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[2021] ZANCHC 70
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Karob Boerdery (Pty) Ltd and Another v Griekwaland Wes Korporatief BPK (34/2020) [2021] ZANCHC 70 (25 October 2021)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION,
KIMBERLEY)
CASE NO:
34/2020
DATE HEARD:
03 SEPTEMBER
2021
DATE OF ORDER:
25 OCTOBER 2021
In the matter between:
KAROB
BOERDERY (PTY)
LTD
First
Applicant
CHARL DANIEL
WILKE
Second
Applicant
And
GRIEKWALAND
WES KORPORATIEF BPK
Respondent
REASONS/JUDGMENT
PER
NXUMALO
J:
PRELIMINARY REMARKS
[1]
It has been well said
that for the laws to be respected, decisions of courts must be given
as soon as possible after the events giving
rise to disputes, and
must follow from sound reasoning, based on the best available
evidence.
[1]
Litigants are thus
entitled to reasons for judicial decisions within a reasonable time
following upon hearings and when a judgment
is appealed, written
reasons are indispensable. Failure to supply reasons is a grave lapse
of duty and a breach of litigants' rights
and an impediment to the
appeal process.
[2]
It is also inimical
to the parties' fundamental right to access to courts entrenched in
our Bill of Rights.
[3]
Jurisdiction
[2]
This application was
heard virtually on 3
rd
September 2021.
Judgment was thereafter reserved, pending the parties' delivering
supplementary heads of argument on or before 15
th
September 2021, with
regard to the following issues: (a) Whether, regard being had to
facts and circumstances of this case, this Court
has jurisdiction
over the dispute; and (b) whether the dispute between the parties
would not be more conveniently determined by the
Free State Division.
[3]
Even though none of
the parties raised any issue with regard to this Court's
jurisdiction, this Court
mero
motu
raised
the issue and directed the parties to supplement their heads of
argument in this regard. It is so that unless submission to
jurisdiction is possible, a court is obliged to raise lack of
jurisdiction
mero
motu,
even
on appeal-
CWU
v Telkom
1999 (2) SA 586
(T).
[4]
The issue of
jurisdiction became germane in light of the fact that litigation that
preceded this application, commenced in the Free
State Division,
vide
provisional
sentence summons being issued by the respondent against the
applicants.
The impugned Order
[5]
Having found that
this Court indeed has jurisdiction over the matter, on 25
th
October 2021; it
ordered as follows: (1) The respondent is ordered to repay R3 million
to the applicants, plus interest on same, calculated
at 10. 25%
per
annum a tempore morae,
from
14
th
September 2010, until
date of payment; (2) The respondent is also ordered to repay to the
applicants the amount of R435 690.77, at
10.25%
per
annum a tempore morae,
from
21
st
April 2011; and (3)
The respondent is ordered to pay the costs of these proceedings on a
scale between attorney and client.
[6]
The 14
th
September 2010, is
the date on which the applicants paid the former amount. The 2ist
April 2011, is the date on which the latter amount
was paid to the
respondent.
Request for reasons
[7]
The respondent
delivered a notice requesting reasons for the impugned order on 12
th
November 2021, with
the registrar of this Court. This notwithstanding, the said notice
was only brought to this Court's attention
on or about 26
th
January 2022, more
than two months after this Court granted the said order. The question
that arose then was whether the said notice
was delivered to this
Court within the timeframe contemplated in the rules.
[8]
Rule 49 (1) (c) of
the Uniform Rules of Court, expressly stipulates that when in giving
an order, the court declares that the reasons
for the order will be
furnished to any of the parties on application, such application
shall be delivered within ten (10) days after
the date of the order.
At that time, since there was no definitive evidence that the said
notice was properly filed with the registrar,
this Court was
constrained to decline the said request
vide
its ruling
dated 26
th
January 2022, for
being out of time.
[9]
Thereafter evidence
was produced, showing that indeed the request for reasons notice was
filed in Court on 12
th
November 2021.
Contemporaneous with the said notice, the respondent also delivered a
notice of application for leave to appeal, which
was also regrettably
only brought to this Court's attention on 26
th
January 2022. It is
against this backdrop that these reasons are handed down so
belatedly.
BRIEF STATEMENT OF THE
RELEVANT FACTS
[10]
The applicants in
these proceedings sought an order directing the respondent to repay
amounts of R3 million and R435 690.77; interest
on the said amounts
and costs of proceedings on a scale between attorney and client. The
applicants prayed for interest on the said
amounts at a rate of 10,
25% per year
a
tempore morae,
the
former from 14
th
September
2010 and the latter from 21
st
April 2011, until the
date of final payment; respectively.
[11]
It is common cause
that the said amounts were paid to the respondent in terms of a
provisional sentence order and judgment of the
Free State High Court
granted against the applicants on 19
th
November
2009.
[12]
The subject matter of
this application thus pertains to a demand for repayment of the said
monies paid by or on behalf of the applicants
to the respondent in
terms of rule 8 (10), after provisional sentence was partially grated
against the applicants, in favour of the
respondent, in the said
court.
[4]
[13]
Apparently after a
raft of principal credit agreements entered into between the
respondent and the applicants and other entities,
jointly and/or
severally preceding 26 January 2006, the first applicant executed an
acknowledgment of debt in favour of the respondent
on the said date,
in terms of which the first applicant undertook to make certain
payments to the respondent. The second applicant,
for his own part,
bound himself as surety and co-principal debtor with the first
applicant for the due and punctual performance of
the first
applicant's obligations towards the respondent, pursuant to the said
raft principal agreements and acknowledgment of debt.
[14]
It is common
cause that the underlying
causa
of the
acknowledgement of debt agreement was monies allegedly owed to the
respondent by the first applicant for goods sold and delivered
and
additional financing costs as set out in annexure A of the said
agreement. In terms of the said agreement, the first applicant
acknowledged that it was indebted to the respondent in the amount of
R12 787 871.82; of which an amount of R4 831 871.05; was already
in
arrears.
[15]
According to the
applicants, the first applicant gave full effect to the said
agreement and fully paid the determined arrear amount
indicated. The
foregoing notwithstanding, the respondent maintained that the first
applicant failed to adhere to its payment obligations
towards the
respondent.
[16]
It is against this
backdrop that the parties subsequently got embroiled in a major
dispute with regard to the terms and conditions
of the main agreement
and the acknowledgement of debt agreement and/or the alleged breaches
thereof. Following directly from this
dispute, the respondent sued
the applicants jointly and severally, by means of provisional
sentence summons on 11
th
September 2009; based
on the whole amount stipulated in the acknowledgement of debt
agreement. The summons was issued from the Free
State Division of the
High Court.
[17]
The matter
subsequently served before the said Court on 19
th
November 2009, which
granted a provisional sentence order
per
Van der
Merwe J, in favour of the respondent in the amounts of R3 million and
R435 690.77; respectively. The said amounts being considerably
less
than the full amount that was claimed as per the acknowledgement of
debt agreement.
[18]
In compliance with
the said order, one Wilke Trust effected two separate payments to the
respondent on 14
th
September 2010 and
2ist April 2021; respectively. Whilst it is common cause that the
respondent received these amounts, queerly no
security
de
restituendo,
to
the satisfaction of the registrar, against payment of the said
amounts was demanded by or on behalf of the applicants. Nor was
same
furnished to the applicants. According to the applicants, they saw no
need to do so since the respondent was to the very best
of their
knowledge financially sound as well as listed on the Johannesburg
Stock Exchange.
[5]
[19]
It is so that the
provisions of rule 8 (10) are peremptory,
[6]
and that payment or
satisfaction of the provisional judgment cannot take place in a
manner other than payment to the plaintiff under
security
de
restituendo
or
upon levy of execution of a writ issued by the registrar.
[7]
In the latter event,
payment to the sheriff would therefore be the satisfaction of the
provisional judgment.
