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[2021] ZAGPPHC 122
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Wenekem (Pty) Limited v Van den Berg N.O and Others (69514/19) [2021] ZAGPPHC 122 (26 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED: YES
26/2/2021
Case
Number: 69514/19
In
the matter between:
WENKEM
SA (PTY) LIMITED
Plaintiff
/ Excipient
And
COENRAAD
HENDRIK VAN DEN BERG N.O.
First
Defendant / Respondent
SANDRA
JULIANA VAN DEN BERG N.O.
Second
Defendant / Respondent
MICHELLE
BRITZ N.O.
Third
Defendant / Respondent
(In
their representative capacities as the trustees of
DIE
NONYANA TRUST
with Registration Number IT1210/2009.)
COENRAAD
HENDRIK VAN DEN BERG
(ID
number: [….])
Fourth
Defendant / Respondent
JUDGMENT
H
G A SNYMAN AJ
[1]
At the hearing of this matter this court upheld the exceptions of
the
plaintiff / excipient (“
the plaintiff
” or “
the
excipient
”) against the special plea, plea and counterclaim
of the defendants / respondents (“
the defendants
”
or “
the respondents
”) and granted the orders as
sought in the notice of exception dated 25 February 2020. Herewith
this court’s reasons.
[2]
The plaintiff issued summons against the defendants on 18 September
2019 for payment of the balance owing on an account for the purchase
of agricultural chemicals in 2018 and 2019.
[3]
The first, second and third respondents are the trustees of the
Nonyama Trust (“
the trust
”), being the purchaser
of the agricultural chemicals. The trust is therefore the principal
debtor. The plaintiff sued the
fourth respondent as surety for the
indebtedness of the trust.
[4]
The respondents filed a special plea, a plea on the merits, and a
counterclaim on 19 December 2019. The respondents’ special
plea is that this court does not have the necessary jurisdiction
to
hear the action. This is on the basis that the respondents accepted
the excipient’s offer at Viljoenskroon, i.e. in the
Free State
Province. The plea and counterclaim are founded on two documents
attached to the special plea, plea and the counterclaim.
[5]
The excipient filed an exception against the respondents’
special plea, plea and counterclaim on 25 February 2020 (“
the
exception
”). The respondents filed a notice to oppose the
exception on 6 March 2020.
[6]
The excipient’s
complaint is firstly that the special plea is bad since even if this
court lacks jurisdiction, which the excipient
does not concede, an
order for the dismissal of the claim would still not follow. This is
based on section 27(1)(a) of the Superior
Courts Act, Act 10 of 2013,
which provides that in such a case, removal of the action to the
correct division should be ordered
(not a dismissal). Secondly, the
excipient contends that the subject of the action had not been
concluded at Viljoenskroon on the
basis that this is where the trust
had accepted the plaintiff’s offer in writing as alleged by the
respondents. The exipient
contends that this contention is bad in
law.
[1]
A contract is generally concluded at the place where the
offeree’s acceptance of the offer is received by the offeror,
not where the offer is accepted, which was in this instance within
the area of jurisdiction of this court. Lastly the exipient
contends
that in terms of the “
Terme
en Voorwaardes
”
contained in annexure “
POC1
”
to the particulars of claim, which the defendants admit, the trust
had consented to the jurisdiction of this court.
[7]
The exceptions against the plea and counterclaim were based thereon
that the second document attached to the plea and counterclaim
contradicts what is pleaded in the plea and counterclaim, which
renders the plea and counterclaim vague and embarrassing.
[8]
Following the excipient’s exception being delivered on
25 February
2020, the excipient’s attorney requested the
respondents’ attorney on 6 March 2020 whether his clients
intends
to amend their special plea, plea and counterclaim, or
whether they intend to argue the exception.
[9]
On the same day, the respondents’ attorneys requested the
excipient’s attorneys to hold over exception to allow the
respondents to attend to the necessary amendment of their pleadings.
Also on the same day, the excipient’s attorney reverted that he
holds instructions to proceed to brief counsel to draft the
necessary
heads of argument for purposes of the exception, should the
respondents fail to deliver a notice of intention to amend
(enclosing
the necessary tender for payment of the excipient’s wasted
cost). The excipient’s attorneys requested a
response by no
later than 18 March 2020.
[10]
No notice of amendment was forthcoming and the excipient during
October 2020 instructed
its attorneys to brief senior counsel to
draft heads of argument and a practice note. The excipient’s
attorneys proceeded
with the enrolment of the exception.
