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[2019] ZALMPPHC 36
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Cashbuild (South Africa) (Pty) Ltd v Pyroca 109 CC t/a ADA and /ADA Civils and Another (7605/2017) [2019] ZALMPPHC 36 (5 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO:7605/2017
In
the matter between:
CASHBUILD
(SOUTH AFRICA)
(PTY)
LTD
: APPLICANT/PLAINTIFF
And
PYROCA
109 CC t/a ADA
AND
/ ADA CIVILS
: FIRST RESPONDENT/DEFENDANT
PITER
ANDR`e CRHISTIAAN
VENTER
: SECOND RESPONDENT/DEFENDANT
JUDGMENT
SEMENYA
J:
[1]
The issues to be decided upon in this application are the following:
a) whether Plippie Du
Plessis, the deponent to the founding affidavit has authority to
launch and to prosecute this application
on behalf of the applicant;
b) whether the second
respondent should be joined to the action instituted in this court by
the applicant against the first respondent.
c) whether certain parts
of the replying affidavit should be struck out in terms of rule 6(5)
( e) of the Uniform Rules of Court;
and, if not
d) whether the
respondents should be permitted to file additional affidavit.
[2]
The applicant in this matter instituted action against the first
respondent in which it claims payment of an amount of R1 460 403.00.
The claim is based on an acknowledgment of debt singed by the second
respondent on behalf of an entity known as of Pyroca 109.
It has
become common cause that Pyroca 109 CC is trading as ADA Civils. The
second respondent is also a member of PACV Civil Construction
CC
which is trading as ADA Construction, a company which is in
liquidation.
[3]
The factual background of the events that led to this application,
which are mainly common cause, is as follows. The applicant
sold bags
of cement to an entity it refers to in the acknowledgment of debt as
ADA Construction. When payment was not forthcoming
after the signing
of the acknowledgement of debt, the applicant issued summons citing
Pyroca 109 as the defendant. The applicant
applied for summary
judgment after the entering of a notice of intention to defend the
action by the first respondent. In the affidavit
filed in resistance
of the summary judgment, the first respondent stated that Pyroca 109
trades under the name of ADA Civils and
not ADA Construction and that
ADA Construction is the trading name of PACV Civil Construction CC.
The first respondent denied
liability in that Pyroca 109 has
nothing to do with the acknowledgment of debt upon which the
applicant relies.
[4]
The grounds upon which the applicant seeks to join the second
respondent to the action are listed as follows in the founding
affidavit:
i. That the second
respondent knew at the time of the signing of the acknowledgment of
debt, in which the debtor is referred to
as ADA Construction, that it
is PACV and not Pyroca, which is trading as ADA Construction;
ii. that he, the second
respondent has authorised the application for placing PACV under
liquidation; and that
iii. that the second
respondent knew, alternatively ought to have known that PACV CC has
been placed into final liquidation prior
to the signing of the
acknowledgement of debt.
[5]
The respondents objected to the applicant’s lack of authority
to institute and to prosecute this application. In reply,
the
applicant stated that rule 7 permits a party, with leave of the
Court, to file evidence that prove authority to launch the
application and to attach the necessary resolution to the replying
affidavit. The respondent contended that a distinction has to
be made
between a power of attorney and capacity to institute proceedings.
The respondents placed reliance on
Mall (Cape) Ltd v Merino
Ko-Operasie Bpk
[1957] 2 All SA 242
(C) (Mall).
