation in appropriate cases
of the common-law requirements that the relief claimed and
the cause
of action be the same (
eadem
res
and
eadem
petendi causa
) in
both the case in question and the earlier judgment. Where the
circumstances justify the relaxation of these requirements those
that
remain are that the parties must be the same (
idem
actor
) and that the
same issue (
eadem
quastio
) must
arise. Broadly stated, the latter involves an enquiry whether an
issue of fact or law was an essential element of the judgment
on
which reliance is placed.Where the plea of
res
judicata
is raised
in the absence of a commonality of cause of action and relief claimed
it has become commonplace to adopt the terminology
of English law and
to speak of issue estoppel. But, as was stressed by Botha JA in
Kommissaris van
Binnelandse Inkomste v Absa Bank Bpk
1995
(1) SA 653
(A) at 669D, 670J-671B, this is not to be construed as
implying an abandonment of the principles of the common law in favour
of
those of English law; the defence remains one of
res
judicata
. The
recognition of the defence in such cases will however require careful
scrutiny. Each case will depend on its own facts and
any extension of
the defence will be on a case-by-case basis … Relevant
considerations will include questions of equity
and fairness not only
to the parties themselves but also to others. As pointed out by De
Villiers CJ as long ago as 1893 in
Bertram
v Wood
(1893) 10 SC
177
at 180, “unless carefully circumscribed, [the defence of
resjudicata
]
is capable of producing great hardship and even positive injustice to
individuals”.’
14
[23]
The central feature of the decision in
Cook
was that the
adjudication of the claims against Muller involved the same issue,
namely whether there had been a breach of the underlying
agreement
entitling Muller to avoid payment of the promissory notes, as the
adjudication of Muller’s claim for damages. In
the light of the
principles discussed above, Milne J was correct therefore to say that
the adjudication of the latter claim would
give rise to
res
judicata
in the
adjudication of the claims on the promissory notes. The approach
initially adopted by the parties, that it was immaterial
to the plea
of
lis pendens
that Caesarstone is the plaintiff in
the Israeli action and the defendant in this action, was accordingly
correct.The quoted passage
from the judgment of Zulman JA in
Hassan
must be read as being no more than a
general, but not definitive, description of the plea of
lis
pendens
.A
defendantcan raise the plea of lis pendens even though it is the
plaintiff in the other proceedings on which the plea is based.
15
[24]
In para 11, supra, I described the central issues that will have to
be determined in both the Israeli and these proceedings.
If those
issues are determined in favour of Caesarstone it will be entitled to
the declaratory order it seeks that the agency agreement
has either
lapsed or been cancelled and to such consequential relief as may
properly flow from that. If they are determined against
Caesarstone
it seems necessarily to follow that WOMAG and the Sachs family can
legitimately claim that there was a repudiation
of the agency
agreement
16
and recover from Caesarstone any
damages they may have suffered as a result. Whilst the form in which
those issues arise and the
relief that is claimed consequent upon
them differs in the two actions the central issue remains essentially
the same. Whilst there
is not strict compliance with the requirements
for
res judicata
this is in my view
a proper case to relax those requirements in accordance with the
approach in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Beperk
.
[25]
Counsel for the respondents contended that this was too broad an
approach to the identification of the questions arising in
the two
cases giving rise to the plea that is before us. He founded his
argument on the majority judgment of Olivier JA in
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd.
17
As his opponent candidly conceded that it is
difficult to reconcile the approach of Olivier JA with that of Botha
JA in
Kommissaris van Binnelandse
Inkomste v ABSA Bank Beperk
and Scott
JA in
Smith v Porritt & others
,it
is necessary to pause briefly to consider what was decided in that
case.
[26]
In
National Sorghum Breweries
the
appellant had conferred distribution rights on the respondent in
return for a payment of R150 000. The relationship soured
and
the respondent sued to recover the R150 000. It obtained
judgment by default. Fortified by that judgment it then sued
the
appellant for damages for breach of the distributorship agreements.
