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[2022] ZANCHC 20
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Fourie N.O and Others v Land and Agricultural Development Bank of South Africa (1425/2020;1426/2020;1427/2020;1428/2020) [2022] ZANCHC 20 (8 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1425/2020
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
In
the matter between:
JAN
HENDRIK GERHARDUS FOURIE N.O.
1
st
Applicant
JOHANNA
ELIZABETH FOURIE N.O.
2
nd
Applicant
CHRISTIAAN
KLINDT
N.O.
3
rd
Applicant
(in
their capacities as trustees of the
Stukkievrede
Familie Trust)
and
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH
AFRICA
Respondent
Case
No: 1426/2020
In
the matter between:
JAN
HENDRIK GERHARDUS FOURIE
Applicant
and
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH
AFRICA
Respondent
Case
No: 1427/2020
In
the matter between:
JAN
HENDRIK GERHARDUS SAUNDERSON N.O.
1
st
Applicant
CHRISTIAAN
KLINDT N.O.
2
nd
Applicant
SUZANNE
SAUNDERSON N.O.
3
rd
Applicant
(in
their capacities as trustees of the Jannie
Saunderson
Familie Trust)
and
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH
AFRICA
Respondent
Case
No: 1428/2020
In
the matter between:
JAN
HENDRIK GERHARDUS SAUNDERSON
Applicant
and
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH
AFRICA
Respondent
Coram
Lever J.
JUDGMENT
LEVER
J.
1.
These four cases being case numbers 1425/2020, 1426/2020, 1427/2020
and 1428/2020 are dealt with in one judgment as both the respective
applicants and the respondent agree that the issues in each
matter
are such that if one application goes one way the other 3, must of
necessity, follow to the same conclusion.
2.
Although the applicants launched 4 distinct applications the
respondent answered all 4 applications with one answering affidavit.
In doing so, the respondent relied on the contention that
in all four
applications the same issues and questions would be dealt with in
each application. The respective applicants then
filed a single
replying affidavit dealing with the answering affidavit. Confirming
in form and in substance that both respective
sides indeed shared the
view that a decision in one of the matters will of necessity mean the
same result in the other three.
3.
Furthermore, at the hearing of the matter both Mr Jankowitz
for the
respective applicants and Mr Tsangarakis for the respondent agreed
that if one application succeeded then all must succeed
and if one
application were to fail then of necessity, they must all fail.
4.
The present application is an interlocutory application under
the
provisions of Rule 30 of the Uniform Rules of Court (the Rule/s). The
applicants’ contention is that in the respective
actions, the
respondent has not complied with various provisions of Rule 18. The
details of such omissions will be dealt with presently.
5.
The respective applicants were placed under Notice of Bar on
the 22
October 2020 in the various actions relevant to this matter. The
notice contemplated by Rule 30(2)(b) was filed on the 30
October 2020
in each of the 4 matters relevant hereto.
6.
In each of
these Notices served and filed under the provisions of Rule 30(2)(b)
it was alleged that in each of the relevant combined
summonses
commencing action, the following provisions of Rule 18 were not
complied with: Firstly, failed to comply with Rule 18(1)
in that the
summons purported to have been signed by the attorney of the
plaintiff in terms of s25(3) of Act 28 of 2014
[1]
;
Secondly, Rule 18(4) in that it was alleged that the Particulars of
Claim did not set out a clear and concise statement of fact
in order
to establish a cession that is a key element of respondent’s
respective claims; and Finally, Rule 18(6) in that
the respondent did
not attach a true copy of the written agreement by virtue of which
respondent claims to have taken cession of
the relevant claims.
7.
The respondent chose not to respond to the notice under the
provisions of Rule 30(2)(b) and did not remove any of the alleged
causes of complaint. By the time that the respective applicants
filed
their respective Notices of Motion in the respective applications,
the objection under and in terms of Rule 18(4) had fallen
away
without any explanation and was not proceeded with.
8.
Thus, in the present applications, the applicants only proceeded
with
the irregular proceedings in terms of Rule 30 in respect of the
alleged failures in respect of Rule 18(1) and 18(6) as set
out above.