[11]
The excipient proceeded on 3 November 2020 to deliver an index
to the exception
as well as its practice note, heads of argument and
table of chronology. Correspondence was also directed on this date to
the respondents’
attorney confirming that no formal response to
the exception has been forthcoming from the respondents, save for the
delivery of
their notice of intention to oppose. Copies of the index,
practice notes and heads of argument as prepared by excipient’s
senior counsel and served on the respondents’ correspondent
attorney in Pretoria, accompanied the email. It was stated that
the
excipient awaited the delivery of the respondents’ heads of
argument as prescribed by this court’s practice directives
and
that the excipient would proceed with the final enrolment of the
exception once the prescribed time period has lapsed.
[12]
By 15 December 2020, the respondents’ attorney forwarded
an email to the
excipient’s attorneys, accompanied by a notice
of their intention to amend and requesting whether the excipient will
accept
electronic service thereof.
[13]
The excipient’s attorney only responded by 23 January 2021
advising that
no electronic service agreement was in place between
the parties. In any event, it was stated that the respondents failed
to effect
the amendment of which notice was given on 15 December
2020 by failing to deliver the amended pages.
[14]
It was in this regard pointed out that the respondents’
attorney was invited
and added as a participant on CaseLines already
on 3 November 2020. The excipient’s attorney stated that
the respondents
should therefore have noted that the excipient was in
the process of enrolling the exception on this court’s opposed
motion
roll. It was stated that the excipient had to incur
substantial legal costs in pursuing the exception, which included the
costs
of senior counsel that prepared the excipient’s practice
note and heads of argument. It was stated that the excipient was
awaiting confirmation from the Registrar in respect of the date when
the exception would be heard; and that the attorneys held
instructions from the excipient to proceed with enrolment of the
exception, until such time as the respondents have taken the
appropriate steps to pursue the suggested amendments and have
tendered the excipient’s wasted costs.
[15]
On 27 January 2021 respondents’ attorney confirmed by
email that the respondents
will proceed to “
file
”
their amendment “
formally
”.
[16]
On 28 January 2021 the excipient’s attorneys received
confirmation from
the Registrar of this court that the exception had
been allocated for hearing on 22 February 2021. The excipient’s
attorneys
therefore proceeded to serve the necessary notice of set
down, which was uploaded on CaseLines.
[17]
On 29 January 2021, the respondents caused a notice of intention
to amend their
special plea, plea and counterclaim as envisaged in
terms of rule 28(1) of the Uniform Rules of Court to be served on the
excipient’s
attorneys (without the annexures thereto). It
appears from this notice of intention to amend that the respondents
intended to amend
their special plea, plea and counterclaim by
deleting their special plea in its entirety, and by removing and
deleting the two
annexures affixed to the plea and counterclaim by
replacing them with two new documents. It was stated in the notice of
intention
to amend that unless excipient delivers a written objection
to the proposed amendment within 10 days of delivery of the notice,
the respondents will effect the amendment. (This 10 days period would
have lapsed on 12 February 2021.)
[18]
Excipient’s attorney responded on 2 February 2021 stating
that the respondents’
proposed amendment was forwarded to
excipient’s counsel for his consideration and to advise the
excipient on whether it can,
or should proceed with the exception
enrolled for hearing on 22 February 2021. It was stated that
notwithstanding the delivery
of the excipient’s heads of
argument, practice note and all other documentation required for the
enrolment of the exception,
the respondents failed to deliver any
heads of argument or practice note. It was stated that the exception
was enrolled before
the delivery of the respondents’ proposed
amendment and the excipient has incurred substantial costs in this
regard. The
excipient’s attitude was that should the
respondents’ proposed amendment remedy the complaints raised in
the exception,
the excipient will proceed to brief junior counsel to
obtain the necessary costs order at the hearing of the exception. The
respondents
never respond to this correspondence.
[19]
On 8 February 2021 excipient’s attorney directed an email
to the respondents’
attorney confirming that the excipient does
not object to the proposed amendment. The respondents were requested
to confirm as
a matter of urgency whether they tendered the
excipient’s costs of the exception, which was enrolled for
hearing on 22 February
2021. The respondents were requested for
their urgent response as the excipient still had senior counsel on
brief to attend to
the hearing of the exception. Once again, no
response was forthcoming from the respondents in response to this
email. Moreover,
the respondents (again) failed to proceed to file
their amended pages and therefore to amend their special plea, plea
and counterclaim
by 12 February 2021 when these were due.
[20]
On 23 February 2021 the excipient’s attorney addressed an
email to the
respondents’ attorney in which it was confirmed
that the excipient’s attorneys have not received the courtesy
of a
response to any of its correspondences and/or a tender by the
respondents for payment of the excipient’s costs of the
exception.
It was stated that the excipient’s exception was
allocated for hearing before this court on 26 February 2021,
that the
excipient was obliged to retain senior counsel on brief to
attend to the exception on 26 February 2021, and that the
excipient’s
senior counsel was instructed to move for an order
that the respondents be ordered to pay the costs of the exception,
including
the costs of counsel’s appearance on 26 February
2021.
