About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 646
|
|
Sebenza Shipping and Forwarding (Pty) Ltd v Passenger Rail Agency of South Africa Society Limited (43909/2016) [2018] ZAGPJHC 646 (21 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 43909/2016
HELD
IN: JOHANNESBURG
In
the matter between:
SEBENZA
SHIPPING AND FORWARDING (PTY)
LTD
Applicant
And
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
SOCIETY
LIMITED
Respondent
JUDGMENT
AJ
Wanless
PROCEEDINGS
ON 21 NOVEMBER 2018:
COURT
CLERK
: Calling the matter
...(inaudible)
Sebenza Shipping and Forwarding and Passenger Rail Agency.
LEGAL
REPRESENTATIVE
: As it please your Lordship I appear for the
Applicant.
COURT
:
Yes.
LEGAL
REPRESENTATIVE
: On behalf of the Respondent my Lord.
COURT
:
Yes. The Applicant in this matter is Sebenza Shipping and
Forwarding (Pty) Ltd and the Respondent is the Passenger Rail
Agency
Society Limited. The history of this matter is as follows:
“
The
Applicant has applied to set aside, beg your pardon just for
clarification Sebenza Shipping and Forwarding (Pty) Ltd will
hereafter
be referred to as the Applicant and Passenger Rail Agency
Society Limited will be referred to as the Respondent. In this
matter the Applicant has applied to set aside the notice of intention
to enter the principal case filed pursuant to Rule 8, sub-rule
11 by
the Respondent as a irregular step and further that the plea and
counter-claim, more correctly claim-in- reconvention filed
by the
Respondent be declared an irregular step; ancillary relief and costs
de bonis propriis
. The Applicant instituted provisional
sentence proceedings based on a letter purporting to acknowledge the
indebtedness of
the Respondent to the Applicant. Provisional
sentence was granted against the Respondent in favour of the
Applicant on the
28
th
of November 2017. In terms of
Rule 8.11 a notice of intention to enter the principal case shall be
filed within the two months
from the date of granting of provisional
sentence. The two month period in the premises expired on the
28
th
January 2018. The notice of intention to enter
the principal case was filed on the 12
th
of June 2018 and
the plea and counter-claim on the 25
th
of June 2018.
The notice to remove the cause of complaint was filed on the 14
th
of June 2018. The Respondent opposes the application on the
basis that the Applicant consented to the Respondent entering
into
the principal case. The Respondent also filed a
counter-application in which the Respondent seeks that this Court
condone
the late filing of the notice to enter the principal case in
the event of this Court finding that the Applicant did not consent.
With regard to the issue of consent the following facts are common
cause on the application papers before this Court. On
the 1
st
of December 2017, the Applicant addressed the issue of security
de
restituendo
and stated
inter alia
that it proposed that
the capital, interest and costs be paid into their Attorney’s
trust account where it would be held
pending the finalization of the
principal case in the event of the Respondent pursuing same.
The Respondent filed a notice
of application for leave to appeal
against the provisional sentence on the 18
th
of December
2017. The application for leave to appeal was dismissed on the
8
th
of February 2018. On the 8
th
of
February 2018 the Applicant’s Attorneys via e-mail invited the
Respondent to enter the principal case and confirmed that
the
security would be furnished as per their letter of the 5
th
,
sorry, as per their letter of the 1
st
of December 2018.
A petition to appeal to the Supreme Court of Appeal was filed on the
7
th
of May 2018 and dismissed on the 17
th
of
May 2018. On the 17
th
of May 2018 the Attorney for
the Applicant demanded payment. On the 21
st
of May
2018 the Respondent’s Attorney replied and stated that payment
should be made on the basis of the provisions of Rule
18.10 and
should be made on the basis that their client was entitled to enter
the principal case. On the 30
th
of May 2018 after
certain correspondence had passed between the respective Attorneys
regarding the calculation of the outstanding
amount, the Respondent’s
Attorney stated
inter alia
that the monies once received by
the Applicant’s Attorneys would be invested in their trust
account in terms of Section 78
(2A) and requested the Applicant’s
Attorneys to confirm the same. On the 31
st
of May
2018 the Applicant’s Attorneys confirmed that the provisional
sentence amount would be invested as per the undertaking
of the 1
st
and 7
th
of December 2017 and as stated above. The
undertaking was that these monies would be held in trust pending the
determination of
the principal case. A letter from the
Respondent’s Attorneys on the 8
th
of June 2018
records that the payment has been made, or had been made and once
confirmation had been received from the Applicant
of the receipt of
those funds the Respondent would enter the principal case. On
the 12
th
of June 2018 the Attorneys for the Applicant
recorded that the monies were received and invested but went on to
say that this should
not be construed as an agreement that the
Respondent was entitled to enter the principal case. In
paragraph 4.46 of the founding
affidavit the Applicant explains away
the fact that an agreement was entered into on the basis that the
Applicant’s Attorney
was “under pressure” and the
agreement was that she would invest the monies and to treat same as
“if the security
de restituendo is valid pending the
determination of whether the said security is valid”. It
is submitted on behalf
of the Respondent that it is clear that the
money was invested so that the Respondent would be entitled to enter
the principal
case and that the Attorney’s suggestion to the
contrary stands to be rejected. On the alternative leg of the
Respondent’s
argument and one which relates to the aspect of
condonation it is or it was held in the matter of
Mahabro
Investment (Pty) Limited vs Kara, 1980(2) SA 772,
a decision of
the then Durban and Coast Local Division, the following and I need,
for these purposes read only from the head note
of that case:
“
Provisional
sentence-entry into principal case - notice of intention to do so not
served within period prescribed by Rule of Court
8 (11).”