The appellant responded with a plea of
res
judicata
and reliance on the ‘once
and for all’ rule that requires a claimant with a single cause
of action to claim in one and
the same action all remedies that the
law affords in respect of that cause of action.
18
The defence failed.
[27] Olivier JA said that:
‘
The
requirements for a successful reliance on the
exceptio
were, and still
are:
idem actor,
idem reus, eadem res
and
eadem causa petendi.
This
means that the
exceptio
can be raised by a
defendant in a later suit against a plaintiff who is “demanding
the same thing on the same ground”
(
per
Steyn
CJ in
African Farms
and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A) at 562A); or which comes to the same thing, “on
the same cause for the same relief” (
per
Van Winsen AJA in
Custom
Credit Corporation (Pty) Ltd v Shembe
1972
(3) SA 462(A)
at 472A-B; see also the discussion in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995
(1) SA 653
(A) at 664C-E); or which also comes to the same thing,
whether the “same issue” had been adjudicated upon (see
Horowitz v Brock &
others
1988 (2) SA
160(A)
at 179A-H).’
19
Accordingly
his approach to the basic applicable principles in relation to
res
judicata
did not differ from that set
out in the authorities cited earlier in this judgment. The only
difference lay in his application of
those principles to the case
before the court. He held that the initial claim for restitution of
what had been paid for the distributorships
was ‘clearly
distinguishable’ from a claim for damages for breach of the
distribution agreements and therefore that
the defence of
res
judicata
and the invocation of the once
and for all rule was misplaced.
[28]
The issue in that case was whether it was impermissible for the
respondent to pursue the claims for restitution and damages
in
separate actions. In other words did the ‘once and for all’
rule preclude the institution of the second action?
Whilst that rule
and the defence of
res judicata
have the same rationale
20
they are different. Had the appellant in
National
Sorghum Breweries
pleaded that the
distributorship agreements had not been cancelled there can be no
doubt that a replication that it was precluded
by
res
judicata
from advancing that contention
would have succeeded. The decision does not therefore detract in any
way from the approach to the
principles of
res
judicata
in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Beperk
and
Smith
v Porritt & others
, which are the
leading authorities in this field. Nor is the case of
Janse
van Rensburg & others NNO v Steenkamp
,
21
on
which the respondents placed great reliance, of any assistance to
them. The issue there was whether an adverse decision on claims
by
liquidators under
s 30
of the
Insolvency Act 24 of 1936
precluded them from thereafter pursuing claims under
s 29
of
that Act. The court citedthe authorities in this court that I have
already discussed and then applied them in the factual circumstances
of that case. It did not purport to modify in any way what was said
in the two leading cases.
[29]
For those reasons I conclude that two of the three requirements for
the successful invocation of
lis pendens
are satisfied in the present case. That
leaves the third requirement that the two actions should be between
the same parties. Here
there appears to be a difference between the
two actions. Caesarstone and WOMAG are parties to both. So is Mr Oren
Sachs, although
it is by no means clear on what basis he is cited in
the Israeli action. He quite clearly signed the agency agreement as
the representative
of the Sachs family, that is, of himself, his
father and his brothers, but is described in para 8 of the claim in
Israel as ‘the
person with whom the Plaintiff [Caesarstone] was
corresponding in all matters related to the Heads of Agreement in
this claim,
as well as the General Manager of [WOMAG]’.
22
Curiously
in the statement of defence filed on his behalf in those proceedings
he does not object to his joinder, or draw attention
to the fact that
he signed the agency agreement on behalf of his family, or complain
that in those circumstances the court cannot
grant an order that the
agreement has lapsed or been cancelled without joining the remaining
family members. What is clear is that,
whatever the basis of his
joinder in the Israeli action and irrespective of whether he may have
a valid defence to the claims raised
against him in that action, he
is before the Israeli court and his endeavours to secure his release
from those proceedings have
failed.
