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[2022] ZANCHC 82
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TNC Mining (Pty) Limited v Mathome Training Development (Pty) Limited (424/2019) [2022] ZANCHC 82 (9 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No.: 424/2019
Date
Heard: 30 November 2022
Date
Delivered: 9 December 2022
In
the matter between:
TNC
MINING (PTY) LIMITED
Applicant
and
MATHOME
TRAINING DEVELOPMENT (PTY) LIMITED
Respondent
In
re:
MATHOME
TRAINING DEVELOPMENT (PTY) LIMITED
Plaintiff
and
FINSCH
DIAMOND MINE TRAINING CENTRE
First
Defendant
TNC
MINING (PTY)
LIMITED
Second
Defendant
JUDGMENT
WILLIAMS
J.
1.
This is an application for leave to
appeal to the Supreme Court of Appeal, alternatively the Full Court
against the whole of my
judgment and order of 25 February 2022
wherein I dismissed the special plea of prescription raised by the
second defendant
(applicant herein).
2.
The grounds of appeal can be summarised
as follows:
2.1.
That I had erred in finding that service
of the summons had been effected at the applicant’s chosen
domicilium citandi et executandi
;
2.2.
That I had erred in not finding that the
service of the summons was defective and in fact a nullity; and
2.3.
That the plaintiff (respondent herein)
failed to discharge the onus of proving that prescription had been
interrupted.
AD
GROUDS 2.1 AND 2.2 ABOVE
3.
In
paragraphs 7 to 9 of the main judgment, I dealt with the argument
relating to the alleged irregularity of the service of the
summons.
Mr Matthee who now appears for the applicant has referred me to
Concrete
2000 (Pty) Ltd v Lorenzo Builders CC t/a Creative Designs and
others
[1]
where it was found that the irregular service amounted to a nullity.
In that matter, the facts were found to be distinguishable
from those
in the
Scott
and Another v Ninza
[2]
and
Prism
Payment Technologies (Pty) Ltd v Altech Information Technologies
(Pty) Ltd (t/a Altech Card Solutions) and others
[3]
,
matters which I have also referred to in the main judgment. I
may state that the facts in
Concrete
2000
are
distinguishable from the matter
in
casu
as well.
4.
In the
Concrete
2000
matter the service of the
summons was found to have been effected on a fabricated
domicilium
citandi et executandi
and the
summons fortuitously came to the knowledge of the defendant some four
years after the purported service.
5.
In
casu
it would appear from the service level agreement entered into between
the respondent and the first defendant, that the first defendant,
at
least in part, contracted on behalf of the applicant.
References to the applicant can
inter
alia
be found in the clauses
mentioned in paras 2 and 3 of the main judgment. In addition clause
17 of the agreement states that:
The
signatories to the agreement warrant that they are duly authorised to
bind their respective sectors, Finsch Mine Training Centre
(first
defendant)
on behalf of
TNC Mining (Pty) Ltd
(applicant)
and
Mathome Training and Development (Pty) Ltd
(respondent)”
[own underlining and insertions in brackets].
6.
The concession made by Ms Carstens, who
appeared for the applicant when the special plea was argued, that the
first defendant appointed
a
domicilium
citandi et executandi
on behalf of
the applicant is therefore not completely unfounded. The applicant is
not a stranger to the agreement and did in fact
receive the summons a
few days after it was served. This is not a case of a fabricated
domicilium
as in the
Concrete 2000
matter which would cause the summons, in the normal course, never to
have come to the attention of the applicant.
7.
In
any event and as stated in paragraph 9 of the main judgment, had
there been a genuine issue with irregular service, the matter
should
have been dealt with in a Rule 30 application where the presiding
judge would have had the opportunity to consider whether
the
irregularity complained of was condonable or not (see
Federated
Insurance Co Ltd v Malawana
[4]
).
It was not proper, in my view, to sneak in the issue of irregularity
of service during argument on a special plea in which
plea such issue
had not been raised, thereby not even affording the respondent the
opportunity to deal with it in its replication.
8.
In my view, there are no merits in the
above grounds of appeal.
AD
GROUND OF APPEAL UNDER PARAGRAPH 2.3 ABOVE
9.
A return of service is regarded as
prima
facie
evidence of its content. The
respondent has attached the return of service to its replication. The
sheriff’s return of service,
after dealing with the service by
affixing it to the outer post box states the following:
“
Please
note that the same copy was served on the 27
th
February 2019 via registered post to PO Box 07, Lime Acres,
8410. OD Nnosang collected the parcel on the 06
th
March 2019 as informed by Post Office officials.”
This
issue is addressed in paragraphs 17 to 19 of the main judgment. There
is no merit in this ground of appeal.
10.
In the event I am of the view that an
appeal would have no reasonable prospects of success and the
application must therefore fail.
ORDER
The
application for leave to appeal is dismissed with costs.
CC
WILLIAMS
JUDGE
For
applicant / second defendant: Adv
JD Matthee
Instructed
by:
Higgs
Attorneys c/o
Engelsman
Magabane, Kimberley
For
respondent / plaintiff: Adv
WJ Coetzee SC
Instructed
by:
Raphela
Attorneys Inc
c/o
Mosikare Attorneys, Kimberley
[1]
[2014] 2 All SA 81 (KZD)
[2]
1999 (4) SA 820 (E)
[3]
2012 (5) SA 267 (GSJ)
[4]
1986 (1) 751 AD