About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2018
>>
[2018] ZAKZPHC 5
|
|
CTP Limited t/a Amanzimtoti Printing & Publishing v D & V Safety Management and Another (AR 114/17) [2018] ZAKZPHC 5 (23 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Sitting
at DURBAN
Appeal
Case No: AR 114/17
Case
No. in court a quo: 19605/2011
In
the matter between
CTP
LIMITED T/A AMANZIMTOTI PRINTING & PUBLISHING
Appellant
and
D & V SAFETY
MANAGEMENT
First Respondent
BRAINWAVE PROJECTS
877 CC
Second Respondent
JUDGMENT
Delivered 23
February 2018
Order
1 The
appeal succeeds.
2 The
judgment by the court a quo is set aside.
3 The
first respondent is directed to pay the costs
of appeal.
Moodley J :
[1]
This is an appeal against a judgment upholding a plea that
that the subject matter of the application in terms of Rule 54(6) of
the Magistrates Court Act 32 of 1944 was
res judicata.
Factual Matrix
[2]
The appellant instituted an action in the Magistrates’
Court, Durban under case number 19605/2011 against the first
respondent
for the recovery of payment for advertising services
rendered by it to the first respondent. The appellant’s cause
of action
was the breach of an agreement concluded by the appellant
with first respondent, which was represented by one Caroline Naidoo,
who also signed the agreement on behalf of the first respondent.
[3]
The appellant’s attorney caused the summons to be served
on the first respondent, together with a Notice in terms of Rule 54
of the Rules of the Magistrate Courts Act which provides:
‘
54 Actions
by and against partners, a person carrying on business in a name or
style other than his or her own name, an unincorporated
company,
syndicate or association
1(a)
Any two or more persons claiming or being sued as co-partners may sue
or be sued
in the name of the firm of which such persons were
co-partners at the time of the accruing of the cause of action.
(b)
In any case referred to in paragraph (
a
) any party may by
notice require from the party so suing or sued a statement of the
names and places of residence of the persons
who were at the time of
the accruing of the cause of action co-partners in any such firm.
(2)
A party receiving a notice in terms of sub-rule(1)(
a
) shall,
within 10 days after receipt thereof, deliver the statement
required.’
[4]
The first respondent did not defend the action or respond to the
Rule
54 Notice. The appellant consequently sought default judgment as
prayed for in the summons, which was granted on 22 October
2014.
Execution of the judgment was attempted, but the attached goods were
released when an interpleader affidavit was filed.
[5]
The appellant then launched an application in terms of Rule 54
(6) (‘the first application’), which provides:
‘
When action
has been instituted by or against a firm or by or against a person
carrying on business in a name or style other than
his own name or by
or against an unincorporated company, syndicate or association in the
name of the firm or in such name or style
or in the name of the
company, syndicate or association, as the case may be, the court may
on the application of the other party
to the action made at any time
either before or after judgment on notice to a person alleged to be a
partner in such firm or the
person so carrying on business, or a
member of such company, syndicate or association, declare such person
to be a partner, the
person so carrying on business or a member, as
the case may be, and on the making of such order the provisions of
sub-rule (3)
shall apply as if the name of such person had been
declared in a statement delivered as provided in sub-rule (2).’
[6]
The first respondent opposed the first application and filed
an answering affidavit. In the replying affidavit file by the
appellant,
the deponent referred to the content of a tracing agent’s
report that had come to hand, which did not form part of the founding
affidavit. At the hearing of the first application on 3 March 2016,
the first respondent’s attorney raised a point
in limine
in
respect of the offending material in the replying affidavit.
[7]
Argument was then presented and the presiding magistrate
delivered judgment and granted an order upholding the point
in
limine
.
[8]
On 23 March 2016 the appellant launched a second application
in terms of Rule 54(6) (‘the second application’),
including
the allegations that were ruled offending in the previous
application. The first respondent opposed the second application,
raising
a plea of
res judicata
. The learned magistrate
presiding over the application ruled in favour of the first
respondent and dismissed the second application.
It is that judgment
that forms the subject of this appeal.
Res
Judicata
: relevant legal principles
[9]
The thrust of the judgment appealed against is premised on the
principle of ‘
res judicata‟,
which is well
established in our law.
[10]
In
Prinsloo
No and Others v Goldex 15 (Pty) Ltd and Another
[1]
Brand J held:
‘
[10]
The expression
'res iudicata'
literally means that the matter
has already been decided. The gist of the plea is that the matter or
question raised by the other
side had been finally adjudicated upon
in proceedings between the parties and that it therefore cannot be
raised again. According
to Voet 42.1.1, the
exceptio
was
available at common law if it were shown that the judgment in the
earlier case was given in a dispute between
the same parties
,
for the same relief on the same ground or on the same cause
(
idem
actor
,
idem res et eadem causa petendi
).’ (
my
emphasis).