[30] I was initially attracted by the idea that, as the conclusion of
the agency agreement was common cause and Mr Oren Sachs had
signed it
on behalf of the Sachs family, his joinder in the Israeli proceedings
should be construed as a joinder of him in that
representative
capacity. On reflection, however, that conclusion is not open on
these papers. Not only is there no allegation in
the pleadings filed
in Haifa that this is the basis for his joinder, but in the pleadings
in this case Caesarstone does not advance
such a contention. Instead
in its special plea it avers that the parties to the Israeli action
are itself, WOMAG and Mr Oren Sachs.
That is repeated in para 1 of
the agreed statement of facts. If it thought that the other members
of the Sachs family were parties
to the Israeli action, presumably it
would have said so. In addition it seems clear that the other family
members have not been
served in those proceedings and without service
our courts will not recognise a judgment by a foreign court even if
that court
would otherwise have jurisdiction over the person against
whom the judgment is granted. Furthermore, it appears from the
judgment
of the Haifa Magistrates’ Court on the application to
set aside the proceedings and from the judgment of the Haifa District
Court on appeal, that in Israeljurisdiction over a foreign defendant
is acquired by service upon them while they are physically
in Israel
or by service outside the jurisdiction under
rule 467of
the rules
governing these matters in Israeli courts. The absence of service is
a fatal obstacle to the Israeli court exercising
jurisdiction over
the remaining family members. In those circumstances I conclude that
it is not open to us to hold that the Sachs
family as a body or the
third to sixth respondents as individuals are parties to the Israeli
proceedings.
[31] It was not submitted that we should strike out in a new
direction and allow a relaxation of the requirement that the two sets
of litigation be between the same parties, in the same way as the
other requirements of
lis pendens
and
res judicata
have
been relaxed. That leaves the contention that there is a sufficient
commonality of interest between WOMAG and Mr Oren Sachs
on the one
hand, and the other members of the Sachs family on the other, that
the plea of
lis pendens
is available against them.
[32] It is necessary at the outset to clarify an important issue. The
argument proceeded with little or no regard for the fact
that there
are three separate claims in the Western Cape action.WOMAG and the
Sachs family jointly advance the major claim for
damages in respect
of lost commissions, of some 11.5 million euros. The Sachs
family alone advance the second claim for damages
in respect of other
lost commissions, in an amount of a little less than 900 000 euros.
The third claim, of some 3 million euros,
is solely a claim by WOMAG.
These claims are separate and distinct and could have been pursued in
three separate actions. They
are joined under the provisions of rule
10(1) of the Uniform Rules on the basis that substantially the same
question (or questions)
of law or fact would arise if they were
pursued separately. This is undoubtedly correct because all three
claims depend upon the
same allegations of a repudiation of the
agency agreement.
[33] So far as the plea of
lis pendens
is concerned the
position is as follows. In respect of the third claim by WOMAG alone
the requirement of
lis pendens
that there be an identity of
parties are satisfied. There is a partial identity of parties in
respect of the main claim. The only
identity of partiesin respect of
the claim by the Sachs family arises from the citation in the Israeli
action of Mr Oren Sachs
in an obscure capacity. How is this to be
dealt with? Does this diversity defeat the plea of
lis pendens
in
its entirety?
[34]
Insofar as WOMAG is concerned, all the requirements for a valid plea
of
lis pendens
are
satisfied in respect both of its individual claim and in respect of
the claim that it pursues jointly with the Sachs family.
The plea can
only be rejected if the court, in the exercise of its discretion,
declines to grant a stay. The evidential burden
of establishing facts
justifying the court in exercising that discretion in favour of a
plaintiff against which a plea of
lis
pendens
has properly been raised, lies
with theplaintiff, in this case WOMAG.
[35] The position is the same in relation to Mr Oren Sachs with
regard to his interest in the main claim and the claim by the family
for lost commissions. Although, as I have said, the basis for his
joinder in the Israeli action is obscure, the reality is that
he is a
party to those proceedings and his attempts to avoid that situation
have been rebuffed by the Israeli courts. Accordingly
he is a party
to proceedings before the courts of that country in which the central
issues described above in para 11 fall to be
determined. Like WOMAG
he bears an evidential burden to establish a factual basis for the
court to exercise its discretion to refuse
a stay in his favour.