“
Provisional
judgment accordingly transformed into a final one but what rules can
do they can undo. Rule 27 caters as a matter
of law for a
default in compliance with Rule 8 (11). Court has the power if
the Defendant makes out a case for the relief
on the merits to extend
the period, revoke the final judgment and thus reinstate the
provisional one. The Court in that matter
held
inter alia
that unlike the usual kind the final judgment for which Rule of
Court 8 (11) provides is neither a jurisdiction decree in form nor
a
jurisdiction product in substance. It is nothing more than a
creature of the rules. As such it is governed entirely
by
them. They fix a time limit for entry into the principal case.
As an automatic consequence of default they then transform
the
provisional judgment into a final one but what the rules can do they
can undo and Rule 27 caters as a matter of law for a default
in
compliance with Rule 8 (11). On the basis of
inter alia
that decision it is submitted by the Respondent that this Court has
the power to condone the failure to deliver a notice of intention
to
enter into the principal case and thereafter to plea within the two
month period. It is important to note at this stage
that in
addition to the aforegoing, Rule 27 of the Uniform Rule of the Court
clearly provides for the fact that the parties can
agree to extend
these time limits. On the basis of this Court holding then that
there was no agreement that the period of
two months would be
extended between the parties, the Respondent asks for condonation and
relief in the form of being entitled
to enter into the principal
case. The grounds set out by the Respondent in respect of that
condonation are as follows:
“
a.
That the Respondent on the advice of it’s Attorney that the
application for leave to appeal the proceedings suspended execution
did not enter into the principal case prior to the petition to the
Supreme Court of Appeal.
b.
The Attorneys of the Respondent gave that advice on the authority of
the full bench decision of
Maketha versus Lyon 1998(4) SA 143,
a decision of the erstwhile Witwatersrand Local Division, that the
effect of the provisional sentence was final. This advice
obviously had not been given on the facts of that particular case as
read with the present matter before this Court. Therefore
having regard to the provisions of Section 18 of the Superior Court
Act 10 of 2013 the advice of the Respondent’s Attorneys
was
that the effect of the provisional sentence pending the application
for leave to appeal was suspended.
c.
In
Maketha versus Lyon (supra)
the full bench found that the
decision of the Court that the authenticity of the signature to the
liquid document was final in
effect.
d.
The Court of first instance in the current matter, that is the matter
presently before this Court, found against the Respondent
and held
that the person who signed the acknowledgement of debt was authorised
to do so. More correctly, it dismissed or disregarded
the Defence
raised by the Respondent at that stage of the proceedings that the
signatory to the acknowledgment of debt was not
so authorised.
e.
In the premises, the advice of the Respondent’s Attorneys was
that the
Maketha
judgment supported the advice given and for
this reason the Respondent did not enter into the principal case at
an earlier stage
or did not take the necessary steps to enter into
the principal case within the two month period as provided for by the
Rules of
Court.
f.
However, in an unreported judgement of
Chater v Meyer, 2010 case
no: A881/07
, a full bench decision of the Gauteng Provincial
Division,
Maketha
had been held to be wrong. This is on
the application papers before the Court and upon which the Respondent
relies. This only
came to the attention of the Respondent or more
correctly, the Respondent’s Legal Representatives, when an
answering affidavit
was prepared on behalf of the Respondent in the
present proceedings.
g.
It is submitted by the Respondent that it is also apparent from the
correspondence exchanged between them that both parties were
aware at
all times that the Respondent intended to defend the principal case
and that both parties had reconciled themselves to
that fact.
h.
Insofar as the defence, and this obviously being a criteria in
respect of the claim of the Applicant is concerned, the Respondent
relies on three defences:
1.
