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[2008] ZASCA 74
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Lancino Financial Investments (Pty) Ltd v Bennet and Another (358/07) [2008] ZASCA 74; [2008] 4 All SA 220 (SCA) (30 May 2008)
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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
NOT REPORTABLE
Case number: 358/07
In
the matter between:
LANCINO FINANCIAL
INVESTMENT (PTY) LTD
...
FIRST APPELLANT
J H HATTINGH
...
SECOND APPELLANT
and
F J BENNET
...
FIRST RESPONDENT
MAJESTIC SILVER
TRADING 94 (PTY) LTD
...
SECOND RESPONDENT
CORAM
:
HARMS ADP, NUGENT, HEHER, VAN HEERDEN JJA
et
HURT
AJA
HEARD
:
19 MAY 2008
DELIVERED
:
30 MAY 2008
Summary:
Pleading
â Exception upheld â Almost invariable practice for court to give
pleader opportunity to amend - Order for costs â
Where separate
orders for costs made for separate aspects of the hearing, order must
indicate to taxing master how costs are to be
apportioned.
Neutral
citation:
Lancino
Financial Investments (Pty) Ltd v F J Bennet
(358/2007)
[2008] ZASCA 74
(30 MAY
2008)
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
HURT
AJA
/
HURT AJA
:
[1] The appellants
instituted action against the respondents in the High Court of the
High Court Pretoria for an order for specific
performance of an
executory contract, and in the alternative, for cancellation of the
contract and damages. There was a second alternative
claim based on
enrichment. The first respondent excepted to the claims and the court
upheld the exceptions in respect of the main
and first alternative
claims. An order was granted in the following terms: -
'1. That the exceptions
in regard to claim 1 and also claim 2 in the alternative are upheld,
with costs.
2. That claim 1 and claim
2 in the alternative are both dismissed with costs.
3. That the plaintiffs
both or jointly or severally, the one paying the other to be
absolved, are directed to pay the aforesaid costs
mentioned in order
1 and order 2 herein above, which costs shall include the costs of
senior counsel in both orders.
4. That the exception in
regard to the alternative claim 3 is dismissed with costs, which
costs shall include the costs of senior
junior counsel.'
The
appellants appeal, with leave of the court
a
quo,
against
the orders in paragraphs 1, 2 and 3. I will refer to the parties by
their designations in the court
a
quo
.
[2] The
particulars of claim alleged that, in December 2003, the plaintiffs
and the first defendant concluded a contract (described
as a
'samewerkingskontrak') concerning,
inter
alia
,
the development of a township on a property (referred to as 'plot
62') owned by the first defendant. (There were other aspects of
co-operation which formed the subject matter of the agreement, but
they are not directly relevant to this judgment.) In regard to
this
development, the plaintiffs pleaded that: -
â
7.3
Die Eerste Eiser en die Eerste Verweerder sal saamwerk om Hoewe 62 as
'n dorp te ontwikkel en die erwe te verkoop, soos volg:
7.3.1
Die Eerste Verweerder sal die Eerste Eiser magtig om aansoek vir
dorpstigting op Hoewe 62 te doen.
7.3.2
Die eerste Eiser sal alle kostes en uitgawes wat aan die aansoek om
dorpstigting verbonde is, betaal.
7.3.3
Indien die aansoek om dorpstigting suksesvol sou wees, sal â
(a)
die Eerste Eiser alle handelinge verrig wat nodig is om die dorp op
Hoewe 62 te stig;
(b)
Die Eerste Eiser alle kostes wat aan die stigting van die dorp
verbonde is, insluitend die installasie van grootmaat- en interne
dienste, betaal; en
(c)
Die betrokke vaste eiendom aan 'n nuwe maatskappy oorgedra word
waarvan die Eerste Eiser en die Eerste Verweerder elkeen 50% van
die
aandele sal hou, en waarvan die Tweede Eiser en die Eerste Verweerder
die alleen-direkteure sou wees.