9.
At the hearing of this matter, Mr Jankowitz who appeared for
the
applicants in all four of the abovementioned matters sought to deal
with the applications as having been brought under and
in terms of
Rule 30A as opposed to Rule 30. This despite the fact that the Notice
of Motion in each of the respective cases was
brought under the
provisions of Rule 30.
10.
Mr Tsangarakis, who appeared for the respondent in each of the four
matters
dealt with objected to this proposal on the basis that the
respondent had been brought to court under the provisions of Rule 30
and had prepared for court on that basis. That the respondent in each
case would be unduly prejudiced if the applicant were to
be allowed
to deal with the matter as if it had been brought under the
provisions of Rule 30A as opposed to Rule 30.
11.
In my view Mr Tsangarakis is correct the four matters were launched
under Rule
30, and they shall proceed under the provisions of Rule
30. To do otherwise in these circumstances would prejudice the
respondent
as it had been brought to court under the provisions of
Rule 30 and had prepared accordingly.
12.
The applicants’ objections to the Particulars of Claim filed by
the respondents
in each matter fall under the provisions of Rule
18(1) and 18(6). The said rules read as follows:
“
18(1)
A combined summons, and every other pleading except a summons,
shall
be signed by both an advocate and an attorney or, in the case of an
attorney who, under section 4(2) of the Right of Appearance
in Courts
Act, 1995 (Act 62 of 1995), has the right of appearance in the
Supreme Court, only by such attorney or, if a party sues
or defends
personally, by that party.”
“
18(6)
A party who in his pleading relies upon a contract shall state
whether the contract is written or oral and when, where and by whom
it was concluded, and if the contract is written a true copy
thereof
or of the part relied on in the pleading shall be annexed to the
pleading.”
13.
Whilst dealing with the provisions of the rules, it is convenient to
also set
out the provision of Rule 18(12), which read as follows:
“
18(12)
If a party fails to comply with any of the provisions of this rule,
such
pleading shall be deemed to be an irregular step and the
opposite party shall be entitled to act in accordance with rule 30.”
14.
Turning now to deal with the objection under Rule 18(1). In setting
out their
complaint in this regard, the applicants set out in their
founding affidavit the following:
“
4.4
The respondent failed to comply with Rule 18(1) in that the summons
was purported to have been signed by the attorney
of the Respondent
in terms of Section 25(3) of Act 28 of 2014, whilst two names are
listed with two different signatures, on the
particulars of claim.”
15.
In dealing with this aspect, the respondent sets out in its answering
affidavit:
“
18
The signatures that appear on all of the combined summons’ are
my own (that of Mr Strydom the deponent
to the affidavit quoted
herein and the respondents’ attorney in these matters) as well
as that of the Landbank’s local
correspondent attorney of
record, Mr Johannes Oosthuizen.
19
Although it is not pleaded that the signatories to the combined
summons are attorneys with right of appearance
in the Court in truth
and in fact, and at the very least Mr Johannes Oosthuizen is such an
attorney.
20
In support of this allegation, I attach hereto as annexure ‘AA1.1’,
Mr Johan Oosthuizen’s
certificate as confirmation of the above.
I (Mr Strydom the deponent to the answering affidavit) also have the
right of appearance
as is evident from annexure ‘AA1.2’
hereto.”
16.
At the hearing of this matter, Mr Jankowitz who appeared for the
applicants
in these matters took a different tack to the approach
taken by the applicant in the replying affidavit. He indicated that
he was
not pursuing this aspect of the application with any great
seriousness.
17.
In my view,
Mr Jankowitz was wise in adopting this approach. As is set out by
Swain J in the matter of LIBERTY GROUP v SINGH
[2]
an attorney with right of appearance in the High Court has right of
appearance in every division of the High Court and may sign
pleadings
in the capacity as an advocate in any such division, but may only
fulfil his/her functions as an attorney, ie sign pleadings
as an
attorney, in the division in which he/she is admitted to practice as
such.
18.
