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[2019] ZAGPPHC 59
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Mahsilo Lambrecht Architects v The Premier of The Executive Of Mpumalanga and Another (3442/2016) [2019] ZAGPPHC 59 (14 March 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(FUNCTIONING AS THE
MPUMALANGA CIRCUIT COURT, MBOMBELA)
CASE NO:
3442/2016
14/3/2019
In
the matter between:
MAHSILO
LAMBRECHT ARCHITECTS
(Applicant
in the application for leave to appeal)
PLAINTIFF
and
THE
PREMIER OF THE EXECUTIVE OF MPUMALANGA
(Respondent
in the application for leave to appeal)
FIRST EXCIPIENT/ 1
ST
DEFENDANT
MEMBERS
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF PUBLIC WORKS,
ROADS
AND TRANSPORT OF THE
PROVINCIAL
GOVERNMENT OF MPUMALANGA
(Respondent
in the application for leave to appeal)
SECOND EXCIPIENT/2
ND
DEFENDANT
JUDGMENT
(APPLICATION FOR LEAVE
TO APPEAL)
AC
BASSON, J
First
summons
[1]
The
applicant in the application for leave to appeal (the plaintiff -
Mashilo Lambrecths Architects) instituted action against the
excipients (the defendants) for payment of interest which allegedly
accrued as a result of the failure of the Department of Public
Works,
Roads & Transport – “the Department”). I will
continue to refer to the parties as the “plaintiff”
and
the “defendant”.
[2]
On 4 May
2015 Preller, J ordered the defendants to pay the amounts owned in
terms of three invoices. The said order –
attached to the
Particulars of Claim as “Annexure A” - reads as follows:
“
1.
First and second respondents [the defendants in this application] are
hereby jointly and severally, the one complying the other
to be
absolved, to pay invoices number 546A, 546BB and 593 which the
applicant [Mashilo Lambrechts Architects] rendered to the
first and
second respondents for professional services rendered to the first
and second respondents.
2.
Costs of this application.”
[3]
Preller, J
did not order the defendants to pay any interest in respect of the
three invoices
.
[4]
The
defendants paid the amounts (R1 682 592.44) in compliance
with the court order in July 2015 (approximately 2 months
after that
order) and in compliance with the amounts claimed in terms of the
three invoices.
Second
summons
[5]
The
plaintiff now, for the second time and in terms of a further summons,
instituted action against the defendants for payment of
interest
which allegedly accrued as a result of the defendant’s failure
to timely pay the three invoices which formed the
subject matter of
the order made by Preller, J. The plaintiff now claims that, because
the Department defaulted in making timeous
payment of the three
invoices in terms of the contract between the parties, they are now
entitled to
mora
interest. In essence the plaintiff claims that they are entitled to
institute a further summons to claim the interest payable on
the
amount that was awarded to them in terms of the order of Preller, J.
In the Particulars of Claim (against which the defendants
excepted),
the plaintiff records that it had obtained an order against the
Department for payment in respect of the three invoices
(referred to
in the order) but that the defendants were obliged to make payment
within 14 days after the rendering of the invoice
by the plaintiff.
In paragraph 6.3 the following is now claimed:
“
In
the premises therefore, Defendant became liable to pay the Plaintiff
more
interest at a rate as is prescribed by the Prescribed Rate of
Interest Act, 55 of 1957, as from the date of the default…”
[6]
The
defendants excepted against the Particulars of Claim and submitted
that any
mora
interest payable by the defendants to the plaintiff was a remedy that
was available to the plaintiff in respect of the defendants’
then failure to effect timeous payment of the amount due. That remedy
was available at the time when the first summons was instituted.
The
claim for payment in terms of the first summons and the claim for
mora
interest in terms of the second summons thus form part of one cause
of action which is the cause of action that served before Preller,
J.
The plaintiff was therefore, according to the defendants, compelled
to pursue all its claims in the proceedings which led to
the order
granted by Preller, J.