7.3.4
Wanneer die dorpstigting voltooi is en die betrokke vaste eiendom in
die naam van die voormelde nuwe maatskappy geregistreer
is, sal die
erwe waaruit die dorp bestaan deur die Eerste Eiser bemark word,
ooreenkomstig verkoopkontrakte â
(a)
waarkragtens die verkoopprys van elkeen van die erwe aan die gemelde
nuwe maatskappy betaalbaar sou wees; en
(b)
wat voorts aan 'n maatksappy bekend as Sencon 1 (Edms) Bpk die
eksklusiewe reg sal gee om wonings op die erwe op te rig en wins
uit
die oprigting van die wonings te maak; en
(c)
waarkragtens die Eerste Eiser geregtig sal wees om die
aktevervaardiger wat die registrasie van transport aan die kopers
moet
hanteer, te nomineer, en sal toesien dat sodanige registrasie
plaasvind.
7.3.5
Die koopprys wat deur die voormelde nuwe maatskappy aan die Eerste
Verweerder betaalbaar sal wees vir die verkryging van die
betrokke
vaste eiendom, word bereken as een helfte van die som van die netto
verkoopprys van elke erf aan die uiteindelike kopers
daarvan, welke
bedrag deur die nuwe maatskappy aan die Eerste Verweerder afbetaal
sal word deur middel van die betaling van die ooreenstemmende
gedeelte by registrasie van transport van die erwe in die naam van
die onderskeie kopers daarvan.
7.3.6
Wanneer die geheel van die bedrag wat aan die Eerste Verweerder
betaalbaar is, oorbetaal is, dra die Eerste Verweerder sy 50%
aandeelhouding in die nuwe maatskappy aan die Eerste Eiser oor, sodat
die Eerste Eiser die alleen-aandeelhouer van die nuwe maatskappy
word, en die Eerste Verweerder bedank voorts as direkteur van die
nuwe maatskappy. Die nuwe maatskappy sou dan geen verdere verpligting
gehad het nie.'
[3] To complete the
relevant picture, it is alleged that the plaintiffs had discharged
all those obligations which had fallen due
in terms of the contract
up to 6 July 2005. However, on that date, the first defendant
transferred plot 62 to the second defendant
pursuant to a contract of
sale. It is alleged that this act constituted a repudiation of the
contract by the first defendant, which
the plaintiff is unwilling to
accept. The plaintiff accordingly claims an order for specific
performance of the contract and demands
that the first defendant be
ordered to perform all acts necessary to allow the first plaintiff to
complete the application for approval
of the township development,
and, upon the approval being granted, to put plot 62 at the
plaintiffs' disposal to enable the remainder
of the contract to be
carried out. As an alternative claim (in the event of the court
declining to grant the decree of specific performance)
the plaintiffs
claim cancellation of the contract and damages amounting to
approximately R17 million. A large portion of this latter
claim
comprises damages allegedly suffered by a company called Sencon (Pty)
Ltd (the company referred to in paragraph 7.3.5) which,
the
plaintiffs allege, has suffered a loss as a result of being deprived
of the opportunity of the building that houses on plot 62.
The
plaintiffs allege that the second plaintiff has taken cession of
Sencon's claim in this regard.
[4] The
first defendant excepted to the particulars of claim on three
grounds,
viz
-
First, the agreement
provided for the transfer of plot 62 to the new company for a
purchase price ('koopprys') equivalent to half
the ultimate total
purchase price of the erven in the township. It purported,
accordingly, to be an oral agreement for the alienation
of land which
was invalid for want of compliance with
section 2(1)
of the
Alienation of Land Act 68 of 1981
.
Second, the
stipulation in paragraph 7.3.4 relating to the securing, for Sencon,
of the right to build houses on the erven was a
stipulatio
alteri
and,
in the absence of an averment to the effect that Sencon had accepted
the relevant benefit, it would have acquired no rights under
the
agreement and could therefore not have had a claim for damages which
it could cede to the plaintiff.