[8]
[20]
It is against this
backdrop that in
Re
Right and Sherman and in Re O'Hea v Sherman and Right
(1898)
19 NLR 166
, it was decried that the practice of not taking a bond
de
restituendo
in
provisional judgments was wrong. This notwithstanding, in
Standard
Bank of South Africa v Pechey Bros
(1902)
23 NLR 216
, the court later enjoined that:
"The bond should be taken
before levy is made,
unless the defendant should waive his right
to security' being given."
[21]
It can be deduced
from the foregoing that a defendant may waive the right to security,
as the applicants did in this case.
[9]
Whilst a defendant
may do so, reported cases of such instances are rare and far between.
Also, no provision seems to have been made
in the rules for the
repayment of the amount of the judgment for provisional sentence,
where such a defendant has entered into the
principal case and
successfully obtained a dismissal of the claim and reversal of the
provisional sentence,
sans
security
from the plaintiff. The present situation is thus infrequent and
unlikely to be one that is much encountered in practice.
[22]
On 13
th
August 2014, the
respondent's entire claim was dismissed with costs by the Free State
Division of the High Court. Thereafter, leave
was granted the
respondent to appeal to the Full Court of that Division, which in
turn dismissed the appeal in its entirety with
costs on 8
th
September 2016. The
respondent then petitioned the Supreme Court of Appeal, which
petition was finally dismissed with costs as well
on 10
th
January 2017.
Thereafter, the applicant did not pursue the matter any further.
[23]
The applicants
thereafter repeatedly demanded the monies that were provisionally
paid to the respondent in terms of the provisional
sentence order of
the court
a
quo
dated
19th November 2009, to no avail. The respondent apparently took the
stance that the dispute between the parties has not become
finally
resolved. In the premise, the respondent maintained that it is
entitled to hold on to the impugned payments. This after the
respondent was unsuccessful in the main proceedings in the Free State
High Court and the Supreme Court of Appeal.
[24]
It is against this
backdrop that this application was lodged on 10th January 2020, for
repayment of both the capital amount paid to
the respondent in
compliance with the said provisional sentence order, interest
thereon; together with
mora
interest.
[25]
This application in
the main thus turns around the respondent's refusal to refund the
applicants certain monies paid by the latter
in satisfaction of the
amount of the provisional sentence judgment and taxed costs, handed
down by the Free State High Court Division,
on 11
th
September 2009.
THE PARTIES' MAIN ARGUMENTS-
IN SUMMARY
The applicants'
[26]
According to the
applicants, the provisional sentence which was claimed and partially
granted is the only basis which entitled the
respondent to the
interim payment of the impugned amounts. To the extent that that
claim has now fallen away, there is no legal basis
upon which the
respondent can hold on to what has been previously only provisionally
ordered by the Free State High Court on 11
th
September 2009.
[27]
They also contended
that notwithstanding the respondent's failure to secure payment of
over R12 million against them, it is still
refusing to repay the
impugned amounts. They further contended that this is a simple
repayment of monies which they were ordered
to pay in terms of the
said provisional sentence order because the respondent was
unsuccessful in the main proceedings. This failure,
according to the
applicants, necessarily meant that the respondent was now obliged to
repay both the capital amount ordered by the
provisional sentence
order, together with
mora
interest.
[28]
As far as costs are
concerned, it was contended for the applicants as follows: That there
was really no reason why they should be
forced to even bear the most
elementary part of their legal costs because the respondent's refusal
to repay the said monies was so
baseless that it warrants a punitive
legal cost order.
The respondent's
[29]
The respondent, for
its own part, opposed the relief sought based on four points
in
limine
and
"a
number of imbricated reasons."
The
points
in
limine
pertain
to the following contentions; that: (a) judgment in respect of this
application should have been postponed and same stayed,
pending the
adjudication of the respondent's intended counterclaim; (b) the
applicants' lack of
locus
standi in Judicio;
(c)
the impugned amounts have prescribed; and (d) the founding affidavit
did not make out a
prima
facie
case
for the relief sought.
[30]
Substantively, it was
argued for the respondent that to the extent that the applicants do
not rely on any cause of action premised
on contract, delict or
statute. They were obliged to resort to a cause of action based on
unjust enrichment and accordingly duty
bound to bring same within the
ambit thereof.
[10]
It further argued
that, to the extent that at the time the impugned payments were made,
the applicants were still indebted to the
respondent for certain
outstanding amounts, the said payments amounted to part-payment of
the latter or set-off.
[31]
It was also argued
for the respondent that to the extent that no allocation was made by
the trust as against which particular portion
of the outstanding
indebtedness, the said payment should apply, the respondent was
entitled to allocate same to the oldest outstanding
debt first.
[32]
It was further argued
for the respondent that since in terms of the accelerated clause
contained in the acknowledgement of debt agreement,
the applicants
are still indebted to it, the respondent still intends to pursue same
imminently by action. The respondent contended
that should the said
action succeed, the applicants' claim, if any, will be wholly or
partly extinguished. In the circumstances,
judgment in respect of
this application should be postponed and this application stayed,
pending the adjudication and determination
of its foreshowed claim in
reconvention. That such an order is permissible under rule 22 (4), in
the exercise of this Court's judicial
discretion.
ISSUES FOR DETERMINATION
[33]
The following issues
therefore fell for determination in these proceedings:
a.
Whether judgment in
respect of this application should be postponed and same stayed,
pending the adjudication of the respondent's
intended counterclaim.
b.
Whether the applicant
lacks
locus
standi in judicio;
c.
Whether the impugned
payments amount to a judgment debt within the contemplation of
section 11 (a) (ii) of the Prescription Act 68
of 1969 (the Act) or
have prescribed;
d.
Whether the
applicants made out a
prima
facie
case
for the relief sought;
e.
Whether the impugned
payments amounted to part-payment or set-off of alleged outstanding
indebtedness of the applicants to the respondent;
and
f.
Whether the impugned
payments were validly appropriated.
[34]
This Court then
determined each of these issues in turn, thus.
Whether judgment in respect of
this application should be postponed and same stayed, pending the
adjudication of the respondent's
intended counterclaim.
[35]
As alluded above, the
respondent in this regard
inter-alia
averred as
follows. That to the extent that the applicants and the trust remain
jointly and severally indebted to it in a conservative
amount of at
least R4 530 536.05, payment of which it intends to pursue in terms
of an intended "imminent" action. Since
the said amount
substantially exceeds the applicants' current claim, the latter will
be wholly or partly extinguished.
[36]
In the circumstances,
the respondent contended as follows. That judgment in respect of this
application be postponed and this application
stayed, pending the
adjudication and determination of its claim in reconvention. That
such an order is permissible in terms of rule
22 (4), in the exercise
of this Court's discretion.
[37]
Rule 22 (4),
expressly and unambiguously stipulates as follows; that:
"If
by reason of anyâ¢claim in reconvention
,
the defendant claims that on the giving of judgment on such claim,
the plaintiff's claim will be extinguished either in whole or
in
part, the defendant may in his plea refer to the fact of such claim
in reconvention and request that judgment in respect of the
claim or
any portion thereof which would be extinguished by such claim in
reconvention, be postponed until judgment on the claim
in
reconvention. Judgment on the claim shall, either in whole or in
part, thereupon be so postponed unless the court, upon the
application
of any person interested, otherwise orders, but the
court, (f no other defence has been raised, may give judgment for
such part of
the claim as would not be extinguished, as if the
defendant were in default of filing a plea in respect thereof or may,
on the application
of either party, make such order as to it seems
meet."
[11]
[38]
It is evident from
the provisions of rule 22 (4) that the
pari
passu
determination
of a claim in convention and a counterclaim cannot be claimed as of
right. It is also evident from the foregoing that
this Court's rule
22 (4) discretion expressly and unambiguously only avails a
defendant, who has filed a claim in reconvention ('counterclaim')
and
not one who only intends or threatens to do so.
