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[2023] ZAFSHC 55
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Ferreira v Senekal and Others (223/2020) [2023] ZAFSHC 55 (17 February 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 223/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/ NO
In
the matter between:
MACHTILT
SUSANNA FERREIRA PLAINTIFF
and
FREDERICK
JACOBUS SENEKAL 1st
DEFENDANT
MATSEPES
INC 2nd
DEFENDANT
FJ
SENEKAL INC 3rd
DEFENDANT
CORAM:
NAIDOO,
J
HEARD
ON:
23
AUGUST 2022
DELIVERED
ON:
17
FEBRUARY 2023
JUDGMENT
– APPLICATION TO AMEND SUMMONS
[1]
This is an application by the plaintiff to amend the Summons and
Particulars of Claim. The trial of this matter
commenced on 3 May
2022, and is currently partly-heard before me. For convenience and to
avoid confusion, I will refer to the applicant
as the plaintiff and
the respondents collectively as the defendants or individually where
necessary. The plaintiff issued summons
against the three defendants,
namely the first defendant, Frederick Jacobus Senekal (Mr Senekal),
the second defendant, Matsepes
Inc ( Matsepes or the 2003 company),
the third defendant, FJ Senekal Inc for payment of monies owed to
her, which she alleges was
paid to the first and second defendants
for professional services rendered to her. She alleges that the first
defendant made certain
fraudulent representations to her which
resulted in her paying the money to him and the second defendant. The
relief claimed in
the summons reads,
inter alia
, as follows:
“
1.
Payment of the amount of R412 042.74;
2.
Payment of interest on the amount of R412 042.74 at the rate of
9.5% per annum
a tempora morae
;
3.
Costs of suit.”
[2]
The background to the matter is that during 2016, the plaintiff
instructed Mr Senekal to represent her in
motion proceedings in this
Division, and Mr Senekal accepted the mandate, and subsequently
launched an application on her behalf,
in this court. The plaintiff
alleges that Mr Senekal, in representing her, as a director of the
second defendant, fraudulently
represented to her that he was an
admitted attorney, who was in possession of a valid fidelity Fund
Certificate (FFC) and had complied
with all legal requirements to
represent her, as set out in the Attorney’s Act 53 of 1979,
which was applicable at the time.
It is not in dispute that over a
period of time, he issued several invoices for disbursements and
professional services rendered,
which the plaintiff paid in the total
amount of R412 042.74. Such payments were made into the Trust
Account of the second
defendant.
[3]
The plaintiff asserts that she was induced by the fraudulent
misrepresentation made by Mr Senekal to pay the
said amount in the
belief that he was entitled to charge such fees and disbursements and
that such amounts were due, owing and
payable to him. The plaintiff
claims that she is entitled to be reimbursed in the amount of
R412 042.74. together with interest
thereon, as claimed in the
summons.
[4]
As I indicated, the trial commenced and the evidence of the plaintiff
and Ms Christina Jacoba van der Merwe
(formerly Marais) was led, at
the end of which the matter was adjourned for the plaintiff to
properly investigate and consider
the issues raised in Ms van der
Merwe’s evidence, after the late introduction by the first and
third defendants of a FFC,
which they alleged was relevant to this
matter. When the matter resumed on 23 August 2022, the applicant
applied to file a supplementary
affidavit to deal with new evidence
in respect of the second defendant’s identity, that had come to
her attention after the
previous adjournment and shortly before the
hearing on 23 August 2022. There was no opposition to this
application and it was accordingly
granted as prayed. The plaintiff
also filed an application to amend her Summons and Particulars of
Claim by deleting the reference
to the second defendant as “Matsepes
Inc” and replacing it with “Matsepes (Bloemfontein) Inc,
with registration
number 1998/020850/21.” The plaintiff sought
costs of the application in the event that the application was
opposed. This
application was opposed by the second defendant, who
had also filed a Notice of Objection to the proposed amendment.
[5]
I pause to mention that during the course of the plaintiff’s
viva voce
evidence in court , it emerged that the second
defendant (Matsepes Inc) and Matsepes (Bloemfontein ) Inc are two
separate entities
with different registration numbers, who practise
from the same premises. The registration number of the second
defendant is 2003/023083/21
(the 2003 company), while that of the
Matsepes (Bloemfontein) Inc is 1998/020850/21 (the 1998 company). The
plaintiff asserts that
at the time that Summons was issued she was
unaware of the existence of two separate entities, as Mr Senekal,
when he rendered
the services to her, appears to have done so as a
representative of both entities. He intermittently used two different
letterheads
in the course of dealing with her matter. She made all
payments into the Trust Account of Matsepes (Bloemfontein) Inc. By
way of
example, the plaintiff attached to her Founding Affidavit, two
invoices. The first one (MSF1), dated 2 May 2017, is headed “
Matsepes
Inc”
, with no company registration number. At the bottom of
the invoice, banking details of the company are provided as follows:
“
Matsepe Inc,. Trust Account, Standard Bank of S.A. Limited,
Brandwag, Acc. : [....], Code : 055534.”