The significance of this in the present proceedings is that Rule
18(1) requires
every pleading except for a summons in the high court
to be signed by both an attorney and an advocate. Mr Strydom, being
an attorney
with right of appearance from another division, has the
capacity to sign the Particulars of Claim in his capacity as an
advocate,
but is not entitled to sign the Particulars of Claim as an
attorney in this division. Mr Oosthuizen signed the particulars of
claim
in both places, ie as both an advocate and an attorney. Mr
Oosthuizen is an admitted attorney in this division with the right of
appearance. These facts were not disputed by the applicant. In these
circumstances there has been substantial compliance with the
requirements of Rule 18(1).
19.
Mr
Jankowitz did not argue that there was a need for a formal amendment
to indicate in which capacity both Mr Strydom and Mr Oosthuizen
signed the Particulars of Claim. The fact that the respective
practitioners did not explain the capacity in which the signed the
Particulars of Claim in these matters has been cured by their
explanation in the answering affidavit in the present matter. In
these circumstances, I intend to adopt the pragmatic approach set out
by my Brother Chwaro AJ in the matter of QUILL ASSOCIATES
(PTY) LTD v
DAWID KRUIPER LOCAL MUNICIPALITY
[3]
.
20.
In the circumstances, I rule that no formal amendment is required.
Rule 18(1)
has been complied with. The confusion in this matter could
have been obviated by way of a collegial letter and response thereto
between the respective representatives of the parties. I will take
into account that this aspect was only adequately explained
in the
answering affidavit when I come to consider the question of the costs
of the present applications.
21.
Turning now to the second aspect to be considered, namely the alleged
non-compliance
with Rule 18(6). The requirements of the rule have
already been set out above. The respondent in the various Particulars
of Claim
relevant to this application has pleaded that the principal
debtor obtained finance from a certain entity, who then entered into
a written contract of cession with the plaintiff/respondent to cede
such debt to the plaintiff/respondent.
22.
The
provisions of Rule 18(6) were considered by Swain J in the matter of
Moosa v Hassam
[4]
Where he
referred to the matter of South African Railways and Harbours v Deal
Enterprises (Pty) Ltd
[5]
, Swain
J notes that whilst the said South African Railways and Harbours
case
[6]
dealt with the position
before Rule 18(6) required true copies of written contracts or the
excerpts relied upon had to be furnished,
the reasoning of Botha J in
the S.A. Railways and Harbours case
[7]
was still relevant and instructive. The relevant passage in the S.A.
Railways and Harbours case reads as follows:
“
He is accordingly
obliged to furnish the particulars mentioned in Rule 18(6) whenever
the contract forms a part of the cause of
action put forward by him,
irrespective of whether the contract can be described as the ‘basis’
of the claim or not.”
[8]
23.
In the
Moosa case
[9]
, Swain J in
referring to the passage from S.A. Railways and Harbours set out
above, reasons:
“
[17] This I
consider to be the crux of the present enquiry. Rule 18(6) speaks of
a party who in his pleadings ‘relies’
on a contract or
‘part’ thereof. A party clearly ‘relies’ on a
contract when he uses it as a ‘link
in the chain of his cause
of action’. (references omitted)
…
[18] In the
present case the respondents base their cause of action against the
applicants upon the written agreements. The
written agreement is a
vital link in the chain of the respondents’ cause of action
against the applicants. In order for the
respondents’ cause of
action to be properly pleaded, it is necessary for the written
agreement relied upon to be annexed
to the particulars of claim. In
the absence of the written agreement the basis for the respondents’
cause of action does
not appear
ex
facie
the pleadings.”
[10]
24.
Relating this approach to the facts of the present matter, the
respondent, The
Land and Agricultural Development Bank of S. A.,
relies on a cession in respect of the original rights in respect of
the respective
claims. This is clearly ‘a link in the chain’
of its respective claims. As such the provisions of Rule 18(6) are
applicable
and the relevant contracts or at least the relevant
extracts need to be annexed to the Particulars of Claim in the
respective matters.
25.