[39]
Whilst the court has
a discretion whether or not to postpone the claim in convention so
that both the claim and the counterclaim are
heard simultaneously. In
these proceedings, the respondent has not filed any claim in
reconvention against the applicants. This court's
discretion can
therefore not be exercised in favour of the respondent in the absence
of a substantive counterclaim before it.
[40] In
the premise, this Court could not find any basis for judgment in
respect of this application to be
postponed or for this application
to be postponed or stayed.
Whether the applicant lacks
locus standi in judicio
[41]
On this point, the
respondent contended as follows. That to the extent that the
applicants are not impoverished as a consequence of
any unjust
enrichment of the respondent at the applicants' expense. The
applicants do not have any
locus
standi
to
apply for the relief sought in terms of this application and the
application should for this reason alone be dismissed with costs.
It
should be so, since if a person who intends to enforce an enrichment
claim against another has not been impoverished as a consequence
of
the unjust enrichment of another at the expense of the former, the
intended claimant will not have a right of recourse and consequently
no
locus
standi
to
pursue such a claim.
[42]
The basis of this
point
in
limine,
was
therefore that to the extent that it is not the applicants, but one
Wilke Boerdery Trust, which paid the provisional sentence
order
amounts, it is the latter that is out of pocket and not the
applicants. To the extent that the applicants do not place reliance
on contract, delict or statute in order to sustain an entitlement to
the relief sought. They cannot contend for any contractual,
delictual
or statutory right and commensurately no corresponding
locus
standi
to
pursue any re payment of the amounts based on contract, delict
or statute. In the circumstances, according to the respondent,
the
applicants do not have the necessary
locus
standi
to
pursue repayment of same.
[43]
The applicants, for
their own part, contended that it matters not who had paid the
impugned amounts or if the applicants had paid
the amount themselves.
According to the applicants, in the absence of, for instance, a
cession to a third party, the present applicants
before court would
always be the holders of the right to reclaim these payments. If the
applicants have to refund a benefactor or
a third party, who had
stood in for the payment obligation, that has got nothing to do with
the respondent as it cannot resist an
order on the basis of the
applicants not having made the payment themselves. In any event, the
respondent never denied the authority
of the trust to pay the
provisional sentence amount on behalf of the applicant when same was
done.
[44]
It was also contended
for the applicants that when the respondent instituted action against
the applicants, the applicants and not
the trust were the
respondent's primary debtors. The trust, was only a surety jointly
with the second applicant for the said debt.
Since the respondent at
all material times hereto never sued the trust in any capacity, the
latter was never a party to the provisional
sentence proceedings. The
order to make provisional payment of the impugned amounts was made
against the applicants and not the trust.
It was the applicants and
not the trust which was able to enter the principal action after
payment of the said provisional sentence
amounts.
[45]
As alluded elsewhere,
the provisions of rule 8 (10) are peremptory.
[12]
The only persons
against whom provisional sentence had been granted were the
applicants whom in turn acquired the concomitant
locus
standi in judicio
to
enter into the principal case. They however could only do so after
satisfying the amount of the judgment of the provisional sentence
and
taxed costs; or if the plaintiff, on demand, had failed to furnish
due security in terms of rule 8 (9) of the Uniform Rules.
[13]
It is common cause
that the applicants were only permitted to enter the principal case
after payment of the impugned amounts.
[46]
It is so regardless,
who may have satisfied the amount in question on their behalf. They
were at liberty to effect the said payments
either directly or
through an agent. It is so simply because in our law, an agent may be
appointed to do anything which the principal
may do, unless
performance by the principal himself is required.
[14]
Rule 8 (10), nowhere
requires a defendant therein to personally satisfy the amount of the
judgment of the provisional sentence or
taxed costs. All it requires
is that a defendant shall have satisfied same by the time he enters
the principal case and nothing more.
[15]
[47]
An agent who has the
power to enter into a contract for and on behalf of his principal is
not a party to the contract, by which exercise
of his power, he makes
between his principal and a third party.
[16]
An agent thus has no
locus
standi
to
sue or be sued on the principal obligation between the principal and
the other party
Springfield
v Peter Maskell Auction
[2006] 4 All SA 483
(N).
[48]
It has been said that
even a thief who pays own or another's debts with stolen funds
extinguishes those debts, provided the creditor
who receives and
accepts payment is innocent. Payment by electronic means is also
effective if the payee acquires the unfettered
or unrestricted right
to the immediate use of the funds in question. Also if payment is
made into a bank account, acceptance is evidenced
by the
corresponding credit and its non reversal-
Absa
Bank Ltd v Moore and Another
2017
(1) SA 255
(CC) paras 32-36.
[49]
It is common cause
that electronic payment of the impugned amounts was made into the
bank account of the respondent. Acceptance thereof
is evidenced by
the corresponding credit and its non-reversal. The respondent also
acquired unfettered or unrestricted right to the
immediate use of the
funds in question.
[50]
It is so in our law
that a third party's election to sue a disclosed principal or agent
is final-
see
SA Metal
&
Machinery v
Klerk
[2005] 1 All SA 44
(E).
Authority
may be evinced by proof of an express authorisation or by
inference.
[17]
Actual authority may
also either be in express terms or be implied or tacit.
[18]
It therefore appears
that the trust was ostensibly acting on behalf of the applicants when
it effected payment of the provisional
sentence amounts to enable the
applicants to enter the principal case.
[51]
The presence of
ostensible authority of the trust to have made the said payment on
behalf of the applicants can be deduced from the
fact that after same
was made, the applicants became entitled to enter the principal case.
In our law, the presence of ostensible
authority is established if it
is shown that a principal created an appearance that the agent had
the power to act on the principal's
behalf, nothing more is required-
Makate v
Vodacom
2016 (4) SA 121
(CC) at paras 46-47.
[52]
It follows from the
foregoing that the applicants could thus, through the agency of the
trust or anyone else, satisfy the amount of
the judgment of the
provisional sentence or taxed costs. Conterminously, the trust by
making the said payment
qua
agent, for
and on behalf of the applicants as its principals did not become a
party to the contract or proceedings, by which exercise
of its powers
as an agent, it concluded between the applicants and the
respondent.
[19]
Nothing therefore
seemed to turn around the fact that the applicants, for their own
convenience or otherwise and without intending
to create a right of
action on behalf the trust, agreed that the latter should pay the
impugned amounts on their behalf.
[20]
[53]
In the premise, this
Court came to the conclusion that regard being had to the facts and
circumstances of this case and the ambit
of the implicated rule, it
can be surmised that the trust was either expressly or tacitly
authorised by the applicants to effect
the said payments on their
behalf. It followed that this point
in
limine
must
fail.
Whether the
impugned payments amounted to a judgment debt within the
contemplation of section 11 (a) (ii) of the Act:
[21]
alternatively
prescribed on the alternative dates suggested
[54]
According to the
applicants, the respondent's prescription argument that the
provisional sentence payments are an ordinary
"debt"
flowing
from an ordinary
vinculum
juris
between
the parties and thus the three-year prescription period contemplated
in section 11 of the Act applies, is fundamentally flawed.
[55]
The applicants
contended that the legal obligation befalling the respondent in the
matter at hand is not a
"debt"
per se.
They
vied that it is a legal obligation, directly following upon an order
of the Free State High Court. That it is so since to the
extent that
it was the provisional sentence order that entitled the respondent to
the impugned payments in the first place, it follows
that it was a
later order (dismissing the action) that obliged it to repay same. In
the premise, according to the applicants, their
right to seek
repayment is a consequence of the begotten right in terms of a court
order and therefore a
''judgment
debt".
In
this regard they relied analogically on
ABSA
Bank v
Keet.
[22]
[56]
According to section
11 (a) (ii) of the Act, the period of prescription in respect of any
judgment debt shall be thirty years. In
Absa
Bank Limited v Keet
(2015
JDR 0996 (SCA) (Absa)) Zondi JA, writing on behalf of the full bench
of the SCA, held as follows that:
"[i]n
my view, there is merit in the argument that a vindicatory claim,
because it is a claim based on ownership of a thing,
cannot be
described as a debt as envisaged by the
Prescription Act"
(Absa
par 20).