That Vermeulen, the person who signed the acknowledgement of debt,
was not authorised to sign same.
2.
That the claim is not competent having regard to underlying causa,
that is, the written agreement entered into between the parties;
and
3.
That the Respondent has a counter-claim, more correctly a
claim-in-reconvention.
i.
The submission is made on behalf of the Respondent that the
acknowledgment of debt was signed by a General Manager.
j.
It is clear that the Respondent has pleaded that a General Manager is
not authorised to bind the Respondent in the amount he
purported to
that being R6 218 223.86.
k.
In support thereof the Respondent refers to a circular which circular
restricts the authority of a General Manager to R1 000
000.00.
l.
It is pointed out on behalf of the Respondent that in granting
provisional sentence his Lordship Mr Justice Wepener found that
the
circular was restricted to sales.
m.
In this respect it would, it was submitted, be an issue in any
subsequent trial, on the case put forward by the Respondent, that
Mr
Justice Wepener had erred and that another Court might come to a
different conclusion. In this regard the Respondent relied
on certain
sections or portions of that agreement which supported it’s
case. This essentially lead to an interpretation
of the
agreement and it is the Respondent’s case that if it is
entitled to enter into the principal case another Court may
well
interpret the agreement between the parties differently to the
interpretation provided for in the first instance when provisional
sentence was granted by Mr Justice Wepener. The Respondent then
also relied on the question of the fact that it is not, or
cannot
allegedly be liable for outstanding storage costs since, once again
relying on the agreement, storage costs are limited
to 60 days only.
Therefore the Respondent will maintain that it is not liable for
payment of storage charges beyond the 60 day
period agreed to in the
contract and further that the contract does not provide for a
variation in price”.
“
The
counter-claim referred to earlier in this judgment and which the
Respondent wishes to ultimately rely is essentially in terms
of an
overpayment in an amount of R9 123 826.79. Finally, it is
submitted on behalf of the Respondent that if condonation
is granted
to the Respondent to enter into the principal case that there can be
no prejudice to the Applicant. It is trite
law that when
considering any issues of condonation it is only necessary for a
party seeking that condonation to set out triable
issues in order to
show that a particular party has a
bona fida
defence and thus
satisfy that part of the inquiry. At this stage it cannot be
said that any of the defences, (and this would
also include the
counter-claim on the potential counter-claim of the Respondent)
raised by the Respondent and not
bona fides
within the correct
meaning thereof. In passing, it is important to note that the
Applicant relied heavily on the decision
of
Osman Spice Work CC v
Corporate International (Pty) Ltd, 2005(6) SA 494
, a decision
once again of the erstwhile Witwatersrand Local Division, as
authority for the fact that after the two month period
a provisional
sentence becomes a final judgment. Whilst this is undoubtedly,
as a general principle, true the case of
Osman (supra)
is
distinguishable from the present matter as it dealt with a case where
the Defendant did not make payment at all. On the
facts as set
out earlier in this judgment it is held that the Applicant did indeed
consent to the Respondent entering into the
principal case. Hence the
time limits prescribed therefore were extended, by consent, in terms
of Rule 27. Having received
the monies the attempt by the
Applicant’s Attorneys to shut the door on the Respondent cannot
be countenanced in any way.
Even if this Court is incorrect in this
regard, condonation should, clearly on the facts as set out herein
and with particular
regard to the defences set out by the Respondent,
be granted. The Respondent was not guilty of any wilful default
and has
raised
bona fida
defences to the Applicant’s
claim. The Applicant can suffer no prejudice if the Respondent is
allowed to enter the principal
case. With regard to the issue
of costs the Court finally determining the action in this matter will
be in a far better position
than this Court to adjudicate the true
merits of the application and counter-application. In the
premises I make the following
order:
1.
The Applicant’s application as set out in the notice of motion
at pages 7 to 11 inclusive of the application papers is
dismissed.
2.
The late filing by the Respondent of its notice of intention to enter
into the principal case under case number 43909/2016 is
condoned.
3.
The costs of the Applicant’s application and the Respondent’s
counter-application are reserved for the decision of
the Court
hearing the action under case number 43909/2016.
I
hand down that order.”
LEGAL
REPRESENTATIVE
: As the Court pleases.
LEGAL
REPRESENTATIVE
: As the Court pleases.
END
OF COURT PROCEEDINGS
_________________
B
Wanless
Acting
Judge of the High Court: Gauteng Local Division
For
the Appellant: Advocate TJ Magano
For
the Respondent: Advocate M Smit
Dates
of Hearing: 14 November 2018
Date
of Judgment: 21 November 2018