About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2018
>>
[2018] ZAKZDHC 1
|
|
Gopee v Hurdeen and Others (13440/2011) [2018] ZAKZDHC 1 (9 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION,
DURBAN
CASE
NO. 13440/2011
In
the matter between:-
LUCKPATHIA
GOPEE
APPLICANT
and
MAHENDRA
GANGARAM HURDEEN
FIRST
RESPONDENT
PRAVESH
GANGARAM HURDEEN N.O.
SECOND
RESPONDENT
THE MASTER OF THE HIGH
COURT
PIETERMARITZBURG
THIRD
RESPONDENT
NEESHENDRA GANGARAM
HURDEEN
FOURTH
RESPONDENT
ORDER
The
interlocutory application
1.
The first respondent’s supplementary affidavit, the annexures
attached thereto and the confirmatory affidavits annexed
thereto are
admitted and the first, second and fourth respondents are authorized
to use same during the course of the opposed matter
set down for
hearing on the opposed roll on 26 May 2014;
2. The first respondent is to pay the
costs of such application;
Main
application
3.
The main application is referred for the hearing of oral evidence on
the limited issues referred to in paragraphs 7.1 and 7.2
of the
judgment;
4.
The wasted costs occasioned by the hearing of the main application on
26 May 2014, is to be borne by the first respondent, such
costs are
to include the costs of senior counsel;
5. The costs of the entire application
are reserved for determination by the court hearing oral evidence.
JUDGMENT
HENRIQUES
J
[1]
The applicant’s claim is for specific performance emanating
from an alleged agreement concluded between the applicant
and the
late Gangaram Hurdeen (the deceased) dated 16
th
November 2000.
[2]
The applicant instituted motion proceedings against the respondents
seeking
inter
alia
a
declarator directing the first respondent to sign all documents and
carry out all acts necessary to transfer to the applicant
a public
permit with registration number PMD1310571/1.
[3]
Applicant’s
case
[3.1]
The applicant in support of her claim relied on the averments
contained in the affidavit of Sudesh Ramdas, her son, the general
manager of Springfield Omnibus Services (Durban) CC.
[3.2]
It is contended that an agreement of purchase and sale was concluded
whereby the deceased sold to the applicant the public
bus permit held
in the name of Newlands West Transport (Pty) Ltd, for a purchase
consideration of R 90 000-00.
[4]
The agreement contained suspensive conditions and was contingent upon
the deceased acquiring transfer of the permit into his
name. In
effect, the deceased had sold his right, title and interest in and to
the permit to the applicant.
[5] The deceased died on
09 December 2002 and the permit subsequently vested in the deceased’s
estate and was thereafter transferred
to the First Respondent who
collected same on or about 24 June 2011.
[6]
First
respondent’s case
[6.1] The first
respondent raised various defences in his answering affidavit,
supplementary affidavit and further supplementary
affidavit filed
just prior to the hearing of the opposed application;
[6.2] I propose
dealing with a summary of the defences as set out hereunder:-
[6.2.1]
The
applicant’s
locus
standi
The first
respondent contends that there is no causal nexus between the
applicant and the first respondent in that at the time of
concluding
the purchase and sale agreement, registration of the permit vested in
the company. On a proper construction of the agreement
it is clear
that the deceased sold a contingent right which he would acquire in
the future and ex
facie
the agreement the applicant is a contracting party. The first
respondent’s contention is ill conceived in that the concept
of
locus
standi
relates to the legal capacity to sue and not to the validity or
efficacy of the underlying claim or agreement. There is accordingly
no merit in such defence.
[6.2.2]
First
respondent’s authority/
locus
standi
It is clear from
the papers that the public permit subsequently vested in the
deceased’s estate and was thereafter transferred
to the first
respondent.
As previously
alluded to, the sale was premised on the contingency that the
deceased would acquire registration of the permit in
his name, hence
the deceased’s right would come into existence in the future.
This eventuality occurred albeit after
the death of the
deceased. There is accordingly no merit in the contention that the
deceased did not have the right to sell his
right, title and interest
in and to the permit and equally the defence that the deceased lacked
locus
standi is
without
legal premise.
[6.3]
Successful
challenge under Case No. 9019/2000
The suggestion that
the agreement of sale was successfully impugned under the above case
number is simply devoid of factual substance
and I need not delay
myself any further with this defence;
[1]
[6.4]
Prescription
The respondent
contends that the applicant’s claim has prescribed by the
effluxion of time since the signature of the agreement,
subsequent
death of the deceased and until the date the application was
instituted. The term debt as defined in the Prescription
Act
has been cogently interpreted by the Constitutional Court in the case
of
Makate
vs Vodacom (Pty) Ltd
(CCT52/15) (2016) ZACC 13 (26 April 2016). The Constitutional
Court ruled that the concept debt should not be given a wider
meaning
than its ordinary interpretation. In finding that the deceased had
sold a future right, it is axiomatically reasonable
to conclude that
prescription in respect of the claim of the applicant would commence
on the occurrence of the future event or
the enforcement of such
event. In the premises, I find that the defence of prescription is
without substance.