[36]
In exercising its discretion considerations of fairness and
convenience are fundamentally important.
23
I agree with Coetzee DJP in
Kerbel
v Kerbel
24
that once the requisites for a plea of
lis
pendens
are established the court
should be inclined to uphold it, because it is undesirable for there
to be litigation in two courts over
the same issue. That was the
approach of De Villiers CJ in
Wolff NO v
Solomon
,
25
when he said:
‘
I
am not prepared to say that the plea of
lis
pendens
in a
foreign state would be a good defence in every case in which the plea
of
res judicata
in such foreign state would have been
a good answer. But I do hold that the fact that a suit has been
commenced by a plaintiff,
and is still pending in the Court of a
foreign state having jurisdiction over the defendant, affords,
primâ
facie
, a good
ground for a plea in abatement to an action instituted in this Court
by the same plaintiff against the same defendant,
for the same thing,
and arising out of the same cause, in the absence of proof that
justice would not be done without the double
remedy.’
In
my view that is the correct approach.
[37]
WOMAG and Mr Oren Sachs advance several reasons in support of their
contention that the Western Cape action should in any event
not be
stayed. First they say that for them to pursue their claims against
Caesarstone in Israel would be prohibitively expensive
because they
would be required to pay court fees that they estimate at nearly R3
million and would probably be required to provide
security for costs.
The answer to this is that they are not obliged by a stay to pursue
their claims by way of a counterclaim in
the Israeli action. Their
action would simply be stayed until the Israeli proceedings were
complete. They would then be free, if
successful in resisting
Caesarstone’s claims, to set their action down, with the
advantage of being able to plead
res
judicata
if Caesarstone sought to
re-litigate the issues already determined against it.
[38]
The second argument was that the Israeli action was not
bona
fide
. That is a heavy onus to discharge
and I am not satisfied that it has been discharged in this case. Its
foundation is that Mr Oren
Sachs was lured to Israel under the
pretext of a meeting to discuss payments to WOMAG and was then
presented with a notice of cancellation
and the summons. It was
claimed that the latter was served in circumstances constituting an
abuse of process. Whilst the Haifa
Magistrates’ Court upheld
this argument, on appeal to the Haifa District Court, sitting as the
court of civil appeal, it
was rejected and leave to appeal to the
Supreme Court was refused.It is an argument that has already been
advanced and argued three
times before the courts in Israel and the
higher courts rejected it. I have examined the judgments of those
courts from which it
is clear that the higher courtsdid not agree
with these contentions. As they relate to proceedings in Israel, we
should only depart
from their view of whether proceedings before
their courts constitute an abuse of process in a very clear case.
This is not such
a case, based as it is largely on a handful of
passages in evidence in interlocutory proceedings. In addition a
reading of the
entire record of that evidence discloses that there
are significant disputes of fact over the circumstances in which Mr
Oren Sachs
went to Israel and met with Caesarstone’s
representatives in December 2007.
[39]
The third contention by the respondents was that Cape Town was the
more natural jurisdiction to hear and determine the disputes
between
the parties. At the heart of this contention was the proposition that
the bulk of the relevant evidence needed to determine
the disputes
was in South Africa, because it was in this country that the agency
agreement was to be performed and the reports
that apparently play a
significant role had to be prepared in South Africa and related to
events in this country. The difficulty
in this regard is that what is
essentially a
forum non conveniens
argument must be founded on evidence
26
and the agreed statement of facts contains no
facts concerning the number or identity of witnesses that will have
to give evidence
in relation to the central dispute between the
parties or the nature and extent of their evidence.
[40]
Caesarstone’s witnesses thus far have, with one exception, come
from Israel and testified in Hebrew. The exception is
the
representative of their distributor in South Africa and he appears to
be content to give evidence in English in Israel. Mr
Oren Sachs has
given evidence on behalf of WOMAG and himself, and has done so in
Hebrew. Other witnesses that WOMAG has indicated
should be called
include two Israelis and a South African architect. In the latter’s
case it has been held that his evidence
can be given on affidavit and
he can be cross-examined by means of a video conference link. It is
not suggested that there would
be any difficulties of translation.
