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[2021] ZAGPPHC 487
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Metal Technics (Pty) Ltd v RNS Trucking CC and Another (21672/2014) [2021] ZAGPPHC 487 (21 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2) OF
INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
DATE
:
21 JULY 2021
CASE
NO: 21672/2014
In
the matter between:
METAL
TECHNICS (PTY) LTD
Plaintiff
and
RNS
TRUCKING CC
First
Defendant
HENDOR
TRANSPORT CC
Second
Defendant
J
U D G M E N T
This
matter has been heard virtually and otherwise disposed of in terms of
the Directives of the Judge President of this Division.
The
judgment and order are accordingly published and distributed
electronically.
DAVIS, J
[1]
Introduction and the parties
1.1
The plaintiff is a company which is contracted
by, inter alia, ABSA to upgrade ATM-Machines and thereafter to
deliver same.
1.2
The defendant is a family run close corporation,
operating as a transport company. The letters comprising its
name are the
initials of Mr Suliman, his son and the “S”
initial is shared by Mrs Suliman and their daughter. The
defendant
has been in operation for 21 years.
1.3
The third party has been joined by the defendant
in terms of Rule 13 in 2015. It is a freight forwarding and
transport close
corporation. It was on instruction from the
third party that the defendant had transported five upgraded ATM
machines in
respect of which the plaintiff bore the risk of loss or
damage.
[2]
Separation
By agreement between the parties, the issues as between
the plaintiff and the defendant and the defendant and the third party
were
separated and the matter proceeded only in respect of the
plaintiff’s claim.
[3]
The plaintiff’s claim
3.1
It is not in dispute that the plaintiff bore the
risk of five ATM machines which it had upgraded for ABSA and in
respect of which
it had provided safe cladding. The particulars
and serial numbers of the ATM machines are also common cause.
3.2
On 28 March 2013 and whilst the defendant was
conveying the ATM machines and at an intersection of the R103 and
R550 at Heidelberg,
Gauteng, a collision occurred between the vehicle
conveying the machines and a Toyota Quantum vehicle.
3.3
The driver of the Quantum has provided an
affidavit which has been accepted in terms of Rule 38, indicating
that, at the four-way
stop intersection in question, the defendant’s
truck, being driven at a high speed, entered the intersection without
stopping,
causing the collision.
3.4
Having regard to the expert notices filed, which
have been confirmed by way of an affidavit, also accepted in term of
Rule 38 and
as apparent from photographs and quotations, the ATM
machines were damaged way beyond economical repair.
3.5
Pursuant to the abovementioned damage, the
plaintiff had to pay ABSA the costs of the machines in an amount of R
1 095 033,50.
Both the costs and the payment were
also confirmed by the plaintiff and ABSA by way of separate
affidavits, also accepted in the
abovementioned manner.
3.6
The plaintiff is not claiming for its own loss
and damages relating to the upgrade of the machines and profit.
It merely seeks
to recover what it had been obliged to pay ABSA.
[4]
The defendant position
4.1
The defendant was not legally represented at the
trial and in fact not even at the most recent pre-trial conference
held on 6 July
2021.
4.2
At the said pre-trial conference, an erstwhile
member of the defendant, Mrs Suliman represented the defendant.
On all the
issues raised, she indicated that she would obtain legal
advice and revert within a week.
4.3
At the hearing, Mrs Suliman again appeared.
As indicated, she was no longer a member of the defendant and the
managing member,
Mr Suliman could not attend as he was engaged
slaughtering a sheep for the celebration of Eid-ul-Adha.
4.4
Mrs Suliman also indicated that the recent spate
of public unrest, violence and looting prevented her from obtaining
the legal advice
she had promised.
4.5
Counsel for the plaintiff pointed out that a
legal entity such as a company or close corporation may not conduct a
case in the High
Court except by appearance of a legal practitioner
with right of appearance. Reliance was placed in this regard on
Manong & Associates (Pty) Ltd v Minister
of Public Works and Another
2010 (2) SA 167
(SCA).