[7]
This court
agreed with the defendants and made the following order:
(i)
The
defendants’ exception succeeds.
(ii)
The
plaintiff is afforded a period of twenty days from the date of this
order to amend its particulars of claim, if so advised.
(iii)
The
plaintiff to pay the costs.
[8]
The
plaintiff filed an application for leave to appeal arguing that there
exists a reasonable possibility that a different court
might come to
a different finding than the one this court arrived at.
[9]
Counsel on
behalf of the plaintiff submitted that the claim of interest is a
distinct and self-contained claim with reference to,
inter
alia
,
the following two cases
.
Dunn v Road Accident Fund
[1]
and
Wedge
Steel (Pty) Ltd v Wepener
.
[2]
Neither of these cases assists the plaintiff. In
Dunn
the issue before the Court was interest on a judgment debt. The
bone of contention in those proceedings was the date from
which
interests had to be calculated: Was it from the date of judgment or
was it from the date of payment of the lump sum due to
the applicant
in terms of the judgment order. The issue relating to interests on a
judgment debt is thus vastly different from
what is in issue in this
matter. In
Wedge
Steel
the court held in the context of a provisional sentence claim that
the liquidity of a claim for interests in provisional sentence
proceedings had to be determined apart from the determination of the
liquidity of the principal debt. In
Wedge
the court was in a position to grant provisional sentence in respect
of the capital sum as that constituted a liquid document.
However, in
respect of the claim for interests on the capital sum, the court in
Wedge
had reservations in respect of the certificates that were issued as
to the dates on which the defendant’s indebtedness arose.
Because of this uncertainty, the court in
Wedge
was not satisfied that the interest calculation was objective nor
that the certificate established its accuracy. In those
circumstances,
the court postponed the proceedings for provisional
sentence on the interest adjunct to the capital to allow the
plaintiff to furnish
certain dates to the court necessary in order to
determine the interest calculation. The facts and legal issue in the
present matter
differ vastly from what was before the court in
Wedge
Steel
.
[10]
Returning
to the present matter: The question which arises in this matter is
whether the plaintiff is entitled to institute the
present
proceedings if regard is had to the order previously made by Preller,
J. In this regard counsel on behalf of the defendants
submitted that
a plaintiff may only claim damages once and for all in one action
based on a single cause of action and which flow
from that cause of
action. In support of this contention, the court was referred to the
decision in
Custom
Credit Corporation (Pty) Ltd v Shembe
[3]
where the court said:
“
It is accordingly not a matter
for surprise that the learned Judge
a
quo
was unable to find any
precedent for such a procedure where the 'double-barrelled' remedy
had been adopted by a plaintiff. The
reason or this is not far
to seek. The law requires a party with a single cause of action to
claim in one and the same action
whatever remedies the law accords
him upon such cause. This is the
ratio
underlying the rule that, if a cause of action has previously been
finally litigated between parties, then a subsequent attempt
by the
one to proceed against the other on the same cause for the same
relief can be met by an
exceptio
rei judicatae vel litis finitae
.
The reason for this rule is given by
Voet
,
44.2.1, (
Gane's
translation, vol 6, p. 553) as being
'to prevent inextricable difficulties
arising from discordant or perhaps mutually contradictory decisions
due to the same suit being
aired more than once in different judicial
proceedings'.
This rule is part of the very
foundation of our law and is of equal application to the criminal law
- in support of a plea of
autrefois
acquit
(see, e.g.,
Rex
v Manasewitz
,
1933 AD 165
at pp. 168, 176, 184 - 187) - as it is to civil claims for damages
resulting from negligent acts (see, e.g.,
Cape
Town Council v Jacobs
,
1917
AD 615
at p. 620;
Oslo Land
Co. Ltd
. v
The
Union Government
,
1938 AD
584
at p. 591) and to claims arising out of a breach of contract
(see, e.g., Kantor v Welldone Upholsterers,
1944 CPD 388
at p. 391;
Boshoff v Union Government
,
1932 t.p.d. 345). The rule has its origin in considerations of public
policy which require that there should be a term set to
litigation
and that an accused or a defendant should not be twice harassed upon
the same cause.”