The file number on
this invoice was reflected as “
FER37/0001”
and the
subject matter was ostensibly “
Japie De Vos Boerdery Trust
// The Raisin Company”.
[6]
Approximately three months later she received another invoice dated
31 August 2017 (MSF2), which was headed
“
Matsepes
(Bloemfontein) Inc/Ing, Reg. No. 2003/023083/21.”
The
matter in respect of which the invoice was rendered is reflected as
“
Ferreira/ N.P. Maree N.O & The Master of the High Court
Bloemfontein”
. The file number on the invoice is
“
FER37/0001”
. The banking details reflected at the
bottom of the invoice are as follows: “
Matsepe Inc,. Trust
Account, Standard Bank of S.A. Limited, Brandwag, Acc. : [....], Code
: 051-001”.
I mention that the letterhead of the covering
letter to which the invoice was attached bears the same details as
the invoice, and
sets out the banking details as reflected on the
invoice, with an instruction to pay into that account. It also bears
mentioning
that the address, contact and postal details are identical
to the invoice dated 2 May 2017. The plaintiff, being unaware that a
different company with different banking details was reflected on the
invoice, paid the amount due on the invoice dated 31 August
2017 into
the account of Matsepes (Bloemfontein) Inc with the banking details
as reflected on the invoice dated 2 May 2017, having
ostensibly saved
that account number on her banking profile. She attached proof of
such payment.
It
is not in dispute that the account into which the plaintiff made
payments was the bank account of the 1998 company
[7]
The plaintiff asserts that the first time she became aware that there
were two separate companies was when
the respondents filed their plea
to the Summons. In her reply to the plea she asserted that she was
never informed that two separate
entities (being the 1998 company and
the 2003 company) practised from the same address. It is, however,
common cause between the
parties that the plaintiff contracted with
Matsepes (Bloemfontein) Inc and, as indicated, that all payments,
(and specifically
the amount of R412 042.74 claimed in the
summons) that she made were paid into the Trust Account of Matsepes
(Bloemfontein)
Inc, (the 1998 company). In addition, the FFC, issued
by the Legal Practice Council (LPC), and which was attached to the
papers,
reflects that the FFC was issued to Mr Senekal “
of
Matsepes Reg 1998/020850/21”.
[8]
The plaintiff asserts that a company search revealed that the 1998
company is listed as “Matsepes (Bloemfontein)
Inc” and
the 2003 company is listed as “Matsepes Inc”, yet the
correspondence and other documents between the
plaintiff and Mr
Senekal refers interchangeably, to the 1998 company as Matsepes Inc
and the 2003 company as Matsepes (Bloemfontein)
Inc. In the plea of
the respondents, they refer to the 1998 company as Matsepes
Bloemfontein Inc (without the brackets), creating
more confusion.
After the plaintiff’s application to file a supplementary
affidavit was granted, she did in fact file
such an affidavit,
attaching the correspondence that passed between the LPC and the two
Matsepes entities. After receiving complaints
from members of the
public, the LPC launched an investigation to ascertain exactly what
the position is with the two entities (the
1998 and the 2003
company), who were the directors of each, and why their respective
details were used interchangeably in the same
matter. It appears that
this aspect may well still be the subject of further evidence to be
led in this matter.
[9]
For this reason, I do not propose to deal in detail with this aspect,
save to say that there was seemingly
a great deal of confusion
created by the directors of both the 1998 company and the 2003
company, which warranted the attention
of the LPC, as such practices
were in conflict with the Legal Practice Act and the Rules of the
LPC, and, as pointed out by the
plaintiff, the Companies Act as well.
It seems that, as a result of this, the LPC was not able to
distinguish the Trust Accounts
of the two companies, and addressed
several questions to the respective directors in order to obtain
clarification.
[10]
The Answering Affidavit of the second defendant (the 2003 company)
was deposed to by Paul De Lange, in his capacity as
a director of
that company. According to the electronic search of the database of
the Companies and Intellectual Property Commission
(CIPC), Mr De
Lange was appointed as a director of the 2003 company on 15 February
2021. This is not in dispute. In her Replying
Affidavit, the
plaintiff raised a point
in limine
, in which she argued that
the content of the Answering Affidavit, in its entirety, constitutes
inadmissible hearsay evidence, and
falls to be struck out with an
appropriate order as to costs. The plaintiff bases this assertion on
the following grounds:
10.1 Mr De
Lange was appointed as director of the second defendant on 15
February 2021, whereas the cause of action
between her and Mr Senekal
arose during 2017, approximately four years before Mr De Lange became
a director.