[57]
He added as follows;
that:
"[i]n
the circumstances, the view that the vindicatory action is a 'debt'
as contemplated by the
Prescription Act which
prescribes after three
years is, in my opinion, contrary to the scheme of the Act"
(Absa
par 25).
[58]
Rule 8 (10),
expressly impels any person against whom provisional sentence has
been granted, before entering into the principal case,
to satisfy the
amount of the judgment of provisional sentence and taxed costs,
unless the plaintiff, on demand fails to furnish due
security in
terms of rule 8 (9). Rule 8 (9), for its own part, expressly
obligates a plaintiff, on demand by the defendant, to furnish
the
defendant with security
de
restituendo,
to
the satisfaction of the registrar, against payment of the amount
under the judgment. The plaintiff's right is therefore a qualified
one: i.e. the plaintiff is entitled to
solution
fiduciaria,
payment
under security, regard being had to rule 8 (9).
[23]
[59]
It is trite that
unlike ordinary summons, in essence a provisional sentence summons is
a composite document that serves a dual purpose;
to
wit:
to
institute an action for a definitive judgment by initiating the
principal case and to institute proceedings for an interim relief.
The interim relief obtainable in our law, as in Roman-Dutch law, is
solutio
fiduciaria-
payment
under security.
[60]
It is also trite that
a provisional judgment does not amount to a final or definitive order
but is purely interlocutory. It is so
because after being handed
down, the defendant is still permitted to defend the principal
case.
[24]
It only becomes final
and definitive only if the defendant fails to give notice of its
intention to enter the principal case. A judgment
granting
provisional sentence is thus provisional only and does not prevent
the defendant from entering into the principal case and
obtaining a
dismissal of the claim and reversal of the provisional sentence since
the two are inter-reliant.
[25]
[61]
A provisional
sentence judgment is thus only provisional, in that the defendant may
still defend the principal case.
[26]
It does not amount to
a final and definitive sentence but is purely interlocutory. It
becomes final and definitive only if the defendant
fails to give
notice with regard to its intention to enter into the principal case.
[62]
It has thus been
correctly pointed out that apart from the fact that provisional
sentence is only available to a plaintiff who is
armed with a liquid
document, two further inherent characteristics of provisional
sentence have always rendered it distinguishable
from other remedies.
First is that it only leads to a provisional or interim interlocutory
order. Final judgment is still to be considered
in the principal
case. In the final instance, the claim against the defendant can
still be dismissed. Second is that, while on the
one hand it entitles
the plaintiff to payment of the judgment immediately, on the other
hand it affords the defendant the right to
insist on security for
repayment pending the final outcome.
[27]
[63]
It follows therefore
that, if a plaintiff cannot find acceptable security, it is not
entitled to provisional relief and must wait
for its money until; and
if and only if, it can obtain a final judgment in the principal
case.
[28]
The rule thus
envisages that the two acts provided for in this sub-rule, namely
'demand' and 'payment', should take place simultaneously.
It does not
require that payment precede the demand or
vice-versa.
[29]
[64]
Whilst it can be
deduced from the foregoing that under rule 8, the plaintiff's right
is a qualified one; to
wit:
the
plaintiff is entitled to
solutio
fiduciaria,
payment
under security,
[30]
as alluded above, the
defendant may waive the right to security-
Junius
v Alberts
1906 TH 16
at 18.
This
is what the applicants have done in this case.
[65]
To the extent that an
application for leave to appeal the Free State Full Court's decision
refusing the respondent provisional sentence
was finally dismissed by
the SCA's final judgment or order dated 10
th
January 2017. It
follows that the respondent's failure to prosecute the provisional
sentence claim,
ipso
facto
brought
such proceedings to a necessary degree of finality or rendered same
res
Judicata.
[66]
It is so since as a
"judgment or order" it has three attributes. First, it is
final in effect and not susceptible of alteration
by the SCA. Second,
it is definitive of the rights of the parties. Third, it had the
effect of disposing of at least a substantial
portion of the relief
claimed in the main proceedings.
[31]
[67]
The principle of
exceptio
rei judicatae,
for
its own part, is based on the irrefutable presumption that a final
judgment on a claim submitted to a competent court is correct.
This
presumption is founded on public policy which requires that
litigation should not be endless and on the requirement of good
faith, which does not permit of the same things being demanded more
than once
African
Farms
&
Townships v
Cape Town Municipality
1963 (2) SA 555
(A) 564.
[68]
In the circumstances,
this Court was persuaded and agreed that the said judgment rendered
the repayment of the impugned amounts a
''judgment
debt"
within
the contemplation of section 11 (a) (ii) of the Act. This Court also
agreed that this application is vindicatory, within the
contemplation
of
ABSA v
Keet,
and
therefore cannot prescribe after three years. In the premise, this
Court found that same was still far from prescribing at the
time this
application was lodged. On this count, the issue of prescription had
to fail.
[69]
This Court then
considered the respondent's contention that the impugned payments'
prescribed on the alternative dates suggested.
In this regard, it was
the respondent's contention that the impugned payments attracted a
prescription period of three (3) years,
from the date upon which they
became due i.e. 13
th
August 2018, pursuant
to Justice Kruger's judgment; alternatively, 8
th
September 2019,
pursuant to the Full Court's Judgment; further alternatively, 10
th
January 2020,
pursuant to the Supreme Court of Appeal's order refusing the
respondent leave to petition. In the premise, the respondent
maintained that, absent any timeous and legally recognised
interruption of prescription, the provisional sentence payments have
prescribed.
[70]
According to the
respondent, the applicants' own version was belied by the relief they
seek i.e. payment in respect of interest on
the amounts claimed - not
from 13
th
August 2015 or
thereafter, but way from the date upon which the said payments were
due. The respondents referred this Court to
ST
v CT
[32]
where the Supreme
Court of Appeal at paragraph 116 held that interest on a claim based
on unjust enrichment is not payable until the
debtor has been placed
in
mora.
[71]
In claiming interest
from 14
th
September 2010 and
2ist April 2011, respectively, the applicants thereby implicitly
contend that the respondent was already
in
mora
from
those dates and consequently the debt in respect of which they now
pursue re payment, was already due then. The date of
13th August
2015, being the date on which Kruger J dismissed the provisional
sentence claim, according to the respondent, remains
"the
factual jurisdictional pillar"
rendering
the debt due. It is so, according to the respondent simply because,
by then, all the facts necessary to institute proceedings
were known
to the applicants.
[72]
It was also contended
for the respondent that the applicants' contentions impermissibly
sought to alleviate the provisions of rule
8 to something comparable
to a
sui
generis
cause
of action in circumstances where a cause of action for an entitlement
to substantive relief premised on the uniform rules does
not exist.
Furthermore, that the applicants' argument impermissibly seeks to
alleviate the uniform rules to substantive as opposed
to procedural
status and therefore ignores the fundamental and basic distinction
between substantive and procedural law.
[73]
That repayment in
respect of the impugned payments became due when the underlying
causa
for same
was extinguished on 13th August 2015, pursuant to the Kruger J
judgment. Alternatively, on 8th September 2016, pursuant to
the Full
Court judgment. Further alternatively, 10
th
January 2017,
pursuant to the SCA judgment.
[74]
It is against this
backdrop, in sum, that it was submitted for respondent primarily that
the debt sought to be claimed in these proceedings
was extinguished
by way of prescription on 13
th
August 2018.
Alternatively, on 8th September 2019. Further alternatively, on 10
th
January 2020.
[75]
The applicants, for
their own part, denied that the debt has become prescribed as alleged
by the respondent and contended that the
prescription point is bad.
They averred that it is so since the relevant court order was only
uplifted on 13
th
January 2017, by
their attorneys of record. That the applicants only became aware of
same on 16
th
January 2017, when
their attorneys informed the second applicant accordingly.
