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[2010] ZAGPPHC 227
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Director-General of the Department of Public Works v Kovac Investments 289 (Pty) Ltd In re: Kovac Investments 289 (Pty) Ltd v Director-General of the Department of Public Works (3823/09) [2010] ZAGPPHC 227; 2010 (6) SA 646 (GNP) (11 August 2010)
REPORTABLE
IN THE
NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
No: 3823/09
DATE:11/08/2010
In the
matter between
THE
DIRECTOR-GENERAL OF THE DEPARTMENT
OF
PUBLIC
WORKS
........................................................................................................
Excipient
and
KOVAC
INVESTMENTS 289 (PTY)
LTD
........................................................................
Plaintiff
In re:
KOVAC
INVESTMENTS 289 (PTY)
LTD
........................................................................
Plaintiff
and
THE
DIRECTOR-GENERAL OF THE DEPARTMENT
OF
PUBLIC
WORKS
.......................................................................................................
Defendant
JUDGMENT
HASSIM
AJ
[1] On
13 April 2006 the Director-General of Public Works
1
(or his delegate) entered into a written lease agreement with African
Alliance (Pty) Ltd/Kovacs Investments 289 (Pty) Ltd. For
sake of
completeness I add that the plaintiff pleads that after the
conclusion of the written lease agreement the parties entered
into a
further lease. This lease was an oral lease. Nothing turns on this.
Both these lease agreements are referred to collectively
as "the
lease" or "lease agreement".
[2] The
defendant took occupation of the leased premises on or about 26
September 2006. The plaintiff alleges that the defendant
breached the
lease agreement by failing to pay rental and other charge
2
for the period 1 October 2006 to 4 May 2007. The plaintiff claims
payment of Rl 112 173.46.
[3] The
defendant raises two exceptions to the plaintiffs claim. The first is
that in the absence of the defendant having consented
to the
plaintiff instituting this action without notifying it in terms of
section 3 (1) (a) of the Institution of Legal Proceedings
Against
Certain Organs of State Act, No 40 of 2002 ("the Act") of
its intention to do so, this court does not have jurisdiction
over
the claim. The second is exception is that the plaintiff does not
have locus standi to institute this action. I deal with
these
exceptions in turn.
[4]
Whether the plaintiff is obliged to notify the defendant of its
intention to institute legal proceedings in satisfaction of
a debt
depends on whether the plaintiffs claim constitutes a "debt"
as defined in the Act.
[5] In
his written submissions amplified by oral submissions at the hearing,
Mr Mphalele, who appeared for the defendant argued
that the
plaintiffs claim constitutes a "debt" as
'
Operating costs, parking rental, electricity, rates, refuse, sewerage
and water charges.
defined
in the Act. Relying on the decision in Legal Aid Board and Others v
Singh
3
he
argued
that a plaintiffs failure to notify an organ of state prior to the
institution of proceedings of its intention to do renders
the
proceedings a nullity and therefore a court does not have
jurisdiction over the claim.
[6]
Mr Mphalele's argument disregards section (b) of the definition of
"debt” in the Act. "Debt" is defined
in the Act
as follows: "'debt' means any debt arising from any cause of
action-
(a)
which arises from delictual, contractual or any other liability,
including a cause of action which relates to or arises from
any-
(i) act
performed under or in terms of any law; or
(ii)
omission to do anything which should have been done under or in terms
of any law; and
(b) for
which an organ of state is liable for the payment of damages".
[emphasis
added]
[7] The
plaintiffs claim against the defendant for arrear rental, for damages
for breach of contract or any other claim for damages
would for
purposes of the Prescription Act 68 of 1969 ("the
Prescription
Act"
;) constitute a "debt'. However for a "debt"
to constitute a debt in terms of the Act there is a further
requirement.
That is the requirement set out in section (b) of the
definition of "debt" in the Act. Sections (a) and (b) of
the definition
of "debt" cannot be read independently of
each other. In fact reading 3 2009(1) SA 184 (N)
them
disjunctively is misleading. All that section (a) establishes is that
all contractual and delictual claims give rise to a debt.
The fact
that the claim may be characterized as a claim for specific
performance makes no difference to this. In the context of
the
Prescription Act a
claim for specific performance constitutes a
debt.
4
[8] The
enquiry does not stop at section (a) of the definition of "debt"
in the Act. Section (b) of the definition lists
in addition to the
features mentioned in section (a) another feature that the
contractual, delictual or other claim must possess;
it must be a
claim for which an organ of state is liable for the payment of
damages. There are therefore two legs to the enquiry
whether a claim
is a debt in terms of the Act. First it must arise from a contract, a
delict "or any other liability".
Second it must render the
organ of state liable for damages.
