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[2011] ZAECPEHC 57
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Altech Netstar Fleet Management (Pty) Ltd v Scheepers (1529/2009) [2011] ZAECPEHC 57 (13 December 2011)
IN THE HIGH COURT OF
SOUTH AFRICA NOT REPORTABLE
EASTERN CAPE, PORT
ELIZABETH
Case No.: 1529/2009
Date Heard: 1 December
2011
Date Delivered: 13
December2011
In the matter between:
ALTECH NETSTAR FLEET
MANAGEMENT (PTY)
LIMITED
…............................................................................
Applicant
and
ANERI SCHEEPERS
…..........................................................
Respondent
JUDGMENT
EKSTEEN J:
[1] This is an
application to amend the summons issued by the applicant herein and
the subsequent declaration filed. A number of
procedural disputes
emerged from the papers filed in this application. At the hearing of
the application agreement was reached
in respect of these disputes
and where necessary orders as were required were made. What remains
for consideration accordingly
is the merits of the application for
amendment.
The history
[2] The applicant (the
plaintiff in the main action, to whom I shall refer as the applicant)
issued a simple summons against the
respondent (the defendant in the
main action to whom I shall refer as the respondent) in which it
claimed:
“
Payment in
the sum of
R120 458.33
,
being, outstanding, due and payable by the Defendant to the Plaintiff
in respect of Services Rendered by the Plaintiff to the
Defendant,
for the period up to May 2008, at the latter’s special instance
and request, in terms of an written agreement,
marked Annexure “A”.”
[3] Annexure “A”
to the summons (to which I shall refer as “annexure A”)
consists of a document headed “Vigil
Transaction Schedule”
signed by the respondent and dated 23 August 2006 together with a
number of other documents annexed
thereto. Upon receipt of the
summons the defendant duly entered an appearance to defend and
summary judgment proceedings followed.
Thereafter the plaintiff filed
a declaration. In the declaration the plaintiff alleges:
“
3. On or
about 23 August 2006, and at Port Elizabeth, a written offer was made
by the defendant, acting personally, to the plaintiff.
A copy of the
aforesaid written offer, together with annexures thereto is annexed
hereto, marked annexure “POC 1.”
4. The following are the material,
express,
alternatively
implied and/or tacit, terms of the
aforesaid written offer:
4.1 ...
5. Pursuant to the aforesaid written
offer by the defendant, the plaintiff, represented by a duly
authorised representative, and
at its head office in Midrand,
Gauteng, accepted the defendant’s written offer.
6. Consequently, a written agreement
came into being between the parties constituted by Annexure “POC1”
hereto.”
(I shall refer herein
to Annexure “POC1” to the declaration as “annexure
POC1”).
[4] And later:
“
11. As at
end of May 2008, the defendant was indebted to the plaintiff in the
sum of R120 458,33 in respect of services rendered
by the
plaintiff to the defendant, together with ancillary charges as
contemplated by the agreement. A statement setting out how
the
balance of R120 458.33 is calculated is attached hereto marked
Annexure “POC2”.”
[5] The “offer”
referred to in paragraph 3 of the declaration is the same “Vigil
Transaction Schedule” annexed
to annexure A, together with
various documents reflected as annexures. Some of these annexures are
dated, others are not. Those
documents which are dated are all dated
during August 2006.
[6] Whilst the
declaration does not specifically aver a date upon which the
agreement was concluded it is apparent that the applicant
contends
for a contract concluded during or about August 2006 and consisting
of the “Vigil Transaction Schedule” signed
by the
respondent on 23 August 2006 and the annexure annexed thereto. A
comparison, however, of the annexure A and annexure POC1
reveals that
not all documents included in annexure A are included in annexure
POC1. Notwithstanding this inconsistency the respondent
did not
contend that the declaration was vague and embarrassing and did not
raise an exception. It proceeded to plead to the declaration.
In its
plea it admitted only that annexure POC1 was annexed to the
declaration but denied the further averments contained in paragraph
3
thereof. It then proceeded to plead as follows in respect of
paragraphs 3, 4 and 5 of the declaration:
“
3.2 In
amplification to the denial aforesaid, the Defendant pleads:
3.2.1 At all times material to the
offer being made by the Defendant to the Plaintiff, the Defendant
acted as the authorised agent
of Alpha Omega Plant Hire (Pty) Limited
trading as Alpha Omega Plant Rentals (“Alpha Omega”) in
terms of a written
authority, “A” hereto.
3.2.2 The Plaintiff’s
representative, one Cuan Smith, (“Smith”) was at all
times material to the completion and
submission of “POC1”
by Defendant, aware of the capacity in which the Defendant signed
“POC1”, to wit,
as the disclosed and authorised agent of
Alpha Omega.
3.2.3 Accordingly, the Defendant is
not liable to the Plaintiff as claimed or at all.