[76]
Accordingly, the
applicants maintained that because the impugned debt could only have
become due once they became aware of the fact
that the SCA had
dismissed the petition, the three-year prescription period would only
have elapsed on or about 16th or 17th January
2020 and not on 13
th
January 2020 as is
contended for the respondent.
[77]
It is so that in
Makate,
the
apex court held that in interpreting the Act, one must do so through
the constitutional prism of section 39 (2) of the Constitution,
which
favours an interpretation that promotes access to courts, above those
that impede it.
[33]
The term "debt"
must thus now be interpreted in the context of the Constitution to a
narrower genus; to
wit:
" ...one that involves the payment of money, the delivery of
goods or the rendering of services."
[34]
[78]
It is also so that as
a rule, prescription starts to run as soon as the debt is due unless
the debt is the result of a continuing
wrong
section
12 (1) of the Act.
[35]
Section 12 (1) of the
Act expressly stipulates that subject to the provisions of
subsections (2), (3) and (4), prescription shall
commence to run as
soon as the debt is due. The adjective "due"
inter-alia
connotes:
expected at, planned for or required by a certain time (of a person);
at a point where something owed or merited; required
as a legal or
moral obligation; proper; appropriate; a person's right.
[36]
What is "due"
is thus that which is owing and has matured.
[37]
Conversely, if the
debt is not due, then prescription cannot run because debts only
become due when they are immediately claimable
or recoverable.
[79]
This means that the
debt must be immediately claimable by the creditor in legal
proceedings and that the debtor must be under an obligation
to
perform.
[38]
This also means the
correlative of a debt in this sense is a right of action vested in
the creditor in which the payment of money,
or the delivery of goods,
or the rendering of services is claimed. This further means that when
payment, delivery or the rendering
of services extinguishes the debt,
the right of action is likewise extinguished. That is clearly why
section 12 (1) of the Act expressly
provides that prescription will
commence to run once the debt is due.
[80]
It is so that
prescription in terms of the Act begins to run not necessarily when
the debt arises, but only when it becomes due.
[39]
In other words, a
debt must be immediately enforceable before it can be claimed.
[40]
Conversely, if the
debt is not due, then prescription cannot run because debts become
due when they are immediately claimable or recoverable.
There can
therefore be no doubt, that the jurisprudential basis of the
legislature in enacting section 12 (1) was to delineate the
difference between the coming into existence of a debt and the
recoverability thereof.
[41]
[81]
It is trite that a
debt is not deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts giving
rise to the debt. It
is also trite that a party who could have acquired the knowledge by
exercising reasonable care is deemed to
have had such knowledge-
section 12
(3) of the Act.
[42]
[82]
Consequently, it has
been held in a number of decisions in the penultimate courts that the
word "debt" in section 12 (1)
of the Act does not refer to
the narrower concept of a "cause of action", but rather to
the broader concept of "right
of action", or what has come
to be known as the creditor's "claim".
[43]
Harms JA succinctly
put it thus in
Drennan
Maud Partners v Pennington Town Board:
[44]
"In short, the word 'debt'
does not refer to the 'cause of action', but more generally to the
'claim"... In deciding whether
a 'debt' has become prescribed,
one has to identify the 'debt or put differently, what the 'claim'
was in the broad sense of the
meaning of that word."
[83]
In
Deloitte
Haskins
&
Sells
Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd,
the
court held that, for prescription to commence running, there has to
be a debt immediately claimable by the creditor. Put otherwise,
there
has to be a debt in respect of which the debtor is under an
obligation to perform immediately.
[45]
Similarly, in
Sentrachem
v Prinsloo
[46]
held that the word
"debt"
refers to
the
"right
of action"
[47]
and not the
"cause
of action."
[84]
Again, in
Standard
Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (in
liquidation)
[48]
Zulman JA said:
"The
concept of a 'debt' for the purposes of the Act, is wider than the
technical term "cause of action"'
and
Farlam JA succinctly summarised the concept when he said that:
"What
prescribes in terms of the
Prescription Act, 68 of 1969
, is a 'debt',
that has to say, not a 'cause of action: but a 'claim.
"'
[49]
[85]
It follows from the
foregoing that a
"debt"
will not
become due and claimable where there is a legal bar or administrative
decision which prevents the creditor from claiming
the debt.
[50]
This is because there
can be no right to institute action where there is a legal bar
preventing it. This will be the case even where
the administrative
decision in question is unlawful. Until the legal bar or
administrative action has been removed or set aside,
the debt is not
claimable and prescription does not run against the creditor.
[51]
[86]
Since the applicants
have averred that whilst their attorneys of record only became aware
of the SCA order on 13th January 2011, the
latter only advised them
of same on 16
th
January 2011. The
question arose as to whether this information can be imputed to the
applicants. It is so in our law that the general
knowledge acquired
by an agent and not communicated to its principal is imputed to the
latter merely by reason of the fact that the
agent has acquired such
knowledge, provided that the knowledge is acquired in the course of
the agent's employment and further that
there was a duty upon the
agent to communicate the information obtained. The knowledge acquired
by the applicants' attorneys on 13
th
January 2017, that
the SCA has refused the respondent's leave to petition was therefore
to be imputed to the applicants.
[52]
[87]
It is common cause
that the respondent's provisional sentence claim has been subject of
various applications for leave to appeal and/or
appeals ever since
same was originally dismissed by Kruger J on 13th August 2014, until
the SCA finally dismissed the application
for leave to petition
pertaining thereto, on 10
th
January 2017.
[88]
Section 18
(1) of the
Superior Courts Act 10 of 2013
, expressly stipulates as follows:
"Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise,
the
operation and execution of a decision which is the subject of an
application for leave to appeal or of an appeal. is suspended
pending
the decision of the application or appeal.
"
[53]
[89]
It follows from the
foregoing that the respondent's argument of prescription erroneously
equates or conflates the narrower concept
of a "cause of action"
with the broader concept of "right of action", or what has
come to be known as the creditor's
"claim". The word "debt"
in Section 12 (1) of the Act refers to the former as opposed to the
latter.
[54]
It is so since the
word "debt" in our law refers generally to the claim and
not the cause of action.
[55]
[90]
Assuming the
respondent was correct that the impugned amounts are quintessential
examples of ordinary and straight forward debts which
attract a
prescription period of three years from the date upon which the debt
became due. It follows that between the dismissal
of the respondent's
provisional sentence claim by the court
a
quo
on
13
th
August 2015 and the
SCA's dismissal of its application for leave to appeal on 10
th
January 2017, the
applicants' claim for repayment remained suspended in terms of
section 18
(1) of the
Superior Courts Act.
[91
]
To the extent that
until 13
th
January 2017, the
dismissal of the respondent's provisional claim remained suspended
and therefore legally barred, prescription commenced
to run (i.e. the
debt became due) only after the said date, if at all. The applicants
lodged this application on 10
th
January 2020, just
before same presumably prescribed. In the premise, this point
in
limine
once
more failed on this score too.
Whether the applicants made out
a
prima facie
case for the relief sought
[92]
There are a number of
cases which recognise the right of a respondent, in spite of having
filed an answering affidavit, to raise an
objection
in
limine
that
the founding affidavit does not make out a
prima
facie
case
for the relief claimed.
[56]
A respondent who
files an affidavit on the merits is thus entitled to make any legal
contention open to it on the facts as they appear
on the affidavits
and notice of such legal contention need not be given, provided that
the raising of the legal contention is not,
in the circumstances,
unfair to the applicant. The respondent contended that the applicants
have not made out a
prima
facie
case
for the relief sought.
[93]
Paragraphs 7.2; 8.1
and 8.2 of the founding affidavit is the fulcrum against which the
applicants have predicate their motion. Paragraph
7.2 reads:
"...
we
seek
simple
repavment
of
an amount we were ordered to pay in terms of a provisional sentence
order and judgment the Free State High Court had granted against
us
on 19 November 2009. The claim is thus one of
simple
repayment,
because
GWK [Respondent] was unsuccessful in the main proceeding.