The central issues will revolve around the terms of the agency
agreement, which is also in
Hebrew, andwhat occurred at the meeting
on 26 December 2007.That meeting took place in Israel, appears to
have been conducted in
Hebrew and had as the only South African
participant Mr Oren Sachs, who is also an Israeli citizen. Overall I
am not satisfied
that it has been shown that Cape Town is a more
appropriate
27
forum than Haifa.
[41]
In all the circumstances neither WOMAG nor Mr Oren Sachs have
advanced adequate reasons for the Western Cape action not to
be
stayed as against them. The possibility of this conclusion being
reached was recognised in the respondents’ heads of argument
where it was contended that ‘at the very least, the plea of
lis
pendens
cannot be raised successfully’
against the other members of the Sachs family. However, that raises
the undesirable possibility
of both actions continuing with Mr Oren
Sachs being a litigant in Israel and the most important witness for
the plaintiffs in Cape
Town. I did consider whether that possibility
was of itself a reason for the court to exercise its jurisdiction to
refuse a stay,
28
but in the light of what follows that difficulty
does not arise.
[42]
As I have mentioned Caesarstone submitted that while the remaining
family members were not parties to the proceedings in Israelthere
was
a sufficient commonality of interestbetween them and WOMAG and Mr
Oren Sachs to satisfy the requirements of the plea of
lis
pendens
. The argument commences with a
reference to
Voet
44.2.5,
29
where
Voet
gives
examples of what is meant by the ‘same person’ in the
context of a plea of
res judicata
.
Whilst the rule is often stated as being that it covers only those
who are privies in the sense of having derived their rights
from a
party to the original litigation,
30
it is by no means clear that
Voet
confined it that narrowly. He includes
a principal and agent; the pledgor and pledgee in relation to the
right to possession of
the thing pledged; two joint and several
debtors or creditors in relation to a claim to a thing and a surety
and the principal
debtor. In practice it has been held to include the
sole member of a close corporation.
31
In
Prinsloo NO v
Goldex 15,
32
Brand JA refrained from deciding whether this
approach was correct but said:
‘
In
this case Prinsloo not only represented the trust, he was the
controlling mind of that entity. It would therefore surprise me
if
the controlling mind were not bound by an earlier decision that he
committed fraud, while the mindless body of the trust was
held bound
by that finding.’
[43]
It may be that the requirement of ‘the same persons’ is
not confined to cases where there is an identity of persons,
or where
one of the litigants is a privy of a party to the other litigation,
deriving their rights from that other person. Subject
to the person
concerned having had a fair opportunity to participate in the initial
litigation, where the relevant issue was litigated
and decided, there
seems to me to be something odd in permitting that person to demand
that the issue be litigated all over again
with the same witnesses
and the same evidence in the hope of a different outcome, merely
because there is some difference in the
identity of the other
litigating party. This case provides an illustration of that type of
problem. The agency agreement was negotiated
on behalf of WOMAG and
the Sachs family by Mr Oren Sachs. His authority to represent the
family is undisputed. His evidence before
the Magistrates’
Court in Haifa was that he was authorised by the other family members
to bring the attachment application
that commenced the present
litigation and to bring this action. It is true that there is not the
slightest indication that anyone,
save his father, the third
respondent, has played any active role in matters concerning the
business relationship with Caesarstone.
Nonetheless the other family
members are clearly fully aware of what is happening in both sets of
litigation as they are parties
to the agreed statement of facts. We
have not been told of their precise connection with the business of
WOMAG, but as they were
to receive substantial commissions from its
dealing with Caesarstone it would be surprising to learn that they
are remote from
and ignorant of its business. It would be a most
impractical situation were the position to be that, after a trial in
Israel, the
court’s decision on the central issue of whether
the contract lapsed, or was lawfully cancelled by Caesarstone, or
came to
an end by virtue of a repudiation by Caesarstone accepted by
all the respondents, bound WOMAG and Mr Oren Sachs, but not the
remaining
members of the family. That would particularly be the case
if they play an active role in the business of WOMAG. I would be very
surprised if, after a decision favourable to them,they did not seek,
in pursuing their claim for damages in South Africa, to contend
that
the favourable Israeli decision bound Caesarstone.