[11]
In
amplification counsel on behalf of the defendants submitted that this
means that, in a claim for damages arising from the breach
of
contract, a plaintiff may claim damages for all the damage flowing
from the cause of action but should do so in a single action.
Such a
party may not bring a further action for any further damages he or
she may discover after the date when he or she obtained
judgment. The
rationale for this rule is explained by the court in
Symington
and Others v Pretoria -Oos Privaat Hospitaal Bedryfs (Pty) Ltd
[4]
“
[26]… I think this
assumption was fairly made. It would be in accordance with the
so-called 'once and for all' rule.
This rule is based on
the principle that the law requires a party with a single cause
of action to claim in one and the same
action whatever remedies the
law presents upon such cause. Its purpose is to prevent a
multiplicity of actions based upon a single
cause of action and to
ensure that there is an end to litigation. As explained by Corbett JA
in
Evins v Shield
B
Insurance Co
Ltd
1980
(2) SA 814
(A)
at
835 the effect of the rule on claims for damages, both in contract
and in delict, is that a plaintiff is generally required to
claim in
one action all damages, both already sustained and prospective,
flowing from the same cause of action.”
[12]
The
defendants further relied on
Janse
Van Rensburg and Others NNO v Steenkamp and Another; Janse van
Rensburg and Others NNO v Myburgh and Others
[5]
where the court explained the application of the “once and for
all” rule as follows:
‘
[27] The scope of the 'once and
for all' rule was said in the
National
Sorghum
case at 241D - E to require that all claims generated by the same
cause of action be instituted in one action. As I have already
found
that the respective sections do not create the same cause of action,
even in the extended sense, it is difficult to justify
the
applicability of the rule to the facts of these appeals was, however,
persuaded by a dictum from
Henderson
v Henderson
[1843] EngR 917
;
(1843) 3 Hare
100
([1843 -
1860] All ER Rep 378)
at 114 - 115 (at 381 - 382 All ER)
(and the full court in case No 18109/2005 agreed with him), as
follows:
'In
trying this question I believe I state the rule of the court
correctly when I say that, where a given matter becomes the subject
of litigation in, and of adjudication by, a court of competent
jurisdiction, the court requires the parties to that litigation
to
bring forward their whole case, and will not (except under special
circumstances) permit the same parties to open the same subject
of
litigation in respect of matter which might have been brought forward
as part of the subject in contest, but which was not brought
forward,
only because they have, from negligence, inadvertence, or even
accident, omitted part of their case. The plea of
res judicata
applies, except in special cases, not only to points upon which the
court was actually required by the parties to
form an opinion and
pronounce a judgment, but to every point which properly belonged to
the subject of litigation, and which the
parties, exercising
reasonable diligence, might have brought forward at that time.'
[28] Murphy J expressed the view (in
concurrence with that of Blignaut J in
Consol
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another
(2)
2005 (6) SA 23
(C)
([2004]
1 All SA 1)
at 46H) that 'the Henderson principle' is not in
conflict with the approach of Botha JA in
Kommissaris
van Binnelandse Inkomste v Absa Bank Bpk
(supra) and that 'logic and equity will justify its application in
appropriate cases'. While that may be so, I think that
any such
application must depend on an understanding of its true foundations.
[29] In
Arnold v National
Westminster Bank plc
[1991] 3 All ER 41
(HL) at 48j Lord Keith
pointed out that, although
Henderson
's was a case of action
estoppel, the statement of the law has been held to be applicable
also to issue estoppel. The learned
Law Lord had earlier referred (at
48e) to
Brisbane City Council v Attorney-General for Queensland
[1978] 3 All ER 30
(PC) ([1979] AC 411) at 35 - 36 (at 425 AC), where
Lord Wilberforce said:
'The second defence is one of
res
judicata
. There has, of
course, been no actual decision in litigation between these
parties as to the issue involved in the present
case, but the
appellants invoke this defence in its wider sense, according to which
a party may be shut out from raising ina subsequent
action an issue
which he could, and should, have raised in earlier proceedings.