"
[57]
(sic)
[94]
Paragraphs 8.1 and
8.2, in turn read as follows:
"8.1 GWK must
repay what the court had provisionally ordered us [the applicants] to
pay to it on the date I have
mentioned.
8.2
GWK has exhausted all legal remedies at its disposal and
notwithstanding its failure to secure payment of over
R12 million
against us, it refuses to repay the provisional sentence judgment
amount ...
"
[95]
The respondent, for
its own part contended that the matter is not as simple and
"one-dimensional" as the applicants contend.
It was
submitted for the respondent that the applicants should have sounded
their claim in
condictio
ob causum finitam.
The
said cause of action is an offshoot of the
condictio
sine causa specialis.
Its
purpose is to recover property transferred under a valid
causa
which
subsequently fell away-
Kudu
Granite Operations v Caterna Ltd
2003 (5) SA 193
(SCA).
[96]
The respondent
maintained that the applicants, in this sense, were obliged to resort
to a cause of action based on unjust enrichment
and to bring it
within its ambit. To the extent that the founding affidavit did not
even attempt to engage the jurisdictional requirements
of a cause of
action based on unjust enrichment, it was wholly insufficient to
sustain a cause of action. In the premise, according
to the
respondent, the application ought to have been dismissed on this
ground alone.
[97]
This Court disagreed
with the respondent on this score. The applicants' cause of action is
simply that of payment and nothing more
pretentious. They correctly
contended that they only sought restitution in the form of repayment
of the provisional sentence amounts
previously paid by them not as a
substantive remedy but a distinct procedural remedy restoring the
status quo
ante.
[98]
It is sufficient in
our law for a plaintiff claiming payment to simply allege the
defendant's failure to make payment. Contrariwise,
a defendant
wishing to rely on payment, in defence may only allege and prove the
payment-
Standard
Bank v Oneanate (in liquidation)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA).
In
the premise, this point
in
limine
too
had to fail because the applicants did make out a
prima
facie
case
for the relief sought.
Whether the impugned payments
amounted to part-payment or set-off of the alleged outstanding
indebtedness of the applicants to the
respondent
[99]
According to the
respondent, at the time the impugned payments were made, the
respondents and the trust were indebted to it in an
amount of at
least R4 530 536.05. It was therefore argued for the respondent that
to the extent that no allocation was made by the
trust as against
which particular portion of the outstanding indebtedness the said
payments should apply, the applicant was entitled
to allocate same to
the oldest outstanding debt first.
[100]
The respondent
contended that the provisional payments were made in part payment of
the debts owed to it by the applicants. According
to the respondent,
it accepted the impugned payments, regardless of those payments being
made in terms of a provisional sentence
order and by the trust, in
lawful part payment of an existing lawful debt owed to it. That in
applying set-off, the total outstanding
amounts owed to the
respondent by the applicants and the trust are commensurately reduced
and set-off.
[101]
It was thus contended
for the respondent that since in terms of the accelerated clause
contained in the acknowledgement of debt agreement,
the applicants
are still indebted to it. That the respondent still intends to pursue
same imminently by action. In the circumstances,
judgment in respect
of this application should be postponed and this application stayed,
pending the adjudication and determination
of its claim in
reconvention.
[102]
The applicants, for
their own part, contended that the set-off argument is absurd. That
it amounts to a litigating party, who has
lost in all courts bar one
in the land, asserting that as far as it is concerned, the money is
still owed, so no matter what, it
is not going to pay it back. That
it is difficult to find any legal substance to such an argument,
especially since it defies the
respondent's obligation post the
dismissal of its provisional sentence claim.
[103]
Whilst it is so that
a defendant who wishes to set-off a liquidated claim against a
plaintiff's claim need not file a counterclaim
but may plead set-off.
It is also so that a defendant who wishes to set-off an unliquidated
claim is obliged to proceed by way of
a counterclaim-
Muller
v BOC
2003
(1)
SA 651
(SCA). The counterclaim will then serve to render the illiquid
claim liquid, whereupon the claim can be set-off against the main
claim. The defendant would then rely in the plea on the existence of
the counterclaim and request that judgment in respect of the
claim or
portion of it, which would be extinguished by the counterclaim be
postponed until judgment on the counterclaim. Judgment
on the claim
must then be postponed, whether on the whole or part of it must then
unless the court, on application, orders otherwise-
rule
22
(4).
[104]
Set-off thus in
effect amounts to payment
brevi
manu
i.e.
the one debt extinguishes the other
pro
tanto
as
effectually as if payment had been made-
Joint
Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund
1969 (2)
SA 78
(T);
Cf.
Absa Bank Limited v Standard Bank of SA Limited
[1997] ZASCA 71
;
1998
(1) SA 242
(SCA). It takes place when two parties (a) are mutually
indebted to each other; and (b) both debts are liquidated and fully
due.
Set-off operates automatically and not because of a plea of
set-off-
Western
Cape Housing Development Board v Parker
2005
(1) SA 462
(C).
[105]
To rely on set-off
however, the defendant must allege and prove the following: (a) The
indebtedness of the plaintiff to the defendant-
Porterstraat
69
Eiendomme
(Pty) Ltd v PA Venter Worcester (Pty) Ltd
2000
(4) SA 598
(C); (b) That the plaintiff's debt to the defendant is due
and payable-
Schnehage
v Bezuidenhout
1977
(1) SA 362
(O); and (c) That both debts are liquidated and that the
parties are indebted to each other in the same capacity-
Capricorn
Beach Home Owners Association v HES Potgieter
2014
(1) SA 46
(SCA).
[106]
It follows from the
foregoing that if a creditor claims payment, the defendant must plead
and prove set-off. Once set-off is established,
the claim is deemed
to have been extinguished (fully or in part) retrospectively
(ex
tune)
from
the moment mutuality of the debts arose. It also follows from the
foregoing that only a liquidated debt can be set-off.
[107]
It is trite that a
debt is liquidated if and only if (a) it is based on a liquid
document; (b) it is admitted; (c) its monetary value
has been
ascertained; or (d) it is capable of prompt ascertainment
Fatti's
Engineering
Co
(Pty) Ltd v
Vendick Spares (Pty) Ltd
1962
(1) SA 736
(T).
[108]
The foregoing exposes
at least two flaws in the respondent's argument. The first is that
the debt against which the set-off contention
is predicated is not
liquidated but, is according to the respondent,
"parameterised."
According
to the respondent, this is so because:
"It was
always difficult for the GWK [respondent] to have done so pursuant to
the fact that the debt that it intends to pursue
emanates from
numerous contracts and a multi-faceted indebtedness that has accrued
over almost two decadesâ¦.
[58]
As matters
presently stand... Wilke [second applicant] and the Trust are jointly
and severally indebted to GWK [respondent]
in
a conservative amount of at least R4.530.536.05-pavment in respect of
which indebtedness GWK intends to pursue in terms of its
intended
imminent action
.
"
[59]
[109]
The second is that in
these proceedings, no counterclaim existed to be relied upon, at all
material times hereto. The respondent instead
relied
inter-alia
on
"a
Judgment that it anticipates to obtain pursuant to an imminent action
[which] will extinguish the Judgment the applicants
pursue in terms
of this application"
[60]
[110]
The respondent
further averred as follows, in this regard:
[61]
"14
7.
G
WK
claims against Karob [first applicant] Wilke [second applicant] and
the Trust are undoubtedly alive, as of right, GWK is entitled
to
pursue those claims and it is quite able, prepared and now ready to
pursue payment from particularly Karob, Wilke and the Trust
in
relation to any amount owing to it by them respectively
"
148.
GWK
is in the process of finalising its summons and will shortly be
instituting its action
in
order to pursue payment from Karob, Wilke and the Trust in relation
to the aforesaid subject indebtedness "
[62]
[111]
In our law, it is so
that only a liquidated debt may be set-off. A defendant who wishes to
rely on an unliquidated debt must therefore
first deliver a claim in
reconvention and pray for the postponement of judgment on the
plaintiff's claim, pending judgment on the
claim in reconvention.
