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[2010] ZAGPPHC 253
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Lekkerrus Bestuursonderneming v Coetzer and Others (34620/09) [2010] ZAGPPHC 253 (17 December 2010)
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 34620/09
DATE:17/12/2010
In the matter between
LEKKERRUS
BESTUURSONDERNEMING
......................
..
PLAINTIFF
And
G. J. B.
COETZER
.......................................................................
1
ST
DEFENDANT
H. R.
LEMMER
............................................................................
2
ND
DEFENDANT
C. L.
VILJOEN
.............................................................................
3
RD
DEFENDANT
R. C.
FROBES
.............................................................................
4
TH
DEFENDANT
E.
MYBURGH
..............................................................................
5
TH
DEFENDANT
N. C. VAN DEN
BERG
...............................................................
6
TH
DEFENDANT
J. A.
LOUBSER
...........................................................................
7
TH
DEFENDANT
D. P.
VISAGIE
..............................................................................
8
TH
DEFENDANT
JUDGMENT
MSIMEKI, J
INTRODUCTION
[1]
The
Plaintiff instituted two actions under two different case numbers,
namely case no: 11748/07 and 34620/09. Under case no. 11748/07,
the
action was brought by five close corporations and two individuals.
The Plaintiff, in the action is the fifth Plaintiff while
under case
no: 43620/09 the Plaintiff is the only Plaintiff. Case 11748/07 has a
number of claims. Claim 5 was, in terms of Rule
33 (4), by agreement
between the parties, postponed
sine die
while claim 6 was abandoned at the commencement of the trial.
Paragraph 3.1 of the particulars of claim under case no: 34620/09
shows that the action is instituted in the alternative to claim 5
under case no: 11748/07 where Klub Lekkerrus/Libertas is the
first
Defendant and in which the Plaintiff claims contractual damages
against the first Defendant based on the repudiation of the
management agreement. It is apparent from paragraph 3.2 of the
current action that the Plaintiff intends to consolidate the two
actions once the pleadings in the current action (under case no:
34620/09) are closed. The idea is to have the two matters heard
together after the consolidation of claim 5 under case 11748/07 and
the alternative claim to claim 5 under case no: 34620/09.
THE
PARTICULARS OF THE ALTERNATIVE CLAIM TO CLAIM 5 UNDER CASE 34620/09.
[2] The Plaintiff, in
paragraph 4.1, alleges that there are two management agreements, the
first concluded by Club Lekkerrus and
Lekkerrus Bestuursondernemings
BK and the second concluded by Club Libertas and Libertas
Bestuursondernemings BK. These agreements
are annexures “A”
and “B” to the particulars of claim under case no
34620/09. Lekkerrus Bestuursondernemings
BK, the managing agent,
agreed to manage and administer the property time-sharing scheme of
Club Lekerrus, the developer, in terms
of the agreement (annexure
“A”) while Libertas Bestuursondernemings BK, the other
managing agent, agreed to manage
and administer the property
time-sharing scheme of Club Libertas, the other developer in terms of
the other agreement (annexure
“B”). Club Lekkerrus’s
head office in terms of the agreement was at portion 7 of the farm
Welgevanden 343 situated
in the district of Potgietersrus,
Registration KR Transvaal. Club Liberta’s head office was
situated at portion 11 (called
Libertas) of the farm Welgevoden 343
in the district of Potgietersrus Registration Division KR, Transvaal.
Lekkerrus Bestuursondernemings
BK and Libertas Bestuursondernemings
BK appear to have had the same address as their head office. The
parties in the two agreements
were duly represented. The two
agreements embody the rights and obligations of the parties therein.
[3] The
Plaintiff in paragraph 4.2 avers that in 1991 the two clubs merged
and became Lekkerrus/Libertas. It is further alleged
by the Plaintiff
that it
“(by ooreenkoms tussen alle
relevante partye in terme van bestuurskontrakte alleen voortgegaan om
as bestuuragent van die
twee oorde op te tree. Die twee oorde het
afsonderlik bly voortbestaan as Lekkerrus en Libertas, maar is beheer
deur Klub Lekkerrus/Libertas,
‘n vrywillige vereniging sonder
winsbejag, gestig in 1991)”.
[4] The Plaintiff in
paragraph 4.4 of the particulars of claim further alleges that the
first Defendant under case no:11748/07 (Lekkerrus/Libertas)
honoured
its obligations in terms of the two management agreements while it
managed the two resorts in accordance with the two
agreements. The
Plaintiff further contends that it became entitled to payments of
amounts mentioned under paragraphs 4.5.1 to 4.5.3
by reason of the
fact that it managed and administered the two resorts.
[5] The Plaintiff in
paragraph 5.3 alleges that the Defendants under case 34620/09
collectively attempted to cancel the two management
agreements by
means of a letter from Attorneys Smith Inc. dated 2 February 2007
(annexure “C” to the particulars of
claim) and physically
prevented it from doing its work in terms of the agreements. This,
according to the Plaintiff, caused it
to lose income, which,
according to it, is claimable from the Defendants. The Plaintiff
specifically avers that the Defendants
were not authorised to act on
behalf of Club Lekkerrus/Libertas as its trustees and that they did
not act in accordance with regulations
6(a) and (b) of Act 75 of
1983.
