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[2010] ZAGPPHC 216
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Green-Chem (Pty) Ltd v Albion Administration (Pty) Ltd (11213A/2009) [2010] ZAGPPHC 216 (6 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 11213A/2009
DATE:
6/12/2010
In
the matter between:
GREEN-CHEM
(PTY)
LTD
.....................................................................................
Plaintiff
and
ALBION
ADMINISTRATION (PTY)
LTD
.............................................................
Defendant
JUDGMENT
SAPIRE.
A J:
Plaintiff
and Defendant are the owners of adjacent rural lands. On the
20
th
of
March
2006
a
dam situated on Defendant's land collapsed. The ensuing onrush of
water onto Plaintiff s land caused substantial damage to Plaintiff
s
property in respect of which the Plaintiff claims damages,
attributing blame therefor to the Defendant.
The
Plaintiff issued a Summons on the
3
rd
of
March
2009
in
which the damages are claimed and on the
2
nd
of
March
2009
delivered
the process to the Sheriff at Nelspruit for service. A Deputy
Sheriff, Martin Swart, received the Summons on the 3
r
of March 2009 with instructions to serve it urgently according to a
document produced by Swart when he gave evidence. He served
the
Summons by delivering the same to the Defendant's registered office.
He made a Return which he gave to the Plaintiffs attorney
reading as
follows:
'DAGVAARDING:
RELAAS VAN BETEKENING
Hiermee
sertifiseer ek, MARTIN SWART, Adjunk Balju vir die Hooggeregshof in
Nelspruit, Mpumalanga, dat op hierdie 4de dag van MAART
2009 OM 9:10
te PROFORUM, VAN RENSBURG STRAAT 5, NELSPRUIT, MPUMALANGA, die
geregistreerde adres van die Verweerder, het ek HENNIE
GROBLER
ontmoet,
l
n
persoon oenskynlik ouer as 16 jaar en in beheer tydens betekening.
Die
oorspronklike Dagvaarding en Besonderhede van Vordering met
genoegsame afskrifte is aan synde oorhandig vir insae waarna die
inhoud, aard en erns aan synde verduidelik is.
Daarna
is 'n afskrif van die Oorspronklike Dagvaarding met Aanhangsels op
HENNIE GROBLER persoonlik beteken, wie 'n afskrif daarvan
ontvang het
namens die Verweerder."
No
Notice of Intention to Defend was given.
In
October 2009 the Plaintiff made application for Default Judgment. To
this end Plaintiff served the appropriate notice. Service
was
effected once again by Martin Swart, who made a Return reading as
follows:
"Hiermee
sertifiseer ek, MARTIN SWART, Adjunk Balju vir die Hooggeregshof in
Nelspruit, Mpumalanga, dat op hierdie 16de dag
van OKTOBER 2009 te
14:35 te PROFORUM GEBOU, VAN RENSBURGSTRAAT NO 5, NELSPRUIT
MPUMALANGA, die geregistreerde adres van die Verweerder
het ek CAROL
TOPHAM ontmoet.
Die
oorspronklike Aansoek om Verstekvonnis en aanhangsels met genoegsame
afskrifte is aan haar oorhandig vir insae waarna die inhoud,
aard en
erns aan haar verduidelik is.
Daarna
is 'n afskrif van die Oorspronklike Aansoek om Verstekvonnis met
Aanhangsels op CAROL TOPHAM beteken."
The
service of this Notice elicited a response from the Defendant and
there is no doubt that the Defendant received this Notice.
The
parties apparently agreed that the Application for Default Judgment
would not be proceeded with and the Defendant gave Notice
of Its
Intention to Defend. It then filed a Plea. The Plea contains two
Special Pleas together with a Plea on the Merits. The two
Special
Pleas amount to raising a defence of prescription. It is alleged that
the Summons was not served on Hennie Grobler as certified.
The
parties have agreed that the issue of prescription should be dealt
with apart from the other issues in the case and the hearing
before
me proceeded on that basis.