The classic statement of this doctrine is
contained in the judgment
of Wigram VC in
Henderson v
Henderson
[1843] EngR 917
;
(1843) 3 Hare
100
, [1843 -
60] All ER Rep 378
and its existence has been reaffirmed
by this Board in
Hoystead v
Taxation Comr
[1926] AC
155
,
[1925] All ER Rep 56.
A recent application of it is to be found
in the decision of the Board in
Yat
Tung Co v Dao Heng Bank
[1975] AC 581.
It was, in the judgment of the Board, there
described in these words (at 590): ". . . there is a wider sense
in which
the doctrine may be appealed to, so that it becomes an abuse
of process to raise in subsequent proceedings matters which could and
therefore should have been litigated in earlier proceedings. This
reference to "abuse of process" had previously
been
made in
Greenhalgh v Mallard
[1947] 2 All ER 255
at 257 per Somervell LJ, and their Lordships
endorse it. This is the true basis of the doctrine and it ought only
to be applied
when the facts are such as to amount to an abuse,
otherwise there is a danger of a party being shut out from bringing
forward a
genuine subject of litigation.'”
[13]
Counsel on
behalf of the plaintiff took issue with the defendants’
reliance on the “once and for all rule”. More
in
particular it did so on the basis that the defendants failed to refer
to the following pivotal part in the
Van
Rensburg-
decision:
[6]
“
[30]… But what is to be
noted from both the
Henderson
and
Brisbane City
Council
cases is the
additional emphasis on the facts of each matter, for how else should
a court determine whether the conduct of
a party has reached the
level of being an abuse? That being so it is for the party who relies
on the application of the rule pertinently
to plead such reliance and
lay a foundation in fact which would enable the opposing parties to
deal with such reliance.”
[14]
It was
further submitted on behalf of the plaintiff that should the
defendants wish to rely on the once and for all rule, it had
to plead
the reliance and lay a foundation in fact which would enable the
respondent to deal with such reliance. Counsel submitted
that the
defendants are relying on facts outside of the allegations of the
current Particulars of Claim.
[15]
I fail to
see how this submission and the quoted passage from the
Van
Rensburg
judgment relied upon by the plaintiff assist the plaintiff in this
matter. The plaintiff relies on the terms of the letter of
appointment dated 28 March 2002 and in terms of which the defendants
were obliged to make payments to the plaintiff within 14 days
after
the rendering of the invoice by the plaintiff. This cause of action
formed the basis of the proceedings which culminated
in an order
granted by Preller, J. In my view this matter falls squarely within
the ambit of the “once and for all rule”
in terms of
which it is required that all claims generated by the same cause of
action be instituted in one action. This the plaintiff
did not do.
[16]
The
upholding of an exception does not dispose of the plaintiff’s
action - it merely disposes of the pleading against which
the
exception was taken. The plaintiff was granted leave to amend its
pleadings.
[17]
I have
considered the submissions on behalf of the plaintiff in the
application for leave to appeal. I am not for the reasons set
out
hereinabove persuaded that the intended appeal has reasonable
prospects of success.
[18]
In the
event the following order is made:
The
application for leave to appeal is dismissed with costs.
AC BASSON
JUDGE OF THE HIGH
COURT
Appearances:
For
the plaintiff
:
Adv. P Sieberhagen
Instructed
by:
Du Toit, Swanepoel, Steyn
& Sprut Attorneys
For
the defendant:
Adv TP Krüger SC
Instructed
by
:
Adendorff Theron
Incorporated
[1]
2019 (1) SA 237 (KZD).
[2]
1991 (3) SA 444 (W).
[3]
1972 (3) SA 462
(A) at 471H-472D.
[4]
2005 (5) SA 550
(SCA) at para [26].
[5]
2010 (1) SA 649
(SCA) at para [27]-[29].
[6]
Supra
.