[44]
However, I need not reach a final conclusion on that point in the
light of another consideration. I have already concluded
that in
relation to WOMAG and Mr Oren Sachs the requirements of the plea of
lis pendens
have been satisfied and that there are no grounds
for the court to exercise its discretion to refuse a stay of the
Western Cape
action as far as they are concerned. That would leave
the Western Cape action in a limping condition akin to
Hamlet
without the prince or, in the title of Donald Howarth’s play
presented at the Space Theatre in Cape Town during the dark
days of
apartheid,
Othello slegs blankes
. This would be most
unsatisfactory.
[45]
The solution lies in a point made by Milne J in
Cook
, when he
said:
33
‘
Even
if this does not strictly constitute a defence of
lis
alibi pendens
, it is clear that the Court
may, in the exerciseof its discretion in controlling the proceedings
before it, debar a person from
ventilating a dispute already decided
against him under the guise of an action against another party. See
Burnham v Fakheer
,
1938 N.P.D. 63.
Although the previous proceedings had not even been
between the same parties, the Court there held that for the
respondent to attempt
to re-try an issue which had already been
decided merely by changing the form of his action was an abuse of the
processes of the
Court, and was vexatious. See also
Niksch
v Van Niekerk and Another
,
1958 (4) SA 453
(E) at p. 456, and the English decision of
Reichel
v. Magrath
,
(1889) 14 A.C. 665
(H.L.).’
[46]
The case of
Burnham
, to which Milne J referred, is
illuminating. Burnham was an attorney who had drafted an agreement of
sale in respect of two properties
on behalf of Mr Fakheer. When the
purchaser sought to enforce the contract Mr Fakheer raised the
defence that he did not understand
the contract, which had not been
explained to him, and had never intended to enter into an agreement
of sale in respect of the
properties. This defence was rejected after
a full trial in which Mr Burnham gave evidence concerning Mr
Fakheer’s grasp
of the English language, the fact that the
agreement had been read out to the parties before signature and any
explanations sought
were given and that the agreement had been drawn
by him in accordance with his instructions. His evidence was accepted
and that
of Mr Fakheer rejected. When the latter then sued him for
damages for drafting the agreement contrary to his instructions and
allowing
him to sign it when he knew that he (Fakheer) did not
understand or agree with its contents, Burnham successfully applied
to have
the claim struck out as an abuse of the process of the court.
[47]
The importance of
Burnham
for present purposes is that Burnham
was not a party to the previous litigation between Fakheer and the
purchaser of the properties,
but it was held that it would be an
abuse of process to permit Fakheer to relitigate the same issues in
an action against Burnham.
The same situation had arisen in
Reichel
v Magrath
which Carlisle J followed in
Burnham
. Reichel, a
vicar, had brought an action against his bishop contending that he
had not resigned his benefice and that an instrument
of resignation
he had executed was void. He lost, the court holding that he had
resigned with the consent of the bishop. The new
incumbent of the
benefice was forced to bring an action against Reichel to compel him
to give up the vicarage and the glebe lands.
Once again Reichel
claimed that he had not resigned. That defence was struck out as an
abuse even though the new vicar had not
been a party to the previous
action between Reichel and the bishop. The court held that it was
vexatious and frivolous and an abuse
of process to seek to relitigate
a matter that had already been determined in another action.
Similarly in
Niksch v Van Niekerk
it was held to be vexatious
for a witness, who had already testified in a motor collision case
that the accident that had occurred
was occasioned by the negligence
of the driver of the vehicle in which he was a passenger, to bring an
action against the driver
of the other vehicle involved in the
collision in which he alleged that the accident had been caused by
that driver’s negligence.