3.3 The Defendant pleads that in the
event that this Honourable Court finds that she signed the written
offer in her personal capacity,
and in that event only, the Defendant
pleads that:
3.3.1 The written offer, “POC1”
was entered into by the Defendant in the
bona fide
and
reasonable but erroneous belief that she was acting as the disclosed
and authorised agent or representative of the Alpha Omega
as
contained in “A” hereto; and
3.3.2 Plaintiff, represented by
Smith, appreciated that the Defendant signed the written offer,
“POC1”, under the misapprehension
that she was acting as
aforesaid, and not in her personal capacity.
3.3.3 Accordingly, the written offer
“POC1” is unenforceable and the Defendant is not liable
to the Plaintiff as claimed
or at all.
4.
AD PARAGRAPH 4:
4.1 Insofar as the sub paragraphs
4.1 to 4.24 purport to be a summary of the terms of “POC1”,
they are admitted, but
to that extent only.
5.
AD PARAGRAPH 5:
5.1 The Defendant has no knowledge
to the averments contained in this paragraph and makes no admissions
thereanent and put the Plaintiff
to the proof thereof.”
[7] This was followed
by a replication filed by the applicant in which it denied the
essential averments pleaded in paragraph 3
above. The replication was
followed by a rejoinder filed on behalf of the respondent. All of
these pleadings were filed pursuant
to the case set out in the
declaration. It is apparent from the pleadings that central dispute
between the parties is not so much
the terms of the agreement pleaded
but rather the capacity in which the respondent acted in concluding
the agreement, alternatively
the
bona fide
belief which she
held in respect of her capacity.
[8] Sometime after the
close of pleadings the applicant filed a notice of intention to
amend. What remains of the notice of intention
to amend, after the
agreements reached to which I have referred above, is an application
to delete from the simple summons two
documents annexed as part of
annexure A and which do not appear in annexure POC1 and to insert
three documents in annexure POC1
which do appear in annexure A.
[9] A notice of
objection was duly delivered. The essence of the objection relates to
the deletion of the two documents from annexure
A. The first is a
very brief authority issued unilaterally by Alpha Omega. It purports
to authorise the respondent, on their behalf,
to install Altech
Netstar’s Vigil and VDU450 (Early Warning Systems) in their
vehicles as discussed and agreed with them.
[10] The second
document is a letter dated 22 August 2006 ostensibly signed on behalf
of Alpha Omega Plant Rentals, the applicant
and by the defendant.
This document is on an Alpha Omega Letterhead and the significant
portions thereof record as follows:
“
The
following were agreed to by both parties:
Aneri Scheepers will enter into an
agreement with Altech Netstar.
Aneri Scheepers will cede or
delegate her rights and obligations in terms of the agreement with
Altech Netstar to Alpha Omega
Plant Rentals (Pty) Limited for the
duration of her association with Alpha Omega Plant Rentals (Pty)
Limited.
…
…
The following changes will be
affected to the standard Altech Netstar Agreement:
…”
[11] The essence of the
objection is to be found in paragraphs 5 and 6 of the notice of
objection. The respondent contends that
these documents constitute a
material part of the Agreement relied upon by the applicant and that
its deletion from the declaration
(
sic
) would have the effect
of substituting the Agreement relied on in the summons with an
Agreement which is materially different from
that originally pleaded
and which has the effect of introducing a new cause of action against
the defendant which has prescribed
and is thus objectionable.
Legal position
[12] In the
consideration of an application for amendment the primary principle
as it has developed in our law is that an amendment
will be allowed
in order to permit the proper ventilation of the dispute between the
parties so as to determine the real issues
between them in order that
justice may be done. Flowing from this primary principle it follows
that an amendment will usually be
granted unless the application is
mala fide
or will result in an injustice to the other side
which cannot be compensated for by an award for costs. Compare
Trans-Drakensberg Bank Limited v Combined Engineering
(Pty) Limited and Another
1967 (3) SA 632
(D&CLD)
at 638A-B and the authorities set out therein.
[13] In the present
matter the claim was initiated by a simple summons. Where the claim
is for a “debt or liquidated demand”,
as was the case in
this matter, the form of the summons does not embody all the
particulars of claim, although it must set out
the nature of the
claim. It is a feature of this kind of summons that it is followed in
due course by full particulars of claim
in the form of a declaration,
only if the defendant delivers a notice of intention to defend. The
declaration must then set out
the full particulars of the plaintiff’s
claim. In
Hermansberg Mission Society v Minister for Native
Affairs
and Others
1910 TPD 832
at 837 Wessels
J stated as follows:
“…
I
think it is inherent in the very nature of pleadings that there
should be some practice whereby the declaration shall not materially
vary from the summons …
(T)he summons must contain an
indication of what the defendant is to expect in the declaration; but
it need contain no more than
that. The declaration must not introduce
a new and totally different cause of action, of which no mention was
made in the summons.