[11]
The learned judge also warned that:
‘
[26]
……deviation from the threefold requirements of res
iudicata should not be allowed when it is likely to give rise
to
potentially unfair consequences in the subsequent proceedings. That,
I believe, is also consistent with the guarantee of a fair
hearing in
s 34 of our Constitution.’ (footnotes omitted)
[12]
In
Smith
v Porritt and Others
[2]
Scott JA confirmed that the common-law requirement that applied when
a defence of res judicata is raised, is that the relief claimed
and
the cause of action be the same (
eadem
res
and
eadem
petendi causa
)
in both the case in question and the earlier judgment.
[13]
Further
as pertinently pointed out in
Vleissentraal
v Dittmar
[3]
by Van Heerden R:
‘
Granting that
the dismissal of an application can have the effect of a final order,
the answer to the question whether a second
application, which in
substance is made with the object of obtaining the same relief as a
first dismissed application, is acceptable
depends not so much on the
form of the order given in the first application as on the dispute in
respect whereof the order is made.’
[14]
Van Heerden R found in the
Vleissentraal
case that the
magistrate did not consider the merits of the application for
rescission but dismissed it by reason of the fact that
the
application had not been timeously set down, and accordingly held
that the dismissal of the application was a final order in
regard to
the question whether the application was brought timeously, but not
in regard to any other issue.
The proceedings
in the court
a quo
[15]
I accordingly turn to the first application. A perusal of the
record is instructive as to the exact nature of the point taken
in
limine
, the legal issue before the court hearing the first
application and the relief granted, and therefore the relevant
portions deserve
to be quoted in full.
[16]
At the commencement of the proceedings, the first respondent’s
attorney Ms Subajan explains the point
in limine
taken by her
as follows:
Miss Subajan
:
…Our point in limine is that the applicant has filed its
answering affidavit and, in it, the applicant traverses new evidence
not cited in its founding affidavit. The applicant admits in its
answering affidavit that it has indeed traversed new evidence
and
invites the respondent to file a supplementary reply.
Now, the
respondent rejects the applicant’s answering affidavit and asks
that it be struck from the record on the basis that
the respondent
will be prejudiced in the conduct of its defence in, inter alia, the
following ways. Now averments have been made
by the applicant that
the new evidence now included in its answering (?) affidavit was not
available at the time that the founding
affidavit was filed.
…
They have
alleged that evidence and you can see from the dates on the annexures
that they were available at the time the founding
affidavit was
compiled. So there is no reason why it shouldn’t have been
included in the founding affidavit.
…
We submit
that the applicant’s application supported by its founding
affidavit is defective in that the reasons as traversed
in our
opposing affidavit, it does not establish a case on the merits for
the defendant and the respondent to be declared as one
and the same.
The applicant had
its opportunity to bring its application comprehensively and failed
to do so or, alternatively, chose not to do
so. The respondent,
whilst being afforded the opportunity by the applicants to file
supplementary papers, is aware that the rules,
in particular Rule 55,
do not allow for the filing of supplementary papers without the
express leave of the Court.‟
[4]
[17]
At the commencement of his address Mr Roland, who represented
the appellant asked the presiding magistrate, Ms Mewalal, whether he
should deal with the whole matter, to which she responded:
Court
:
No
just the point in limine. Obviously, if I rule on the point in
limine, depending which way I proceed, it may not be necessary
to
proceed to hear the arguments on the merits.
[5]
[18]
It is therefore apparent that Ms Mewalal was only determining
the issue of the new material in the replying affidavit objected to
by Ms Subajan. This is confirmed when Ms Mewalal later reiterated:
“
The point
in limine is that you have not done what should have been done in the
founding papers. You have tried to make out a case
in your replying
papers.‟
[6]
[19]
Mr
Roland then specifically addressed her on ‘the new evidence’
which he described as ‘evidence to confirm the
tracing agent’s
report.’
[7]
[20]
At the commencement of her judgment on the point
in limine
Ms Mewalal stated as follows:
Prior to the
consideration in terms of the merits of the matter is concerned, in
particular to the various affidavits that have
been filed in respect
of the application in this matter, the respondent, Brainwave Projects
877 CC, raised a point in limine essentially
to the effect that the
further affidavit of the applicant in this matter, which is described
as an answering affidavit, is in fact
irregular and contrary to the
requirements of the Rules and, as such, should be struck out.
The applicant in
the matter was given the opportunity to consider the point in
limine…‟
[8]
[21]
In the course of her judgment Ms Mewalal identified the
offending paragraphs dealing with the tracing agent’s report as
paragraphs
18, 19, 20 and 21, but proceeded to identify other
allegations in the replying affidavit which, in her view, should have
been in
the founding affidavit. But, although she moved out of the
ambit of the new material admitted by the appellant, she nevertheless
did not consider the merits of the application in doing so; her
deliberations were still related to whether these allegations ought
to have formed part of the founding affidavit. She then summed up by
stating :
“
All the
information that was relied upon in the answering affidavit by the
applicant was information that was available at the time
that the
founding affidavit was deposed to. So, to make that point clear, the
information that is contained in the answering affidavit
should have
been included in the founding affidavit by virtue of eh fact that
that information was readily available.