[48]
I stress that I am not saying that it would be an abuse of the
process of the court for the other members of the Sachs family
to try
and pursue the Western Cape action, when that action has been stayed
insofar as WOMAG and Mr Oren Sachs are concerned. However,
the
practical difficulty of their doing so, when their right to pursue
those claims is joint with the persons in relation to whom
the action
has been stayed, requires the court to exercise the inherent
discretion of which Milne J spoke, in order to avoid those
difficulties. That discretion is now confirmed in s 173 of the
Constitution.
[49]
The only sensible way in which to address the problem is for the
court also to stay the proceedings as against the remaining
members
of the Sachs family, not on the basis of
lis pendens
, but in
the exercise of its inherent powers to regulate its own procedures.
Once the Israeli proceedings are complete and a final
judgment has
been given it will be open to them, together with WOMAG and Mr Oren
Sachs, to resume the Western Cape action. Whether
any question of
res
judicata
or abuse of process will then arise will depend on the
outcome of the Israeli action. It may then be necessary to resolve
the interesting
question raised, but not decided, in para 43 above.
In addition, if any party to that action seeks to relitigate issues
already
dealt with in Israel the court will no doubt be called upon
to decide whether that constitutes an abuse of process in accordance
with the cases mentioned by Milne J and discussed in paras 46 and 47.
[50]
In the result the appeal must succeed and the Western Cape action be
stayed. That order will be made against all of the respondents,
but
for different reasons as between WOMAG and Mr Oren Sachs on the one
hand and the other members of the Sachs family on the other.The
plea
of
lis pendens
must be dismissed against the third to sixth
respondents, but as the action is in any event to be stayed against
them for other
reasons, their primary aim of avoiding a stay has
failed. They made common cause with WOMAGand Mr Oren Sachs, and were
represented
by the same legal team. In the circumstances the limited
success they have achieved does not warrant an order for costs in
their
favour. I make the following order:
(a)
The appeal is upheld with costs, such costs to include those
consequent upon the employment of two counsel.
(b)
The order of the court below is set aside and replaced by the
following order:
‘1
The special plea of
lis alibi pendens
in relation to the first
and second plaintiffsis upheld with costs, such costs to include
those consequent upon the employment of
two counsel.
2
The special plea of
lis alibi pendens
is dismissed in relation
to the third to sixth plaintiffs.
3
The Plaintiffs’ action under WCHC Case No 10053/08 is stayed
pending the final determination of the action instituted by
the
Defendant against the First and Second Plaintiffs in the Magistrates’
Court, Haifa, Israel, under Case No A22497/07.’
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant: L A ROSE-INNES SC (with him B J VAUGHAN)
Instructed by: Bernadt Vukic Potash & Getz, Cape Town
Lovius Block Attorneys, Bloemfontein
For respondent: P B HODES SC (with him D GOLDBERG)
Instructed by:
Rubensteins Attorneys, Cape Town
E G Cooper Majiedt, Bloemfontein.
1
Socratous
v Grindstone Investments
2011 (6) SA 325
(SCA) para 13. Its
origins are to be found in the Digest 44.2 sv
De Exceptione Rei
Iudicatae
.
2
Johannes
Voet
The Selective Voet being the Commentary on the Pandects
(Gane’s translation, 1957) Vol 6 at 560
.
The
passage appears in a chapter headed ‘The Exception of
Res
Judicata
’.
3
Wolff
NO v Solomon
(1898) 15 SC 297
at 306-307.
4
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
.
2001 (4) SA 542
(SCA) para
17.
5
Hassan
& another v Berrange NO
2012 (6) SA 329
(SCA) para 19 –
the judgment was delivered in 2006 but only reported in 2012.
6
Cook
& others v Muller
1973 (2) SA 240
(N) at 244E-246D.
7
Marks
and Kantor v Van Diggelen
1935 TPD 29
at 37.
8
Boshoff
v Union Government
1932 TPD 345.
9
Ibid350-351.