So long, however, as the declaration contains
matter which elaborates what is set out in the summons, or which is
akin to the claim
set out in the summons, the variance is not such as
to justify the court in setting aside the declaration. The court will
not pay
any regard to a variation which does not embarrass the
defendant, and of the subject matter of which there is sufficient
indication
in the summons.”
I think that this
dictum remains equally apposite today.
[14] In the present
instance the simple summons sets out the nature of the claim. The
applicant therein claimed payment of a sum
of “money due and
payable by the defendant” in respect of “services
rendered by the plaintiff to the defendant”
in terms of a
written contract “entered into with the respondent”. The
simple summons alleged that the contract consisted
of a bundle of
documents marked “A” from which it is apparent that the
agreement contended for was concluded during
or about August 2006 as
a result of the “Vigil Transaction Schedule” singed by
respondent on 23 August 2006.
[15] The claim set out
in the declaration is for the self same sum of money which is alleged
to be due in respect of “services
rendered by the plaintiff to
the defendant”, together with ancillary charges as contemplated
in the Agreement. The declaration
contends for an Agreement concluded
during or about August 2006 pursuant specifically to the “Vigil
Transaction Schedule”
dated 23 August 2006. It accordingly
contends for precisely the same cause of action set out in the simple
summons.
[16] As is evident from
the history of the pleadings set out above that the respondent did
not feel herself “embarrassed”
by the differences between
the summons and the declaration, on the contrary, she proceeded to
plead to the declaration without
demur. She did not in her plea
contend that the contract contained additional terms as set out in
the further documents in annexure
A.
[17] The amendment now
sought is aimed at bringing the summons and the declaration in line
with one another and to clarify the terms
of the agreement on which
the applicant relies. The applicant in his application for amendment
avers that when the simple summons
was issued it was represented by a
firm of attorneys who drafted the documentation. Thereafter a change
of attorneys occurred and
after consulting at length with the new
attorneys the declaration was drawn by the new attorneys on the
strength of the instructions
received during consultations. The
applicant accordingly contends that the declaration relies on the
self same Agreement that was
relied upon in the summons save that
some of the documents included in annexure A do not in fact form part
of the Agreement and
ought not have been annexed.
[18] I do not consider
that the variation contended for creates a different cause of action.
The applicant claims money is due to
it by the respondent in respect
of services rendered pursuant to a written Agreement concluded during
on or about August 2006 pursuant
to the “Vigil Transaction
Schedule” annexed both to the summons and the declaration.
There is now a dispute in respect
of the terms of the Agreement. The
applicant wishes to contend that the contract is constituted as it
contends in the declaration
as supplemented by the amendment which it
now seeks so as to permit the proper ventilation of the real issues
between them. To
that end it seeks to bring the summons in line with
the declaration. No basis has been laid for me to find that the
application
is
mala fide
. Prejudice is not raised in the
objection and I do not think that prejudice to the respondent arises.
The claim is a contractual
one and accordingly the applicant will
bear the onus to establish the terms of its contract, even if it has
to show that the documents
now deleted did not form part of the
agreement. The respondent remains entitled to plead that these
documents did form part of
the contract thus casting the said onus on
the applicant. I think that the applicant is entitled to amend its
pleadings accordingly.
[19] What remains for
consideration is the costs occasioned by the application. I have
recorded above that certain procedural disputes
existed between the
parties which were resolved prior to the argument of the application
and in respect of which orders were made
at the commencement of the
hearing. The costs occasioned by the opposed application relate in my
view solely to the respondent’s
opposition to the amendment set
out in paragraph 2 of the notice of intention to amend the summons
and paragraph 1 of the notice
of intention to amend the declaration.
It follows from what I have set out above that I do not consider that
there was merit in
the opposition to these amendments. In the
circumstances, in the exercise of my discretion I consider it to be
fair that the respondent
be ordered to pay the costs occasioned by
the opposition to the application for the amendment considered
herein.
[20] In the result I
make the following order:
1. The applicant is
granted leave to amend the summons by the deletion from annexure A to
the summons of the following documents:
the undated document
on the letterhead of Alpha Omega Plant Rentals titled “TO
WHOM IT MAY CONCERN”; and
the letter dated 22
August 2006 on the letterhead of Alpha Omega Plant Rentals
addressed to the defendant.
The applicant is
granted leave to amend its declaration by the inclusion and addition
of the following documents currently attached
as part of annexure A
to the summons, in annexure POC1 to the declaration:
Vehicle list (page 5
of Pleadings Bundle);
Alarm response sheet
and unit configuration for the Netstar Vigil Response Centre (two
pages – pages 6 and 7 of Pleadings
Bundle); and
A copy of the
defendant’s identity document (page 8 of the Pleadings
Bundle).
The respondent is
ordered to pay the costs occasioned by the opposition to the
application for an amendment.
_________________________
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances
:
For Applicant
:
Adv
Dyke
instructed by Besters, Port Elizabeth
For Respondent
:
Adv
Mullins
instructed by Robert Mitchley Attorney, Port
Elizabeth