4.6
The learned judge of appeal however also in the
aforementioned case held that cases might arise where the
administration of justice
might require some relaxation of this
general rule. Even though there was no “properly
motivated, timeously lodged
formal application” as envisaged in
that judgment before me, I, in the exercise of my discretion and in
the interests of
justice, allowed Mrs Suliman to represent the
defendant and address the court.
4.7
Mrs Suliman impressed me as an astute
businesswoman. She acknowledged the contents of the plaintiff’s
affidavits referred
to above and conceded that the defendant did not
have any witnesses who would be able to controvert the contents of
the affidavits.
She stated that the defendant does not intend
calling any witnesses.
4.8
Instead, she referred to the facts pleaded in the
third party notice and questioned why the plaintiff had not, either
before or
after the institution of the action, chosen to persue or
have the defendant persue a claim against its insurer for the
R500 000,00
insurance cover in existence at the time. The
insurer had not taken over the defendant’s defence by way of
subrogation
but had initially paid half of the defendant’s
legal costs. Either the insurer or the defendant’s broker
has
since gone out of business and it appears that this option has
for many years not been persued and may no longer be available.
4.9
The issue of the defendant’s insurance is,
as far as the plaintiff is concerned, legally
res
inter alios acta
, that is to say, it is a
matter between the insurer and the insured. The plaintiff
cannot itself claim from the defendant’s
insurance company.
4.10
The defendant still has the option open to it to
persue its indemnity against the third party.
4.11
A tearful Mrs Suliman explained that the
defendant’s business has, due to the many economic hardships of
the past year, including
those imposed by the Covid-19 “lockdown”,
been brought to the brink of its existence. It has, for example
only
approximately R7 000 left in its bank account.
[5]
Conclusion
5.1
Counsel for the plaintiff expressed his sympathy
for the position of the defendant and its members as well as Mrs
Suliman.
He pointed out that, despite the grounds mentioned in
the third party notice, no offer of settlement had been made over the
course
of more than six years of litigation and that the plaintiff is
entitled to an order in its favour, having regard to the evidence
presented. On a moral, as opposed to a legal ground, the plaintiff
might engage with the defendant regarding payment or execution
after
judgment, but this is as far as counsel, being constrained by his
instructions, could submit.
5.2
Whilst the court equally has sympathy for the
plight of the defendant, I am duty bound to apply the law to the
facts before the
court. Doing so, I find that the plaintiff is
entitled to the order it seeks, for which it has furnished the court
with a
draft order.
[6]
Order
6.1
The defendant shall pay
an amount of R1 095 033.50 (one million and ninety-five
thousand and thirty-three rand and fifty
cents) to the plaintiff’s
attorneys, Savage Jooste & Adams Inc, in settlement of the
plaintiff’s claim against
the Defendant, by direct transfer
into their trust account with the following details:
NAME:
SAVAGE JOOSTE & ADAMS INC
BANK:
STANDARD BANK
ACCOUNT NUMBER: [….]
ACCOUNT TYPE:
ATTORNEYS TRUST ACCOUNT
BRANCH:
PRETORIA
BRANCH CODE:
010045
REFERENCE:
WS1809/3333363
6.2
Interest on the
aforesaid amount at the prescribed rate from time to time per annum a
tempore morae from date of summons until date
of payment;
6.3
Payment of the
plaintiff’s taxed or agreed party and party costs, which costs
shall include the following:
6.3.1
The fees of senior –
junior counsel on the High Court scale;
6.3.2
The reasonable taxable
costs of obtaining expert reports from the plaintiff’s expert
(including addendums thereto), which
were furnished to the defendant,
namely the report of Mr Jason Felix
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 21 July 2021
Judgment
delivered: 21 July 2021
APPEARANCES:
For
the Plaintiff:
Adv. S G Maritz
Attorney
for Plaintiff:
Savage Jooste & Adams Inc,
Pretoria
For the 1
st
Defendant:
Mrs Suliman (in person)