[6]
It is evident from the replying affidavit that the applicant
misunderstood the objection raised by the respondent. The applicant
seems to be under the impression that the respondent is challenging
the absence of the power of attorney, which in terms of Rule
7 and
with leave of the Court, may be cured by attaching same to the
replying affidavit. In the present matter, the respondent
is
challenging the deponent’s authority to launch this application
and/or the capacity to depose to the affidavit. In Mall
the court
made a distinction between a case where the litigant is a natural
person who is instituting proceedings on his or her
behalf and where
he is doing so on behalf of a juristic person. The Court held that in
the case of a natural person, where a notice
of motion is complete
and regular on the face of it and purports to be signed by an
attorney, the court may presume, in the absence
of anything that
shows that the applicant has not in fact authorised the attorney to
issue the notice of motion on his behalf,
that the attorney has been
authorised. The Court however stated that in the case of an
artificial person evidence should be placed
before the Court to show
that the applicant has duly resolved to institute the proceedings and
that the proceedings are instituted
at its instance.
[7]
The Court in Mall stressed the need to treat each case according to
its own merits in deciding whether sufficient evidence has
been
placed before it. The Court found that the words “
duly
authorised to make this affidavit
” constituted sufficient
evidence that the company authorised the institution of the
proceedings. In the matter before this
Court there is no minimal
evidence to show that the applicant authorised the application. The
deponent to the founding affidavit
simply states that he is the
Divisional Manager employed by the applicant. There is nothing from
which this Court may find that
the applicant, an artificial person,
knows about this application.
[8]
Counsel for the applicant submitted that where authority is
challenged in the answering affidavit, the applicant is entitled
to
make out a case in reply. It is indeed so that in reply the deponent
states that he is duly authorised to institute the proceedings,
which
would have been sufficient according to Mall, had it been so stated
in the founding affidavit. However, despite a clear objection
to the
locus standi
the deponent failed to attach the resolution of
the directors that authorises him, and not the attorneys, to
institute the proceedings.
The founding affidavit was deposed to on
the 14 September 2018. The application was filed with the Registrar
on the 21 September
2018. The resolution that authorises a firm of
attorneys to act on behalf of the applicant has got its own
challenges. It was adopted
by the Directors of the applicant on the 5
December 2018. The respondent argued on the basis of
M & V
Tractor and Implement Agencies Bpk v Vennootskap D S U Cilliers &
Seuns; Hoogkwartier Landgoed; Olieevier Landgoed
(Edms) Bpk (Kelrn
Vervoer (Edms) BpkTussenbeitredend)
2000 (2) SA 571
(N) at 580 H-I,
that the attachment of the resolution which did not exist at the time
of the launching of the application will not remedy the defect.
I
have no reason not to find that the application was launched without
the authority in the form of a resolution of the applicant’s
Directors. The deponent therefore did not have the necessary
locus
standi
.
[9]
I do not deem it necessary to decide on the other issues raised by
the respondent on the basis of my finding that the application
was
not properly authorised save for the issue of costs. The general rule
with regard to costs is that it should follow the results.
There is
no reason why I should deviate from the norm. Counsel for the
respondent argued that they are entitled to costs of two
applications
being the main application and the application to strike out new
evidence. Counsel argued that in the normal
cause of events the
replying affidavit is not supposed to be longer than the founding
affidavit as is the case in this matter.
The applicant raised more
factual allegations in reply than it did in the founding affidavit.
The Court cannot close its eyes to
the allegation that the applicant
was aware of these facts when the founding affidavit was deposed to.
The respondent was entitled
to apply for the striking out of certain
facts and to file a supplementary answering affidavit which was not
objected to by the
applicant. I find that the respondent is entitled
to costs of the two applications.
[10]
In the results I make the following order:
1. The application for
joinder of the second respondent is dismissed;
2. The respondent is
granted costs of the two applications.
M.V SEMENYA
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION.
APPEARANCES:
ATTORNEYS FOR THE
APPLICANT : VAN DER VYVER INC.
COUNSEL FOR THE
APPLICANT : ADV. B.
MARAIS
ATTORNEY FOR THE
RESPONDENT : ASPAG MAGWAI ATT.
COUNSEL FOR THE
RESPONDENT : ADV. M BRESLER
RESERVED
ON
: 19 JUNE 2019
JUDGMENT
DELIEVERED ON
: 5 AUGUST 2019