[6] The first, third,
fifth sixth and eighth Defendants excepted to the particulars of
claim on the basis that they do not disclose
averments necessary to
sustain an action. The grounds on which the excipients rely are that:
6.1 The
Plaintiff is a party u
nder case no:
11748/07;
6.2 The first, third,
fifth, sixth and eighth Defendants are not parties in that action;
6.3 The Plaintiff’s
claim as embodied in paragraphs 3.1 and 3.2 is an alternative claim
to claim 5 under case no: 11748/07
which is a conditional claim which
will fall away once claim 5 succeeds in the other claim;
6.4 The Plaintiff is,
accordingly not entitled to bring a conditional claim in this action;
6.5 The Plaintiff’s
case is that the first, third, fifth, sixth and eighth Defendants are
personally liable for the actions
of the club which is a voluntary
association on the ground of “mededaderskap”;
6.6 Where judgment is
given against a club, all its members are, in any event, equally
liable where the club fails to satisfy such
judgment;
6.7 consequently the
facts pleaded in paragraphs 4, 5, 6 and 7 of the particulars of claim
in the current action are irrelevant
to establish the Plaintiff’s
claim. The excipients placed the exception on the roll once it became
clear that the Plaintiff
had not removed or addressed their
complaints. This resulted in the matter coming before me.
DISPUTE
[7] Mr
Botha
, on behalf of the excipients,
contended that the Plaintiff’s particulars of claim fail to
disclose a cause of action while
Mr Kruger, on behalf of the
Plaintiff, holds a different view.
COMMON CAUSE FACTS
[8] The following facts
are common cause:
8.1 that the Plaintiff
has instituted two actions under case no: 11748/07 and 34620/09;
8.2 that the Plaintiff is
the fifth Plaintiff under case 11748/07 while it is alone under case
no 34620/09;
8.3 the Plaintiff in the
two cases basis its claim on the wrongful ending of the management
agreements with club Lekkerrus/Libertas;
8.4 The first, second,
third, fifth, sixth, seventh and eighth, Defendants are not parties
under case 11748/07;
8.5 Annexure
“C” to the current Plaintiff’s particulars of claim
is a letter from Attorneys Smith Inc. which cancels
the management
agreement with immediate effect. The
letter
is dated 2 February 2007;
8.6 The
second and the seventh Defendants in this action
are
not parties under case 1174/07
[9] I,
in resolving the issue, need to look at the pleading excepted to as
it stands in the light of the grounds proffered by the
excipients.
(See in this regard
Salzmann v Holmes
1914 AD 152
at 156 and Burger v Rand Water Board and Another
2007 (1)
SA 30
(SCA) at 32 D - E
). No facts
outside these stated in the pleading should be brought into issue
save in the case of inconsistency (See
Soma
v Morulane NO
1975 (3) SA 53
(T)
). No
reference may be made to any other document either. (See
Johnston
v Leal
1980 (3) SA 927
(A) at 947 H and Dilworth v Reichard
[2002] 4
All SA 677
(W) at 681 j – 682 a
)
[10] It
must be remembered that claim 5 under case no 11748/07 is still
pending, it having been postponed
sine
die
in terms of Rule 33(4) by agreement
between the parties. The current matter has been introduced with a
view to a consolidation which,
according to the Plaintiff, will occur
once the pleadings are closed in the current matter. Claim 5 is,
accordingly, still pending.
While it is in fact so that some of the
parties under case 34620/09 are not parties under case 11748/07,
these parties, in so far
as claim 5 and the alternative are concerned
will eventually be parties after the consolidation. Having regard to
the fact that
claim 5 and the alternative claim will be decided at
the same time, it becomes difficult to understand and accept the
Defendants’
objection to the particulars of claim. Again,
having regard to annexure “C”, the letter cancelling the
management agreement,
it becomes inexplicable why the Defendants
contend that the Plaintiff’s particulars of claim disclose no
cause of action.
While it may well be so that the members of a club
may ultimately be held responsible for the satisfaction of an
unsatisfied judgment
against a club, I find no fault with the manner
in which the Plaintiff’s particulars of claim have been set
out. Confining
ourselves to the pleading excepted to by the
Defendants and applying the
principles referred to in
paragraph 9 above to the exception as it stands, in my view, there
seems to be merit in Mr Kruger's submissions.
I, therefore, find it
difficult to agree with Mr Botha's submissions especially if regard
is had to the grounds of the exception
as they stand. The exception,
in my view, stands to be dismissed with costs.
[11]
In the result, the order I make is as follows: The exception is
dismissed with costs.
M.W.
MSIMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 11 August 2010
For
the Excipient/Defendant: Adv. Botha
Instructed
by: Frans Rabie Prokureurs
For
the Respondent/Plaintiff: Adv. Kruger
Instructed
by: Marius Coertze Prokureurs
Heard on: 11 August 2010
For the
Excipient/Defendant: Adv. Botha
Instructed by: Frans
Rabie Prokureurs
For the
Respondent/Plaintiff: Adv. Kruger
Instructed by: Marius
Coertze Prokureurs