[112]
It is common cause
that whilst the provisional sentence summons was entirely predicated
against the impugned acknowledgment of debt,
the provisional sentence
order was granted only in part. It follows that to the extent that
the alleged outstanding debt is neither
currently liquidated nor
based on a liquid document; nor admitted; or its money value
ascertained; is incapable of prompt ascertainment;
and no
counterclaim has been delivered- same cannot be set-off. In the
premise, this defence also had to fail.
Whether the impugned payments
could be appropriated by the respondent
[113]
It is so in our that
that generically, when the debtor does not appropriate the payment to
any particular debt, the creditor is entitled
to do so when payment
is made-
Douglas
Green Bellingham v Green
[1997] ZASCA 76
;
1998
(1) SA 367
(SCA). It is also so that the rules of appropriation of
payment operate when a debtor who owes more than one debt to the same
creditor
pays the creditor an amount which is insufficient to
discharge the total indebtedness to the creditor-
Pfeiffer
v First National Bank
1998
(3) SA 1018
(SCA).
[114]
It is further so that
if capital and interest are owing in respect of the same
indebtedness, payment must be credited first to interest
and
thereafter to capital-
Standard
Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation)
[1997] ZASCA 94
;
1998
(1) SA 811
(SCA). Lastly, whilst it is so that older debts are
settled before more recent ones, when none of the specific rules
apply, the various
debts are settled proportionally.
[115]
It is common cause
that when payment of the impugned payments was made for the
applicants, same was
ex
lege
appropriated
exclusively to the satisfaction of the amount of the judgment of the
provisional sentence and taxed costs and nothing
extrinsic thereto.
Any debt or cause of action or claim falling outside the said order
therefore falls outside the province of these
proceedings and
irrelevant.
[116]
To the extent that
when the Supreme Court of Appeal, refused the respondent leave to
appeal, the basis of the provisional sentence
granting it fell away.
It follows that since the claim has now fallen away, there is no
legal basis upon which the respondent can
hold on to what has been
previously provisionally ordered by the Free State High Court on 11
th
September 2009. It is
so since to the extent that a plaintiff who alleges a
causa
debiti,
is
strictly confined thereto.
[63]
It follows that, it
is impermissible for a plaintiff to chop and change the
causa
debiti
or
to shift the goal posts, after its principal case has been dismissed.
[117]
In the premise, this
Court had to find that the respondent was not entitled to appropriate
the impugned payments to any other alleged
debts other than the
purpose for which same was paid. This defence thus also failed.
COSTS
[118]
The applicants
contended that there was really no reason why they should be forced
to even bear the most elementary part of their
legal costs because
the respondent's refusal was so baseless that it warrants a punitive
legal cost order. The respondent, for its
own part contended that,
regard being had to its contentions, this application should have
never been launched. In the circumstances,
it sought a punitive costs
order on the scale as between attorney and own client.
[119]
The determination of
an award of costs in favour of a successful party is
inter-alia,
to
indemnify it for the actual expense to which it has been put through
having been unjustly compelled to initiate or defend litigation,
as
the case may be.
[64]
Such an award is
however seldom a complete indemnity.
[65]
[120]
Regard being had to
the facts and circumstances of this case, this Court concluded that
the applicants have been unjustly compelled
to initiate this
application in order to obtain what clearly has always been due to
them. This merely because they have waived their
right to security
de
restituendo
upon
provisional payment of the impugned amounts. It should not be so. In
the premise, they are entitled to be indemnified for the
actual
expense to which they have been put through.
[66]
[121]
Having found in
favour for the applicants. This Court agreed with the applicants that
there was really no reason why they should be
forced to even bear the
most elementary part of their legal costs because the respondent's
refusal was so baseless that it warrants
a punitive legal cost order.
Costs were granted accordingly.
CONCLUSION
[122]
Indeed, to state that
a statutory enactment, if it has no purpose, is futile, is to state
an axiom.
[67]
It is so since it has
long been recognised that giving effect to the policy or object or
purpose of legislation is an accepted strategy
of statutory
interpretation.
[68]
It has thus always
been the duty of our courts to give effect to the purpose of an
enactment.
[123]
The object of the
Uniform Rules of Court is to ensure a fair trial, and they should be
interpreted in such a manner that they conform
to this constitutional
imperative. Where the rules do not provide for a particular set of
circumstances, the court has inherent jurisdiction
to read the rules
in a manner which enables justice to be administered, and to handle
the matter along practical lines.
[69]
It is also so that
courts have the inherent power to prevent an abuse of the legal
machinery.
[124]
In
Dadoo
v Krugersdorp Municipal Council,
it
was clearly stated that the duty of a court is to:
"...carry
out effectually the object of a statute and it must be construed to
defeat all attempts to do or avoid in an indirect
or circuitous
manner that which it has prohibited or enjoined.
â
[70]
[125]
In
Ncoweni
v Bezuidenhout,
1927
CPD 130:
per
Gardiner,
JP, it was better stated that:
"The
Rules of procedure of this Court are devised for the purpose of
administering justice and not of hampering it, and where
the Rules
are deficient,
I
shall go as far as I can in granting orders which would help to
further the administration of justice".
[71]
[126]
And in
Booi
v Amathole District Municipality
&
others
(2022) 43 ILJ 91 (CC),
the
apex court unequivocally stated as follows:
"As always, any order that
this court makes must be just and equitable in the circumstances, as
demanded by s 172 of the Constitution".
[127]
The provisional
sentence which was claimed and partially granted is what entitled the
respondent to interim payment of the impugned
amounts and nothing
more. It is so since it is trite in our law that if a plaintiff
withdraws the principal case, it amounts to a
withdrawal of the whole
action, including the provisional sentence summons, because the two
are interdependent.
[72]
[128]
There is therefore no
justification for the retention of the applicants' monies by the
respondent. The obligation on the applicants
to pay to the respondent
fell away immediately when the Supreme Court of Appeal dismissed the
respondent's application for leave
to appeal. It is so since once
judgment was given, the security was automatically discharged. From
that date, the respondents became
entitled to a return of what was
paid as a result of the provisional sentence judgment. This Court
therefore had no discretion in
the matter because when money is paid
for particular purpose, once the purpose is dispensed with, by parity
of reason, the money
must be repaid.
[129] It is for
the foregoing reasons that this Court granted the order sought.
Anything to the contrary would have been
subversive of the purpose
and jurisprudential basis of provisional sentence. It would have also
flown in the face of the applicants'
rights entrenched in sections 9,
25 and 34 of the Constitution.
[73]
JUDGEE APS NXUMALO
NORTHERN CAPE DIVISION
KIMBERLEY
26
TH
APRIL 2022
Counsel
for the Applicants:
ADV S GROBLER SC
Instructed by:
Haarhoffs Inc.
Kimberley
Ref:
Mr DD Pretorius
Counsel
for the Respondent:
ADV LOURENS
Instructed by:
Van De Wall Inc.
Kimberley
Ref:
S Addinall/Edna/M05699
[1]
RAF
and Another v Mdeyide
2011
(2) SA 26 (CC).
[2]
CSARS
v Sprigg Investment
2011
(4) SA 551
(SCA) at 561A-E; see also
Strategic
Liquor Services v Mvumbi
2010
(2) SA 92 (CC).
[3]
Section
34 of the Constitution expressly stipulates that everyone has the
right to have any dispute that can be resolved by the
application of
law decided in a fair public hearing before a court of law or, where
appropriate, another independent and impartial
tribunal, or forum.
[4]
Rule
8 (10) of the Uniform Rules of Court, expressly stipulates as
follows; that:
"Any
person against whom provisional sentence has been granted may enter
into the principal case only if he shall have satisfied
the amount
of judgment of the provisional sentence and taxed costs, or if the
plaintiff on demand fails to fi1rnish security in
terms of sub rule
(9)."