The
Defendant without conceding anything with regard to the onus produced
its evidence first. Hennie Grobler testified that he did
not receive
service of the Summons and was not in office at the time and on the
date stated in the Return. He tendered his Passport
to show that he
was not in the country having gone to a neighbouring territory to
fish. The Plaintiff s counsel in cross examining
him conceded that
the Return made by Swart in regard to the Service could not be proof
that service did take place. He also put
it to the witness that Swart
would testify that service was in fact effected on one Carol Topham.
Grobler
was adamant that he did not receive the Summons and he did not pass
any information in regard thereto to his client.
Because
Topham was mentioned in cross examination the Plaintiff wish to call
her as a result of which the trial was adjourned to
the following
morning so that Topham who resides and works in Nelspruit could be
present.
When
she testified Topham could not remember the receiving the Summons and
she inferred from the fact that the receipt of the Summons
was not
recorded in the Register of Documents Received that the Summons had
not been delivered to the office. She also testified
in regard to the
second Return of Service which I quoted above that at that time she
was on sick leave and on the day in question
she underwent
an
operation. She produced a copy of a Medical Certificate to
substantiate what she said.
Although
not directly relevant this evidence were tend to show that the first
Return was not the only one which was incorrect and
produced as a
result of slovenly work. Over all, however, she conceded that she did
not remember independently of the Register
what had taken place.
The
Defendant also called one of its Directors to testify that the
attorney had phoned to enquire from him who the Defendant's
accountant was. This telephone conversation took place long after
March 1990 and does not affect the outcome of the case.
The
Plaintiff called the Deputy Sheriff Swart who conceded that his
Return regarding service of the Summons was not correct and
could not
be relied on. He maintained steadfastly that he had gone to the
registered office of the Defendant with the Summons and
a copy
thereof and had served it on someone who he believe was Miss Topham.
His
explanation for his Return is that he must have been at the office
where he obtained the name of Hennie Grobler and he wrote
this name
on the "Adjunkblad" which he attached to the original of
the Summons. This was given to the typists to compose
the Return of
Service which was not his wording. He admits however that he signed
the completed Return. Clearly he could not have
checked it before it
was issued to the Plaintiff s attorney.
The
explanation is so bad as to be probably true. I take strength in this
view because the second Return was equally inaccurate
but none the
less the document served came to the attention of the Defendant and
its attorneys. It is clear that on these two occasions
the Returns do
not reflect what really happened.
Swarf's
memory of the events seems to have been no better than that of Carol
Topham.
The
evidence on both sides is hazy but I find that on a balance of
probabilities that Swart would have gone to serve the Summons
and
that he would not have left the office until he had done what he had
set out to do namely serve the Summons.
The
Summons may have gone astray thereafter. This explanation is more
acceptable than the suggestion that the Deputy Sheriff fabricated
his
whole account of the fate of the Summons. The circumstances
surrounding the second Service and the incorrect Return in respect
thereof are consistent with the view to which I have come.
I
therefore rule that the Summons was served timeously to interrupt
prescription and that the Pleas of Prescription must fail.
PLAINTIFF'S
COUNSEL:
…...........
Adv
A F Arnoldi, SC
APPLICANT'S
ATTORNEYS:
........
COUZYN,
HERTZOG & HORAK
…
........................................................
Middelstraat
321
…
........................................................
BROOKLYN
…
........................................................
PRETORIA
…
.......................................................
TEL:
012-460 5090
…
.......................................................
FAKS:
012-346 7473
…
......................................................
(VERW:
MNR OOSTHUIZEN/AK/D5858)
DEFENDANT'S
COUNSEL;
….....
Adv
B H Swart SC
DEFENDANT'S
ATTORNEYS;
......
STRYDOM
BRITZ MOHULATSIING
…
.......................................................
Gebou
A, lste Vioer
…
.......................................................
Glenwood
Kantoorpark Spritelaan
…
.......................................................
266
FAERIE GLEN
…
......................................................
PRETORIA
…
.....................................................
(VERW:
W NOLTE/mj/SK45508)