10.2 he
provides no factual background or substantiation for his allegation
that he has personal knowledge of this matter,
nor does he make any
allegation of having any involvement in or personal knowledge of the
entity known as Matsepes (Bloemfontein)
Inc. Therefore, he cannot
have personal knowledge of the facts of this matter. The only person
with such knowledge and who could
swear positively to the facts is Mr
Senekal, who chose not to respond to the issues raised in the
Founding Affidavit, either by
way of opposing the Application to
Amend or by filing a Supporting Affidavit to the Answering Affidavit.
[11]
The plaintiff, in any event replied to the Answering Affidavit, and
repeatedly points out that Mr De Lange either makes
allegations, or
fails to tender crucial explanations, when such were required,
indicating that he does not have personal knowledge.
I will mention
some of these aspects in the course of this judgment. Mr De Lange
readily concedes that all the payments made by
the plaintiff were
deposited into the Trust account of the 1998 company. He pointedly
alleges that he is a director of the 2003
company, and not of the
1998 company, creating the impression that he has no involvement with
the 1998 company. He also makes much
of the fact that the plaintiff
knew as long ago as June 2020, when the plea was filed that there
were two companies in existence,
and, further, that had she taken the
trouble to conduct a CIPC search before issuing summons, she would
have known which company
she had to sue. As an attorney with
seventeen years’ experience, she ought to have done so to
prevent the predicament she
finds herself in now.
[12]
He alleges further that this application is an application to
substitute a party, disguised as an application to amend
the summons.
He also denied that there will be no prejudice to the second
defendant if the application is granted. The second respondent
would
cease to be a party to these proceedings and would be out of pocket
in respect of the costs of this matter, as it was “dragged”
through expensive litigation and trial by the plaintiff. The court
should therefore award costs in its favour.
[13]
It is well established in our law that an amendment to a summons will
usually be granted unless it causes prejudice to
the other party,
which cannot be cured by an appropriate order for costs. In this
matter the conduct of Mr Senekal, who represented
the plaintiff
clearly caused confusion and the plaintiff cannot be blamed for
concluding that such misrepresentations were intentional
and designed
to extract money from her. From a perusal of the summons and
annexures thereto, it is clear that the 1998 and 2003
companies are
so intertwined that it is not immediately possible to distinguish the
one from the other, for instance the covering
letter and invoice
dated 31 August 2017 bears the name of the 1998 company but the
banking details of the 2003 company, with an
instruction in the
covering letter to pay into the latter account. The plaintiff had
previously added the details of the 1998 company
as a beneficiary on
her banking profile, and simply proceeded to make payment into that
bank account. If it is not pointedly brought
to the attention of the
reader that this was a different bank account to the one the
plaintiff previously made payment to, it would
be almost impossible,
as day-to-day commercial transactions go, to spot the difference.
[14]
The LPC itself had difficulty in distinguishing between the Trust
Accounts of the two entities. As I pointed out earlier,
the address,
postal and contact details of both entities are identical, making it
very difficult to tell them apart. It is only
the defendants who
would have knowledge of the true situation regarding the professional
and commercial/ financial operations of
the two entities. The summons
and annexures thereto make it abundantly clear that the plaintiff
transacted with the 1998 company,
paid all amounts claimed to that
entity, and that in citing the second defendant as she did, she
clearly intended to cite the 1998
company, and not the 2003 company.
Any person, and particularly a qualified and experienced attorney,
would have immediately realised
this.
[15]
Mr De Lange only joined the 2003 company in February 2021, and I am
in agreement with the plaintiff’s submissions
that he would not
have personal knowledge of anything that occurred prior to his
appointment as director of the 2003 company. He
offers no explanation
as to how the details of the two entities were used so
interchangeably, nor can he reasonably have done so
because of a lack
of personal knowledge. He merely alleges that the details of the 2003
company appeared “erroneously”
on the letterhead of the
1998 company, without any further explanation. He has given no
indication of how he acquired the knowledge
he did, and I am not
inclined to have regard to allegations he has made about facts or
events prior to February 2021.
[16]
The directors of the 2003 company should and ought to have realised
immediately upon receipt of the summons that the
1998 company was the
intended second defendant. They said nothing about this and chose to
defend the matter. I mention that the
third defendant was on record
as the legal representative of all three defendants in filing the
Notice to Defend. Mr Senekal, with
intimate knowledge of who the
plaintiff transacted with, is the sole director of the third
defendant. His failure to draw this
to the attention of the directors
of the 2003 company and then proceed to defend the matter in respect
of all three defendants
is questionable. The election of Mr Senekal
and the third defendant not to oppose the Application to Amend the
Summons, and Mr
Senekal’s failure to explain those matters
which Mr De Lange unsuccessfully attempted to do, are also telling.