[5]
Para
11.3,p12,FA.
[6]
Super
Eight Promotions v Dial Picture Promotions
1976
(2) SA 748
(T) at 750D.
[7]
Light
Wall Erection v De Tweedespruit Farm
1976
(1)
SA 944
(W) at 947.
[8]
(supra)
at
947C.
[9]
Junius
v Alberts
1906
TH 16
at 18.
[10]
Kudu
Granite Operations (Pty) Ltd v Caterna Ltd
2003
(5) SA 193
(SCA) at particular 14-16
[11]
Emphasis
supplied.
[12]
Super
Eight Promotions v Dial Picture Productions
1976
(2) SA 748
(T) at 750D.
[13]
See
rule 8 (10), Uniform Rules of Court.
[14]
Skielbreds
Rederi v Hartless
1982
(2) SA 710
(A) at 736-737;
Belonje
v African Electric
1949
(1) SA 592 (E)
[15]
In
terms of section 6 of the Interpretation Act 33 of 1957, in every
law, unless the contrary intention appears (a) words importing
the
masculine gender include females; and (b) words in the singular
number include the plural, and words in the plural number include
the singular.
[16]
Mineworkers
Union v Cooks
1959
(1) 146 (W).
[17]
Inter-Continental
Finance
&
Leasing
Corp v Stands 56 & 57 Industria
1979
(3) SA 740
(W).
[18]
NBS
Bank v Cape Produce
2002
(1) SA 396
(SCA).
[19]
Mineworkers'
Union v Cooks
1959
(1)
709
(W).
[20]
Barnett
v Abe Swersky
&
Associates
1986
(4) SA 407 (C).
[21]
68 of 1969,
hereinafter referred to simply as
"the
Act".
[22]
2015
(4) SA 474 (SCA)
[23]
Osmans
v Corporate International
2005
(6) SA 494 (W)
[24]
Pretorius
v Weedon
1961
(3) SA 702
(N) at 710 at 711B.
[25]
Para
231, 161, Law SA, 3
rd
Ed,
Vol 4.
[26]
Pretorius v
Weedon (supra)
at
710 in fine 711B.
[27]
Twee
Jonge v Land and Agricultural Development Bank of SA
2011
(3) SA 1
(CC) at 9A.
[28]
Rhoode
Construction v Cape Provincial Administration
1976
(4) 925 (C) at 929B.
[29]
Van
der Merwe v Bonaero
2000
(4) SA 329
(A) at 334C-F.
[30]
Osmans
v Corporate International (supra)
at
499H-I.
[31]
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A) at 532.
[32]
2018
(5) SA 479 (SCA).
[33]
Section
39 (2) of the Constitution, expressly requires every court, tribunal
or forum to promote the spirit, purport and objects
of the Bill of
Rights, when interpreting any legislation and when developing the
common law or customary law.
[34]
Makate
v Vodacom
2016
(4) SA 121
(CC) at paras 87-93.
[35]
Standard
Bank v Miracle Mile Investments
2017
(1) SA 185 (SCA).
[36]
Concise
Oxford English Dictionary, 10
th
Edition
Revised.
[37]
White
v Municipal Council of Potchefstroom
1906
TS 47.
[38]
Trinity
Asset Management v Grindstone Investments
2018
(1) SA 94 (CC).
[39]
Apalamah
v Santam Insurance Co Ltd
1975
2 SA 229
(D) 232E-G
[40]
Njongi
v MEC Department of Welfare Eastern Cape
[2008] ZACC 4
;
2008
4 SA 237
(CC) 257A, 261A
[41]
List
v Jungers
[1976]
2 All SA 121
(A), 19793 SA 106 (A) 121C-D; see also
Eskom
v
Stewarts and Lloyds
(Pty)
Ltd
1979
4 SA 905
(W) 908F; see also
The
Master v Ivan Laubser Back
&
Company
Ltd
[1983]
3 All SA 546
(A), 1983 I SA 986 (A) 1004E; see also
Benson
&
Walters
[1984]
1 All SA 283
(A), 1984 I SA 73 (A) 82A-B. See
also
ABSA Bank v Keet
2015
4 SA 474
(SCA), [2015] 4 All SA I (SCA) as to when a debt in terms
of an instalment agreement became due
[42]
ATB
Chartered Accountants
v
Bonfiglio
[2011]
2 All SA 132 (SCA).
[43]
See
Duvenhage
v Eerste Nasionale Bank van SA Bpk
[2005]
4 All SA 46
(N) 57 and
Apalamah
v Sanlam Insurance Company Ltd
1975
(2) SA 229
(D) 232E-F;
Van
Vuuren v Boshoff
[1998] ZASCA 29
;
1998
3 SA 200
(SCA) 212F J
[44]
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA) 212F-J
[45]
1991
(1) SA 525 (A) 532H
[46]
[47]
[48]
As can be seen from
the difference in Afrikaans terminology, this is not simply a
distinction without a difference: for the purposes
of prescription
it does not commence to run when a cause of action comes into
existence. It commences when there is a right to
institute the
action: "the right of action".
[49]
Unilever
Bestfoods Robertsons v Soomai
2007
2 SA 347
359F-H
[50]
E.g. Where the
benefits under a life policy fall due on the death of the deceased,
prescription of the beneficiary's claim to those
benefits starts to
run from the date of the insured's death. The start of the running
prescription is not postponed by any delay
by the insurer in
deciding whether to pay out or not:
Danielz
v
De
Wet
2009
6 SA 42
(C) paras 47 to 55. Traverso AJP said at para 53 that one
must not in such a situation erroneously equate
"the
concept of a contractual right to performance, with a delayed
decision on the part of [the insurer] whether to perform
under the
contract or not."
[51]
Njongi v MEC
Department of Welfare Eastern Cape
2008
(6) BCLR 571 (CC) 592 B
[52]
Std
Bank v Prinsloo
2000
(3) SA 576 (C).
[53]
Emphasis
supplied.
[54]
Duvenhage
v Eerste Nasionale Bank van SA Bpk
[2005]
4 All SA 416
; see also
Apalamah
v Santam Insurance Company Ltd
1975
(2) SA 229
(D)
232E-F;
Van
Vuuren v Boshoff
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA) 212F J
[55]
Frieslaar
v Ackerman
[2018]
JOL 39600 (SCA).
[56]
Erasmus,
D1-65, Service 7, 2018.
[57]
Emphasis
supplied.
[58]
Paragraph
150, AA, Bundle 2.
[59]
Paragraph
158,
ibid.
Emphasis
supplied.
[60]
Para
137, pl 55, Bundle 2.
[61]
Paras
147-148, AA.
[62]
P158,
AA, Bundle 2. Emphasis supplied.
[63]
Wustrow
v Wustrow
1980
(2) SA 308 (W).
[64]
Price
Waterhouse Meyernel v The Thoroughbred Breeders' Association of SA
2003
(3) SA 54 (SCA) 61.
[65]
Payen
Components v Bovie Gaskets
1999
(2) SA 409
(W) 417.
[66]
Price
Waterhouse Meyernel v The Thoroughbred Breeders' Association of SA
(supra).
[67]
EA
Kellaway, Principles of Legal Interpretation, p 66.
[68]
Stopforth
v Min of Justice; Veenendaal v Min of Justice
2000
(I) SA 113 (SCA) at para 21.
[69]
Brown
Bros v Doise
1955
(1) SA 75 (W).
[70]
1920
AD 530
at 562.
[71]
Emphasis
supplied.
[72]
Reed
v Reed
(1905)
3 Buch AC 261.
[73]
The
said sections respectively provide as follows: Section 9 (1),
everyone is equal before the law and has the right to equal
protection
and benefit of the law. Section 25 (1), no one may be
deprived of property except in terms of law of general application
and no
law may permit arbitrary deprivation of property. Section 34,
everyone has the right to have any dispute that can be resolved by
application of law decided in a fair public hearing before a court
or where appropriate, another independent and impartial tribunal
or
forum.