The third exception,
which failed, need not be considered further, save in relation to the
order for costs.
[5] Counsel
for the appellants, in his heads of argument, doggedly defended his
pleading against both exceptions. However, almost
at the inception of
his argument before us, he conceded that the averments in connection
with the terms of the agreement had been
neither accurately nor
clearly pleaded. He also conceded that the exception to the
alternative claim for damages had been correctly
upheld. In view of
these concessions it is not necessary to decide whether the first two
exceptions were properly upheld. Having
made the concessions, counsel
for the appellant shifted the thrust of his argument to the issue of
whether the order dismissing the
main and alternative claims had been
correctly made. In this he found himself on firmer ground. It is
apparent, if only from the
plethora of adjectives with which the
pleader found it necessary to introduce paragraph 7, that clarity has
been sacrificed for breadth
and, in all probability, so has accuracy.
The contract (assuming that a contract was, indeed, concluded) was
plainly a complicated
one. It appears that the creation of a form of
partnership was intended and that the first defendant's contribution
was to centre
around plot 62. One must accept that more attention to
detail and a careful consideration of precisely how the parties
intended to
put their agreement into effect may enable the
plaintiffs, through their counsel, to formulate their claims in
clearer terms. Counsel
for the first defendant submitted that the
plaintiffs had ample opportunity to amend their particulars of claim
before judgment and,
having failed to do so, cannot now seek to
rescue their position by amendment. That contention flies in the face
of what this court
has referred to as 'the invariable practice' when
an exception is upheld. In
Group
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993
(2) SA 593
(A) at pp 602C to 604I, Corbett CJ set out the reasons for
not resorting to the 'drastic remedy' of dismissing a plaintiff's
claim
in these circumstances, and in
Rowe
v Rowe
[1997] ZASCA 54
;
1997
(4) SA 160
(SCA) at p 167, Hefer JA said :
'. . . it is doubtful
whether this established practice brooks of any departure, and . . .
in the rare cases in which a departure
may perhaps be permissible,
one expects to find the reasons in the Court's judgment.'
No such
reasons were given by the judge
a
quo
.
[6] I accordingly
consider that the appeal against the upholding of the exceptions
should be dismissed, but that the appeal against
the dismissal of the
plaintiffs' action should be upheld.
[7] That
leaves only the issues concerning costs. It is necessary to comment
on the orders for costs which the judge
a
quo
made
in paragraphs 1, 2 and 4 of his order. Where a court decides to make
separate costs orders in relation to separate aspects of
a hearing,
it is incumbent upon the judge, in the order, at least to give the
taxing master guidance as to what proportion of the
total time each
such aspect occupied, for without that information, the taxing master
will have no basis on which to make his allocation.
The costs orders
made in paragraphs 1, 2 and 4 are accordingly defective in this
regard. Moreover, it seems from the judgment that
the exception to
the second alternative claim based on enrichment could hardly have
occupied a substantial portion of the hearing.
In those
circumstances, in any event (considering that the first defendant was
plainly the successful party) it is doubtful whether
the learned
judge should have exercised his discretion to make a separate costs
order. However, absent a cross-appeal, the costs
order cannot be
varied in favour of the respondent. Although the plaintiffs have been
successful on appeal in relation to the dismissal
of their claims, in
view of the concessions (wisely) made by their counsel as to the
exceptions themselves, I consider that the fairest
result would be to
make no order as to the costs of the appeal.
[8] (a) The appeal is
allowed in part with no order as to costs;
(b) The
order of the court
a
quo
is
altered by the insertion of §4:
â
4.
The plaintiffs are given leave to amend their particulars of claim,
the notice of intention to amend in terms of
Rule 28
to be delivered
within 20 days of the date of this judgment.â
â¦â¦â¦â¦â¦â¦â¦â¦
.
N V HURT
ACTING JUDGE OF APPEAL
Concur
:
HARMS ADP
NUGENT JA
HEHER JA
VAN HEERDEN JA