10
D
Zeffert ‘Issue Estoppel in South Africa’
(1971) 88
SALJ
312
; P J Rabie in
Lawsa,
1 ed, Vol 9 paras 363-365
;
Hoffmann & Zeffert
SA Law of Evidence
4 ed (1988)
347-350. In the second edition of this work (1970) by Hoffmann alone
it was accepted at 238 that the doctrine of issue
estoppel is part
of our law.The criticism in the later editions is therefore that of
Professor Zeffertt alone. Its reception
in South African law was
described as a vexed question by Smalberger JA in
Horowitz v
Brock & others
1988 (2) SA 160
(A) at 179E-F.
11
Kommissaris
van Binnelandse Inkomste v ABSA Bank Beperk
1995 (1) SA 653(A).
12
The
key passage at 669F-G reads: ‘Die ware betekenis van
Boshoff
v Union Government
is dat die beslissing ingehou het dat die
streng gemeenregtelike vereistes vir 'n verweer van
res judicata
(in die besonder:
eadem res
en
eadem petendi causa
)
nie in alle omstandighede letterlik verstaan moet word en as
onwrikbare reëls toegepas moet word nie, maar dat daar ruimte
is vir aanpassing en uitbreiding, aan die hand van die onderliggende
vereiste van
eadem quaestio
en die
ratio
van die
verweer.’
13
Smith
v Porritt & others
2008 (6) SA 303
(SCA) para 10.
14
Prinsloo
NO& others v Goldex 15 (Pty) Ltd & another
[2012] ZAASCA
28 is an illustration of circumstances in which considerations of
justice and equity will preclude reliance on the
plea of
res
judicata
.
15
Factually
this was the situation in both
Boshoff
and
Marks and
Kantor v Van Diggelen
, supra.
16
Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
2001 (2) SA 284
(SCA) para 16.
17
National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA).
18
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) and
Custom Credit Corporation (Pty) Ltd v Shembe
1972 (3)
SA 462
(A).
19
Para
2, p 239.
20
Custom
Credit Corporation (Pty) Ltd v Shembe
at 472A-E.
21
Janse
van Rensburg & others NNO v Steenkamp& another: Janse van
Rensburg & others NNO v Myburgh & others
2010 (1) SA 649
(SCA).
22
This
is the translation from the Hebrew annexed to the stated case. The
translation annexed to the special plea is slightly different
and
says that he was the person that Caesarstone ‘engaged on all
matters related to the Agreement of Principles’
and ‘the
CEO’ of WOMAG.
23
Van
As v Appollus & andere
1993 (1) SA 606
(C) at 610F.
24
Kerbel
v Kerbel
1987 (1) SA 562
(W) at 567F-G.
25
Supraat
307.
26
Weissglass
NO v Savonnerie Establishment
[1992] ZASCA 95
;
1992 (3) SA 928
(A) at 939F-G.
That a
forum non conveniens
argument must be based on facts
is clear from the speech of Lord Goff of Chieveley in
Spiliada
Maritime Corp v Cansulex Ltd; The Spiliada
[1986] 3 All ER 843
(HL) at 854-856, which has been cited with approval a number of
times by South African courts dealing with such an argument.
27
The
word ‘
conveniens
’ means appropriate, not
convenient.
Société du Gaz de Paris v Société
Anonyme de Navigation des Armateurs Francais
1926 SLT 33
at 34
per
Lord Dunedin.
28
See
Universiteit van Stellenbosch v JA Louw (Edms) Bpk
1983 (4)
SA 321
(A).
29
Gane’s
translation, supra, at 558.
30
Hoffmann,
Law of Evidence
2 ed (1970) 238; P J Rabie in
Lawsa
2
ed (2005) Vol 9 para 637.
31
Man
Truck & Bus (SA) (Pty) Ltd v Dusbus Leasing CC & others
2004
(1) SA 454
(W). Curiously in that case it was held not to extend to
a surety notwithstanding the high authority of
Voet
to the
contrary.
32
Suprapara
15.
33
At
245H-246B.