[6.5]
The
Road Transportation Act/National Land Transport Transition Act and
National Land Transport Act
The first
respondent’s reliance on the above legislation in
substantiation of its submission that the alienation of the public
permit in terms of the sale agreement is prohibited by such
legislation is without legal foundation. On a proper analysis of the
above legislation, it is permissible for the transfer of a public
permit by way of a sale provided that such permit is not disposed
of
through unlawful procedures. It warrants mentioning that
unjustifiable reference to the above legislation has simply burdened
this court and exacerbated the delay in the preparation and handing
down of its judgment.
[6.6]
Validity
of the agreement
[6.6.1] As referred to earlier in this
judgment, the first respondent submitted a report by a hand writing
expert, Mr Cecil Greenfield,
just prior to the hearing of the
application. Mr Greenfield was mandated by the first respondent to
conduct a forensic examination
of the signature of the applicant
appearing on the purchase and sale agreement and to compare same with
the applicant’s writings
in other documents. Mr Greenfield’s
conclusion was as follows:-
‘
Therefore
based on the results of the tests made with the available material,
there are, as indicated on the charts, discrepancies
between the
disputed and known sets of writings that could not be reconciled.’
[6.6.2] The first respondent
accordingly contended that the applicant did not sign the purchase
and sale agreement, and was not
a party thereto and did not suggest
in her case that she was represented in concluding the agreement. It
was submitted on behalf
of the applicant, that even if it was found
that the signature on the agreement was not that of the applicant,
such signature could
be adopted by the applicant. This dispute in my
view is an issue not capable of being resolved on the papers and
warrants the adducement
of evidence.
[6.6.3] It also
warrants a mention that it is somewhat questionable as to the reasons
why the applicant did not enforce a claim
against the respondent’s
estate at the appropriate stage, when the necessary facts and
documents were made available to the
applicant by the third
respondent. Whilst I do not express a view on this issue, it is
extremely likely that same would be raised
when oral evidence is
presented.
[6.6.4] Counsel for the applicant
urged this court to determine this and all other issues on the papers
on the basis that a material
dispute of fact did not exist. If
such approach is to be adopted, the rule as enunciated in
Plascon-Evans Paints (Pty) Ltd vs Van Riebeck Paints (Pty) Ltd
,
(53/84)
[1984] ZASCA 51
;
[1984] 2 ALL SA 366
(A);
1984 (3) SA
623
;
1984 (3) SA 620
(21
ST
May 1984) colloquially referred
to as the
Plascon Evans
Rule would have to be applied in
favour of the respondent’s version. This approach may, in my
view, lead to an injudicial
result.
[7]
Conclusion
Having
carefully considered the submissions and the averments set out in the
respective affidavits, I find that the dictates of
justice compels
the referral of this application to the hearing of oral evidence on
the following limited issues:-
[7.1] Whether the
applicant’s signature appearing on the purchase and sale
agreement is in fact that of the applicant and
concomitantly whether
the applicant and the deceased were the actual contracting parties;
[7.2] Whether the applicant has
complied with its obligations in
inter alia
effecting payment
of the purchase price to the deceased in the event that a finding is
made in favour of the applicant in relation
to the enquiry in
paragraph 7.1 above.
[8]
Costs
I
have previously alluded to the conduct of the first respondent in
filing supplementary affidavits, particularly just prior to
the
hearing of the application. The first respondent at the hearing of
the application filed an interlocutory application, which
was opposed
by the applicant, seeking leave to file a further supplementary
affidavit, containing the report of the handwriting
expert. The
reasons for the delay in the timeous presentation of such affidavit
and expert’s report is non persuasive,
however, in view of the
relevance of the findings contained in the expert’s report, I
am constrained to grant the application.
However it is only
appropriate that the first respondent bears the costs of such opposed
application. The first respondent has
further raised several defences
which were devoid of factual or legal substance and has unnecessary
burdened this court in having
to consider and adjudicate on such
defences. In the exercise of my discretion, I deem it appropriate
that the first respondent
should bear the wasted costs occasioned by
the hearing on 26 May 2016. There is also no reason why such
costs should not
include that of senior counsel.
[9] In the result of the following
orders are granted:-
The
interlocutory application
1.
The first respondent’s supplementary affidavit, the annexures
attached thereto and the confirmatory affidavits annexed
thereto are
admitted and the first, second and fourth respondents are authorised
to use same during the course of the opposed matter
set down for
hearing on the opposed roll on 26 May 2014;
2. The first respondent is to pay the
costs of such application;
Main
application
3.
The main application is referred for the hearing of oral evidence on
the limited issues referred to in paragraphs 7.1 and 7.2
above;
4
The wasted costs occasioned by the hearing of the main application on
26 May 2014, is to be borne by the first respondent, such
costs are
to include the costs of senior counsel;
5. The costs of the entire application
are reserved for determination by the court hearing oral evidence.
________________________
HENRIQUES J
Case
information
Date of hearing
:
26 May 2014
Judgment delivered on
:
9 February
2018
Counsel for the applicant
:
N Singh SC
Instructed by
:
Sinclair & Co
3A Wakefields House
79 Crompton Street
Pinetown
Ref 01/S727/028/SJ
Tel 031-702 7780
c/o Johan Jooste &
Co
32 Dullah Omar
Road\
Durban
Counsel for the respondent :
R Nirghin (drafted heads of argument)
MA Khan
Instructed by
:
A Singh & Associates
378 Ridge Road
Overport
Durban
Tel 031-207 3554
arthie@singhlaw.com
[1]
Paras 15, 16 and 17 indexed page 81.