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[2021] ZAGPJHC 854
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Istmak Empire (Pty) Ltd v Rapalalane t/a Wanga's Projects (20/33234) [2021] ZAGPJHC 854 (28 July 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNEBSURG
Case number: 20/33234
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
28 JULY 2021
In the matter between:
ISTMAK
EMPIRE (PTY)
LTD
Plaintiff
/Respondent
and
J
EANETTE
RAPALALANE T/A WANGA’S PROJECTS
Defendant/Excipient
JUDGMENT
SLON AJ
1.
The excipient
(defendant) in this matter excepted to the respondent’s
(plaintiff’s) particulars of claim on the basis
that the latter
is vague and embarrassing,
alternatively
,
does not disclose a cause of action and is bad in law. The former
grounds are not relied upon in the excipient/defendant’s
heads
of argument. For the sake of convenience, I shall refer to the
parties as they are cited in the action.
2.
The plaintiff’s
cause of action is one based on an acknowledgement of debt (‘the
AoD’) dated 3 August 2020. The
plaintiff pleads that the AoD
was concluded by virtue of an indebtedness in an amount of some R2.3
million owed to it by the defendant,
and flowing from alleged
breaches by the defendant of certain provisions of a joint venture
agreement concluded between the parties,
about a year earlier, on 23
September 2019.
3.
The parties have agreed
that this matter be determined on the papers, without the need of an
oral hearing. Heads of argument were
filed by Mr Zwane for the
defendant and by Mr de Villiers for the plaintiff.
4.
The defendant has
implicitly assumed, and has based its contentions on the assumption,
that the joint venture with which this action
is concerned is the
same creature, at law, as a partnership. There seems little doubt of
this, but I need not decide that point
specifically, and make the
same assumption – since that it is the basis on which the
exception is brought.
5.
Mr Zwane submits that,
as a matter of law, one partner may not sue another during the
subsistence of a partnership; and, since the
plaintiff fails to
allege that the joint venture created by the agreement of 23
September 2019 has been terminated, the plaintiff’s
particulars
of claim fail to disclose a cause of action.
6.
Mr de Villiers
contends, on the other hand, that the AoD has nothing at law to do
with the joint venture in the sense that it is
a separate and
self-contained agreement, enforceable by the plaintiff against the
defendant regardless thereof.
7.
Mr Zwane relies for his
contention on
Shingadia
Brothers v Shingadia
1957
(3) SA 195
(SR). The headnote of that matter, which will suffice for
present purposes, reads:
‘
In
the case of a lease by a partnership to one of the partners, the
partners cannot in the name of the partnership sue such individual
partner for a breach of the lease, e.g. an action for arrear rent.’
8.
At 197H of the report,
Morton J quoted with approval a passage from
Meyer
& Co v Faber (No 2)
1923
(2) Ch 421
in which Warrington LJ stated (at 439):
‘
A
partner cannot be a creditor of or a debtor to his firm or sue his
firm or be sued by it, inasmuch as the English law does not
recognize
the existence of a firm as distinct from the members of it; and
further in any action by one or more partners, whether
using the name
of the firm … or not, against a co-partner alleging that money
is due from the defendant to the plaintiffs
in connection with the
affairs of the firm, whether the claim arises in respect of
transactions during the continuance of the partnership,
or in the
course of the winding-up of its affairs after dissolution, the only
relief which the plaintiff could obtain would be
an account of the
dealings and transactions of the partners.'
9.
The obstacle with which
the
Shingadia
Brothers
’
case
was concerned arises in circumstances where a partnership purports to
sue one of its own partners. It is precluded from doing
so since a
partnership is not a legal entity separate from its partners, as a
company is separate from its members, and the law
does not permit a
person to sue himself or herself, with or without other parties who
may be joined to the suit. Mr Zwane’s
point in this regard is
that, by the same logic, a partner is not entitled to sue the
partnership of which he or she is a partner.
10.
In this action,
however, the claim is pursued by one member of a joint venture in its
own name against the other, the latter also
being cited in her own
name. There is nothing in the AoD as read with the joint venture
agreement to suggest that it was the joint
venture which was intended
to be either debtor or creditor. This is not, therefore, an action by
or against the joint venture itself.
According to the joint venture
agreement, incidentally, the joint venture was to be housed by a
company to be registered by the
name of ‘WangaMak Properties’,
which appears to be a portmanteau of the names of the plaintiff
(‘Istmak’)
and the defendant’s trading name
(‘Wanga’s Projects’).
11.
Whether or not such
company was ever formed or, if it was, whether or not the business of
the joint venture was ultimately housed
in it, is not disclosed on
the pleadings, and would not in any event, in the view I take of the
matter, have made any difference,
since this action is based, as I
have said, on an alleged liability between the members of the joint
venture
inter se
.
The principle enunciated in the
Shingadia
Brothers
’
case
is plainly not applicable.
12.
The action, it seems to
me, is of a type conforming to the
actio
pro socio
. It was
held by Joubert JA in
Robson
v Theron
1978
(1) SA 841
(A) at 855H-856A that one of the principles of the common
law underlying the
actio
pro socio
is that
an action –
‘
may
be instituted by a partner against a co-partner during the existence
of the partnership for specific performance in terms of
the
partnership agreement and/or fulfilment of personal obligations
(
praestationes
personales
) arising
out of the partnership agreement and business.’
13.
The AoD undoubtedly
arises, broadly speaking, out of the joint venture ‘agreement
and business’. It seems to me to be
an ancillary instrument in
the form of a liquid document by means of which certain financial
obligations of the defendant, allegedly
based on the joint venture
agreement (or upon alleged breached thereof), were sought to be
concretized and codified by the parties,
and which the plaintiff may
now seek to enforce independently of its genesis.
14.
That being so, the
plaintiff is entitled to sue on it regardless of the continued
subsistence, or not, of the joint venture agreement.
15.
The exception is
accordingly dismissed with costs.
________________________________
B M SLON
Acting Judge of the High
Court
Gauteng Local Division,
Johannesburg
This
judgment was prepared and authored by Acting Judge Slon. It is handed
down electronically by circulation to the parties or
their legal
representatives by email and by uploading it to the electronic file
of this matter on Caselines.
HEARD
ON:
By agreement, matter decided without a hearing
DECIDED
ON:
28 July 2021
For
the Plaintiff:
C de Villiers
Instructed by Delport van den Berg
Attorneys
For
the Defendant:
N Zwane
Instructed by Dube Lesley Attorneys