[17]
As I indicated earlier, there is no dispute that it was the 1998
company that the plaintiff signed an agreement with
when she
instructed Mr Senekal to represent her, and that it was into the bank
account of the 1998 company that all invoiced amounts
were paid. It
is also not in dispute that, at the time she issued the summons in
this matter, she was unaware of the existence
of two separate
entities using the name “
Matsepes Inc
”. The 2003
company, Matsepes Inc, was well aware of the situation after receipt
of the summons, but chose to defend the matter
regardless. It begs
the question why the 2003 company would do so. Mr De Lange, clearly
with full knowledge of this situation,
communicated with the
plaintiff’s attorney two months prior to the date on which the
trial was scheduled to commence, enquiring
if the plaintiff was
proceeding with the action. The plaintiff’s attorneys responded
immediately and questioned his interest
in the in the matter, whether
his firm is representing Matsepes (Bloemfontein) Inc (1998) or
Matsepes Inc (2003) and requested
him to explain the relationship
between these ostensibly two identical entities using the name
“Matesepes”. Mr De Lange
did not respond to that letter
at all.
[18]
In my view, it would have been immediately clear to the defendants,
and particularly the second defendant that it was
the 1998 company
and not the 2003 company that was the intended second defendant. It
is obvious that the 2003 company did nothing
to draw to the
plaintiff’s attention at that stage that there were two
separate entities and that she had cited the 2003
company, as would
be expected of a courteous, collegial and
bona fide
colleague.
The 2003 company chose to defend the matter and enter into protracted
litigation, knowing full well that it was not
the second defendant.
Any costs it incurred in the process is of its own doing and it is
not open to the 2003 company to look to
the plaintiff for such costs.
[19]
In view of what I have said about the manner in which the two
entities conducted themselves, that fact that the two entities
were
so intertwined in their interactions with the plaintiff, the latter
could not be blamed for citing the 1998 company incorrectly.
I was
referred to the matter of
Mutsi
v Santam Versekeringsmaatskappy Bp en ‘n Ander 1963(3) SA 11
(O)
, where the
facts are similar to the present matter. The court in that matter
cited, at p17G, the matter of
De
Stadler v Morris,
9 S.C. 480
at 481
,
where the court remarked:
'The
main object of a summons is to bring a defendant against whom claim
is made into Court. If the Court is satisfied that the
summons has
been duly served on him, and that he knows that it is intended for
him a misdescription of the defendant ought not
to be held fatal to
the summons. The Court has ample powers of amendment and ought not to
scruple to exercise them in such a case.'
[20]
The remarks of the court in
De Stadler
are apposite in this
matter. I am satisfied that the summons was served on Matsepes
(Bloemfontein) Inc, that it is in fact the
1998 company referred to
in this judgment, that it knew that the summons was intended for it
and that it was in fact the plaintiff’s
intention to bring the
1998 company to court. I am accordingly of the view that the
plaintiff is entitled to the relief she seeks.
It is further my view
that the opposition of Matsepes Inc, was unnecessary and frivolous,
and the court would be justified in expressing
its displeasure at
such conduct by making an appropriate order as to costs.
[21]
In the circumstances, the following order is made:
21.1
The Applicant/Plaintiff’s Summons and Particulars of
Claim be amended by deleting the reference to the Second
Defendant as
“Matsepes Inc”, everywhere it appears, and replacing it
with “Matsepes (Bloemfontein) Inc, Registration
number
1998/020850/21”;
21.2
Matespes Inc, Registration number 2003/023083/21 is directed to pay
the Applicant/Plaintiff’s costs of this
application;
21.3
Matsepes Inc 2003/023083/21 will bear its own costs, if any, in this
matter
S
NAIDOO J
On
behalf of the Plaintiff: Adv
FG Janse Van Rensburg
Instructed
by: Conradie
Attorneys
14
Bontebokboog Street
Woodlands
Wildlife Estate
Bloemfontein
On
behalf of the 1st
&
3
rd
Defendant: Unopposed
Attorneys: FJ
Senekal Inc
117
Pres Steyn Avenue
Westdene
Bloemfontein
(Ref:
Mr Coetzee)
On
behalf of 2
nd
Defendant Adv
WJ Groenewald
Instructed
by: Matsepes
Inc
24-28
Aliwal Street
Bloemfontein
(Ref:
Mr De Lange: MAT/248/0001)