[21]
There was again no response to this email. Instead, during the
afternoon of 23 February
2021 a notice of withdrawal as
attorneys of record of the respondents was served on the excipient’s
attorneys.
[22]
The excipient’s attorney proceeded to depose to and upload on
CaseLines an
affidavit dated 25 February 2021 in which the
developments as set out in this judgment were confirmed under oath.
The affidavit
concluded with a request that the respondents be
orderred to pay the excipient’s costs of the exception, such
costs to include
the costs of senior counsel and his appearance on
26 February 2021.
[23]
By the time that this matter was called by 10:00 on 26 February
2021 before
this court, there was still no response from the
respondents or any appearance on their behalf.
[24]
At the hearing of this matter on 26 February 2021, Mr Maritz
SC on behalf
of the excipient submitted that the effect of the email
of 8 February 2021 referred to above, was to put the respondents to a
choice:
they were given the option to confirm whether they tendered
the excipient’s costs of the exception, which was enrolled for
hearing on the opposed motion roll of 22 February 2021. If so,
the excipient would have proceeded to brief junior counsel
to attend
to court on 22 February 2021 and to obtain an order that the
exception be removed from the roll and that the defendants
be ordered
to pay the plaintiff’s costs for the exception. If not,
Mr Maritz SC submitted, the position would have reverted
to the
default position, i.e. the exception was then still “
alive”
.
Since the latter is what transpired, Mr Maritz SC moved for
orders that the excipient’s exceptions be upheld.
[25]
I agree with Mr Maritz SC’s analysis and his
submissions in this
regard. It is clear that removal of the matter
from the roll is no longer on the cards and that this court is in
fact called upon
to rule on the exception.
[26]
As matters have developed, it is clear that the respondents,
correctly in my view,
conceded the excipient’s exceptions by
proceeding to file a notice of intention to amend, which address the
core of the exceptions
raised. It matters not, that they have not
actually proceeded since the affect the amendments
[27]
It is equally clear from what is set out herein that the excipient
throughout afforded
the respondents the opportunity to proceed to
amend their pleadings, which would have prevented the exception to be
enrolled and
for the excipient to retain the services of senior
counsel to appear before this court on 26 February 2021, which
resulted
in unnecessary costs.
[28]
Mr Maritz SC also submitted that since the respondents have (again)
failed to proceed
to file their amended pages, this court ought to
bring order to the matter by upholding the excipient’s
exceptions and ordering
the respondents to amend their plea and
counterclaim within the time periods as stipulated in the exception.
[29]
In my view, the excipient’s exceptions against the respondents’
special
plea, plea and counterclaim have merit and ought to be
upheld. This is in addition to the fact that this was in fact
conceded by
the respondents by them giving notice of their intention
to amend their special plea, plea and counterclaim as set out above.
[30]
I agree with Mr Maritz SC that the fact that the respondents
have again failed
to seek to amend their special plea, plea and
counterclaim, constitutes grounds for this court to intervene to
bring order to this
matter by upholding the exceptions and to put the
respondents on terms to effect the amendments in question.
[31]
Under the circumstances, Mr Maritz SC submitted that the
orders along the
wording of the prayers included in the notice of
exception be granted. There is in this court’s view no reason
for costs
not to follow the event, particularly in view of the
history of this matter as set out herein.
[32]
Under the circumstances the following orders are made.
ORDER
1.
The defendants’ special plea is dismissed with costs.
2.
The plaintiff’s exception against the defendants’
plea is
upheld with costs.
3.
The defendants’ plea is set aside.
4.
The defendants are afforded a period of 10 (ten) days to file
an
amended plea, failing which the defendants will
ipso facto
be
under bar to plead and judgment for the plaintiff with costs of the
action will be entered.
5.
The plaintiff’s exception against the defendants’
counterclaim is upheld with costs.
6.
The defendants’ counterclaim is set aside.
7.
The defendants are afforded a period of 10 (ten) days to file
an
amended counterclaim, if so advised, failing which the plaintiff will
ipso facto
be absolved from the instance with costs.
H
G A SNYMAN
Acting
Judge of the Gauteng High Court
Pretoria
Virtually
heard: 26 February 2021
Electronically
delivered: 26 February 2021
Appearances:
For
the plaintiff / excipient: JD Maritz SC
Instructed
by Savage Jooste & Adams Inc
For
the respondents: No appearance
Previously
Geyser Attorneys
c/o
Rooth & Wessels Attorneys – withdrew as attorneys of record
on 23 February 2021
[1]
See
Tel
Peda Investigation Bureau (Pty) Ltd v Van Zyl
1965 (4) SA 475
(E) at 479H
;
and
S v Henckert
1981 (3) SA 445
(A) at 451B
.