The respondent in an annexure to the respective Particulars of Claim
has annexed
a document which is titled “RECORDAL”, in
which the respondent and certain other entities have recorded a
number of
contracts,
inter alia
the sale of the relevant book
debts and the cession of the relevant rights. In this document the
respondent and the other signatories
to such document record their
understanding of the effect of the listed contracts and agree that
the effect of the relevant contracts
is a cession of the relevant
book debts.
26.
Whilst this “RECORDAL” might constitute evidence of the
intention
of the relevant parties in entering into the relevant
contracts and in certain circumstances, it might even be
determinative of
the matter, it is still not the contract which the
respondent relies on as a ‘link in the chain’ of its
claim. In these
circumstances Rule 18(6) has not been complied with.
27.
In his oral address Mr Tsangarakis for the respondent referred me to
a number
of cases where it was alleged that a similar approach was
pleaded and the relevant courts in each case accepted the manner of
pleading.
All of the cases referred to by Mr Tsangarakis were motion
proceedings. The short answer to Mr Tsangarakis’ contention is
that different rules apply to actions as opposed to motion
proceedings. Respondent has brought an action in the matters relevant
to the present application and in these circumstances, Rule 18(6)
applies and has to be complied with.
28.
Should I reach this finding the respondent filed an application under
the provisions
of Rule 27(3) to condone their failings in this
regard. When the matter was argued before me, Mr Tsangarakis did not
pursue this
application for condonation. I believe Mr Tsangarakis was
correct in not doing so because the respondent had not set out ‘good
cause’ for this court to consider such an application for
condonation. In the absence of ‘good cause’, I cannot
consider or grant such condonation.
29.
This leaves the question of costs to be considered. Mr Tsangarakis
strongly
motivated that if I were to grant the applicants the relief
they sought, I should only award costs up to the stage of the filing
of the answering affidavit. Mr Tsangarakis argued that I should adopt
this approach because in the answering affidavit respondent
indicates
that the applicants have indeed had access to the relevant contracts
in an application to sequestrate the principal debtor.
This is not
disputed by the applicants in fact the deponent to the replying
affidavit clearly uses such knowledge of the relevant
contracts to
make certain submissions.
30.
At first, I was tempted to go along with Mr Tsangarakis’
approach, however
it occurred to me that a formal amendment would be
required to insert the relevant agreements into the Particulars of
Claim. If
the respondent wanted to avoid the risk of an adverse cost
order against it, it ought not to have continued in its opposition to
the present application, but effectively it ought to have removed the
cause of complaint by effecting the required amendment in
each case.
In other words, what Rule 18(6) requires is not that the other party
have knowledge and insight into the terms of the
relevant agreements,
but that written agreements or the relevant extracts must be annexed
to the relevant pleading.
31.
In relation to the Rule 18(1) objection, both parties at most gave
this aspect
cursory treatment. To treat this aspect separately would
not materially affect the outcome. The applicants have been
substantially
successful. There is no reason not to follow the
general rule that costs should follow the result.
In
the circumstances, the following order is made in all four of the
applications to which this judgment applies, THAT:
1)
The respondent is directed, within 10 (ten)
days of service of this
order, to comply with Rule 18(6) of the Uniform Rules of Court.
2)
In the event that respondent fails to comply
with Order 1 set out
above, the applicants may return to Court on the same papers, duly
supplemented if required, for further relief,
including an order to
strike out the Summons and Particulars of Claim of the Respondent.
3)
Respondent is to pay the costs of these applications.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
Representation:
Applicants:
Adv DC Jankowitz oio
Engelsman Magabane Inc.
Defendant:
Adv S Tsangarakis
oio PGMO Attorneys Inc.
Date
of Hearing: 14 May 2021
Date
of Judgment: 08 April 2022
[1]
The Legal Practice Act.
[2]
2012 (5) SA 526
(KZD) at 533 para [21]
[3]
Unreported judgment handed down in this division on the 20 November
2020.
[4]
2010 (2) SA 410
(KZP) at 413D.
[5]
1975 (3) SA 944
(WLD)
[6]
Above.
[7]
Above.
[8]
S. A. Railways and Harbours above at 953B.
[9]
Above.
[10]
Mossa case., above at 413C-F.