[9] For
purposes of the second leg of the enquiry the claim needs to be
characterized. If the claim is for specific performance,
then the
claim while it would amount to a debt in the context of the
Prescription Act, it
does not qualify as a debt for purposes of the
Act.
[10] Mr
Mphalele argued that the plaintiffs claim is one for contractual
damages. Mr Wesley argued that the claim is for specific
performance.
I cannot agree with Mr Mphalele. The plaintiff seeks an order that
the defendant pays to it money in pursuance of
a contractual
obligation. Such a claim would be a claim for specific performance
5
.
In terms of the lease agreement the defendant was obliged to pay to
the plaintiff rent and other charges for its right to occupy.
It
occupied the leased premises in pursuance of that right and became
obliged to pay money in terms of the contract. The fact that
the
plaintiff pleads that the defendant breached the lease agreement by
not paying the rent and other charges due does not result
in the
claim for payment becoming a claim for damages arising out of the
breach.
[11]
The plaintiff seeks an order that the defendant pay to it that which
it undertook to pay in terms of the contract. The plaintiffs
claim is
therefore a claim for specific performance and not for damages.
[12]
Having found that the plaintiffs claim against the defendant is not
for damages, I find that the plaintiffs claim is not a
"debt"
as defined in the Act and therefore the provisions of section 3 of
the Act do not apply to the plaintiffs claim.
I therefore find that
the exception based the absence of jurisdiction must fail with costs.
[13] I
now turn to consider whether the plaintiff has locus standi to
institute an action based on the lease agreement. The defendant
labels the exception as absence of locus standi6.
6
I raised with Mr Mphalele whether the appropriate label for the
exception was an objection of non-joinder. He readily conceded,
correctly so,
7
that this was so. Nothing turns on the label that is attached to the
exception.
[14]
The written lease agreement identifies the lessor as "African
Alliance (Pty) Ltd / Kovacs Investments 289 (Pty) Ltd".
The
plaintiff in the action is Kovacs Investments 289 (Pty) Ltd. Not only
is African Alliance (Pty) Ltd not cited as a party, there
no mention
of African Alliance (Pty) Ltd in the particulars of claim. The
defendant objects to the particulars of claim on the
basis African
Alliance (Pty) Ltd ought to have been a party to the action and
therefore plaintiff lacks locus standi to institute
the action. The
exception is formulated as follows:
"THE
PLAINTIFF LA CKS THE LOCUS STANDI
The
Plaintiff's claim is based on the written lease concluded on the 13th
April 2006 between the Plaintiff's [sic] and a joint venture
consisting of the Defendant and AFRICAN ALLIANCE (PTY) LTD.
2.1
'Die joint venture of the Defendant
8
and AFRICAN ALLIANCE (PTY) LTD was duly represented by Mr Wayne
Arendse during the negotiation and conclusion of the written lease
agreement.
2.2 The
plaintiff can only institute an action against the Defendant jointly
with the [sic] AFRICAN ALLIANCE (Pty) Ltd
2.3 The
action by the Plaintiff has been instituted by the plaintiff only
without the AFRICAN ALLIANCE (PTY) LTD.
2.4
There are allegations by the Plaintiff That it is also acting for or
on behalf of AFRICAN ALLIANCE (PTY) LTD.
* It
.seems that this was an inadvenent reference to the defendant and
ought to have been a reference to the plaintiff. The difference
is
irrelevant.
2.5 The
Plaintiff, therefore, lacks the necessary locus standi to institute
this action. As a result, the. Plaintiffs claim lacks
the averments
necessary to sustain a cause of action and is accordingly had in law.
"
[15]
Before I deal with substance of the exception a few preliminary
remarks are called for. The defendant refers to a joint venture
between the plaintiff and African Alliance (Pty) Ltd. This is not
apparent from the plaintiffs particulars of claim. I assume in
favour
of the defendant that the reference to the lessor in the written
lease agreement as "African Alliance (Pty) Ltd / Kovacs
Investments 289 (Pty) Ltd" leads it to conclusion that the
plaintiff and "African Alliance (Pty) Ltd / Kovacs Investments
289 (Pty) Ltd" were parties in a joint venture. I have already
remarked that the plaintiffs particulars make no reference
to
"African Alliance (Pty) Ltd / Kovacs Investments 289 (Pty) Ltd"
at all. It therefore follows that the allegation paragraph
2.4 of the
exception is not correct.
[16]
Turning now to the merits of the exception. The lessor of the
premises appears to be two persons. The plaintiff and African
Alliance (Pty) Ltd are therefore joint lessors
9
[ 17]
The answer to whether African Alliance (Pty) Ltd ought to be a party
to the action is found in the legal principles dealing
with
indivisible causes of action and the rights and
9 It
matters not whether the lessor is described as a partnership or a
joint venture. If the defendant pays the plaintiff the full
rental
due by its. African Alliance will have no claim against the
defendant. African Alliance will have the right to claim its
pro rata
share of the rental from the plaintiff.
obligations
of joint creditors and joint lessors. The question received the
attention of Voet
10
as
well as Pothier
11
''.