Sorry, I just
want to read out one more issue which is on page 15 of Rule 55:
“
As has
been pointed out, all the essential averments which the applicant
must allege must be in the founding affidavit in support
of his
application.
He
cannot supplement his case by adducing facts in his replying
affidavit which should have been in the original affidavit and,
if it
does so, such facts will, as a general rule, be struck out.”
…
Having
said that, it is clear to the Court that, as far as the answering
affidavit of the applicant is concerned, it was an irregular
procedure for the applicant to depose to issues which should have
been in his founding affidavit and accordingly the point in limine
raised by the respondent in this matter is
UPHELD
WITH COSTS
.
[9]
[22]
A more appropriate order would have been an order striking out the
offending paragraphs,
which would have pre-empted any ambiguity of
the effect of her order. Nevertheless, irrespective of the merits of
her reasoning,
it is clear that the import of Ms Mewalal’s
order related only to the issue of the new allegations in the
appellant’s
replying affidavit which, in her view, ought to
have been included in the founding affidavit, and it is on this issue
that she
found in favour of the first respondent. She did not
consider the merits of the first application in the light of the
relief sought
in terms of Rule 54(6), namely the declaration that the
second respondent was a proprietor of the first respondent when the
cause
arose. Therefore neither the cause of action on which she
adjudicated cannot be said to be the same as the cause of action
relied
on to found the Rule 54(6) application, nor was the relief
sought or granted the same as in the second application.
[23]
Consequently the appellant was at liberty to attempt to amend
his application, alternatively to launch a new application, as he
did.
[24]
In the
introduction to the Rule 51(1) response dated 24 November 2016
furnished by Magistrate AS Jansen Van Vuuren, who determined
the
second application, it is noted that the first respondent in raising
res judicata argued ‘that the applicant has traversed
the very
same facts as that of its Answering Affidavit in its previous
application’. Apart from the error of referring to
the replying
affidavit as an ‘answering affidavit’ being perpetuated,
this argument cannot found a proper resistance
to the relief sought
in the application: a mere traversing of the same facts is
insufficient.
[10]
[25]
What
was relevant is whether the cause of action is the same, and whether
the cause of action had been finally adjudicated on in
the previous
proceedings before Ms Mewalal, and the relief granted was effectively
the same as the relief subsequently sought in
the second application.
As stated in
Horowitz
V Brock And Others
[11]
the requisites of a valid defence of
res
judicata
in
Roman-Dutch law are that the matter adjudicated upon, on which the
defence relies, must have been for
the
same cause, between the same parties, and the same thing must have
been demanded. What Ms Subujan sought in the first application
was
the striking out of portions of the appellant’s replying
affidavit, which was neither the same as or fatal to the cause
of
action in the Rule 54(6) applications.
[26]
Therefore although the learned magistrate referred to the
relevant authorities on the principle of res judicata, the conclusion
reached is patently wrong:
„
The court
needed to decide whether Ms Mewalal‟s judgment was a final
judgment in the application to declare the respondent
the proprietor
of the defendant. Having considered Ms Mewalal‟s judgment the
court found that she did consider the merits
of the matter in the
first application, and by upholding the point in limine she gave a
final judgment on the merits. The court
found that the matter was
therefore res judicata.‟
[12]
[27]
In my view, had Ms Mewalal granted an order striking out the
offending portions of the replying affidavit in the first
application,
the appellant may have realised that the proper
procedure would be to withdraw the first application and then launch
the second
application in order to incorporate the relevant
allegations in his founding affidavit. It is noted that the first
application
was only withdrawn on 11 April 2017.
[28]
However as it stands this court must decide on the appeal
against the judgment on the second application, which I have already
found
to be incorrect.
[29]
In the premises, the following order is issued :
4 The
appeal succeeds.
5 The
judgment by the court a quo is set aside.
6 The
first respondent is directed to pay the
costs of appeal.
Moodley
J
Chetty
J
APPEARANCES
For
the Applicants
Advocate S L
Campbell
Instructed
by
MILLAR & REARDON ATTORNEYS
13th FLOOR, 85 ON
FIELD
85 FIELD (JOE SLOVO)
STREET DURBAN
TEL: (031) 304 2931
FAX: (031) 305 6680
REF:
06A045250/COLLS/KR
For
Respondents
Instructed
by
SUBAJAN & COMPANY
REF: KASSY
SUBAJAN/N18
TEL: (031) 464 8329
FAX: 086 775 1191
C/O RODNEY REDDY &
ASSOCIATES
RUCHIDA HOUSE
26/28 CYPRESS AVENUE
STAMFORDHILL
DURBAN
[1]
2014 (5) SA 297 (SCA)
[2]
2008
(6) SA 303 (SCA)
at page 308
[3]
1980 (1) SA 918 (O)
[4]
Record l12 page 42 – l18 page 43
[5]
Record l25 page 44 – l2 page 45
[6]
Record l 23 -25 page 53
[7]
Record l 6-8 page 45
[8]
Record l7-15 page 58
[9]
Record l7 page 63- l4 page 64
[10]
See African Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555
(A
)
[11]
1988
(2) SA 160 (A)
[12]
Record page 107