(a)
Voet states that:
"If
two or more persons have let, each has a actio locatio for his share
against the hirer."
(b) In
similar terms Pothier in the context of general principles of
contract states: "regularly, when a person contracts the
obligation of one and the same thing in favour of several others ,
each of them is only a creditor for his own share."
[18]
Greenberg J (as he then was) considered a similar question in Glen v
Bickel
1928 TPD 186
and there gave attention to the texts of Voet and
Pothier quoted above. He held as follows:
"...
It seems to me therefore that the answer to the question under
consideration depends on whether the contract set out in
the
particulars creates one indivisible cause of action in favour of
respondent and Van Niekerk jointy or whether each of them
can sue for
his pro rata share. [The court proceeds to quote the passage from
Voet quoted above]. This passage is quoted with approval
by DE
VILLIERS C.J., in de Pas v Colonial Government and Others
(4 S.C.
383
, at p. 391) and Colonial Government v Wasserman (
5 S.C. 187).
Professor Wille in his book on Landlord and Tenant (at p. 321)
suggests that it is only the right to claim the rent which can be
separated
into proportionate shares. In Jacobson v Norton (2 M. 218, at p.223)
the Court held that if a promise is made to two persons
jointly, each
of them is entitled without the concurrence of the other to sue in
his own name for the share of the debt due to
him. In the latter
case, the court was referred in argument to Pothier, who says that
"regularly, when a person contracts
the obligation of one and
the same thing in favour of several others, each of them is only a
creditor for his own share."
(Obligations,\o\ I, s.258). (See
also vol II, appendix No.ll, s 1.) These authorities therefore
support the view that, in the absence
of anything to the contrary in
the contract between appellant and respondent and van Niekerk, the
two last-mentioned would each
have a right of action independently of
the other, for his pro rata share of the monies payable under the
contract. Paragraph 5
of the particulars suggests that it was only by
virtue of the dissolution that respondent and van Niekerk acquired
the right each
to claim his half share, but there is nothing in the
terms of the contract as set out to take it out of the general rule
laid down
by Voet and Pothier,.."
[19] It
is therefore clear that in the absence of contractual provisions to
the contrary, a joint lessor has a claim against the
lessee for his
pro rata share of the rent received (or due).
[20] I
can state it no better than Greenberg J, that there is nothing in the
lease agreement in this case to take it out of the
general rule laid
down by Voet and Pothier.
[21]
Accordingly the plaintiff is not precluded from claiming from the
defendant rent due by it in terms of the lease (albeit that
the claim
is limited to its pro rata share).
[22] I
therefore find the plaintiff is not obliged to join African Alliance
(Pty) Ltd as a party to this action.
[23]
This exception suffers the same fate as the first.
[24] Mr
Wesley attempted to persuade me that if I were minded to dismiss the
exceptions I should order the defendant to pay attorney-client
costs.
I find no reason for mulcting the defendant with punitive costs.
[25]
I therefore make the following order:
1. Both
exceptions raised by the defendant are dismissed.
2. The
defendant is to pay the costs of the exception.
S K
HASSIM
ACTING-JUDGE:
NORTH GAUTENG HIGH COURT, PRETORIA
10
August 2010
Date
heard: 16 March 2010
Counsel
for Excipient: Adv M S Mphahlele
Counsel
for Respondent: Adv C P Wesley
1
The parties are referred to as in the action.
2
Operating
costs, parking rental, electricity, rates, refuse, sewerage and
water charges.
3
2009(1) SA 184 (N)
4
C/Desai
NO v Desai and Others 1996(1) SA 141 (A) at 146G-147A
5
Cf
RH
Christie -The Law of Contract (5ed) p 522
6
Had
the exception been fonnulated on the basis that that the plaintiff
had no right to sue for rent then an exception on the ground
of
absence of locus standi would have been properly taken. This in any
event only if the contract provided that it was not competent
for
the joint lessors to independently sue for rent.
Cf
Glen
v Bickel
supra
at
p. 192
7
Glen
v Bickel
1928 TPD 186
at p 192
8
It .seems that this was an inadvenent reference to the defendant and
ought to have been a reference to the plaintiff. The difference
is
irrelevant.
9
It
matters not whether the lessor is described as a partnership or a
joint venture. If the defendant pays the plaintiff the full
rental
due by its. African Alliance will have no claim against the
defendant. African Alliance will have the right to claim its
pro
rata share of the rental from the plaintiff.
10
19.2.21
11
Obligations,
Vol. I, s. 258