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2017
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[2017] ZAFSHC 35
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Hygiene Outright (Pty) Ltd v SGR Medical Supplies CC (2908/2016) [2017] ZAFSHC 35 (16 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2908/2016
In
the matter between:
HYGIENE
OUTRIGHT (PTY)
LTD
Plaintiff
and
SGR
MEDICAL SUPPLIES
CC
Defendant
CORAM:
NICHOLSON, AJ
HEARD
ON:
16 MARCH
2017
JUDGMENT
BY:
NICHOLSON, AJ
DELIVERED
ON:
16 MARCH 2017
[1]
This is an application for separation of issues in terms of Rule
33(4) of the Uniform Rules of Court. Plaintiff seeks
separation
of the jurisdiction issue and its determination prio
r
to determination of the remainder of the issues raised in the
Particulars of Claim.
[2]
Before dealing with this application, the Court must first deal with
the Applicant’s application to strike out paragraphs
20.2.2;
24; 30; 32 and 40 of the Respondent’s answering affidavit as
containing hearsay evidence. This application
was brought in
terms of rule 6(5) read together with 6(11) and 6(15) of the Uniform
Rules of Court.
After
hearing argument from both parties, the court grants the application
to strike out with costs.
[3]
The court now turns to the application for separation.
The
Plaintiff instituted action against the Defendant in this matter for
payment of R 301 644.00 together with interest and
costs.
The Defendant then entered a plea incorporating a special plea
regarding jurisdiction. It was Plaintiff’s
contention in
replication that the parties entered into an oral agreement of sale,
which agreement was cancelled by a second oral
agreement in terms of
which the Respondent would refund certain monies paid, which
performance would take place entirely within
the jurisdiction of this
Court. It also contends that neither agreement is disputed by
the defendant and that the only real
dispute is when the money was to
be repaid. Plaintiff asserts that, irrespective of the date on
which performance in terms
of the second contract would have taken
place, it was clear that the payment would be made into the
Plaintiff’s bank account.
Thus they argue, the only real
question for determination in relation to the special plea would be
the location of such bank account
as it would found jurisdiction as
the place of performance in terms of the second contract plaintiff
purports the parties concluded.
[4]
Plaintiff asserted that separation offers the following advantages:
Restricting
evidence to what is relevant to the special plea will avoid
unnecessary testimony; avoid duplication of evidence
and
prejudice from pre-viewing witnesses, versions, cross-examination and
arguments; the costs of a full-blown trial can be avoided;
costs,
delay and disadvantages of starting de novo in a new court can be
avoided if the Special Plea succeeds.
[5]
For these reasons, the Plaintiff has brought application for the
separation of the issue raised in the special plea from the
rest of
the proceedings and to have it adjudicated first.
[6]
The Defendant contests this application on the basis that the
special plea and the merits are intertwined and cannot conveniently
be separated. The Defendant denies the existence of the two
oral agreements upon which Plaintiff relies and contends that
the
parties in fact purported to enter into a partly oral, partly written
agreement in terms of which agreement, it argues that
its’
registered office and primary place of business, the place of
conclusion of the purported contract of sale and all the
performances
in terms of this agreement were to have taken place outside of this
court’s jurisdiction.
[7]
The defendant asserts that it would be neither convenient nor
appropriate for the court to separate the jurisdiction issue in
this
case and to postpone the determination of the balance of the issues
sine die
as the core of the dispute between the parties relates to their
contractual relationship.
[8]
The Plaintiff asserts that the parties entered into an oral agreement
of sale in respect of thermostats and that, upon discovery
that the
information they had acted upon in entering into the agreement was
fraudulent, a subsequent oral agreement cancelling
the first
agreement and agreeing to the repayment of the deposit already paid,
came into existence. They base their action
on this second
agreement, alternatively in the event the court does not find that
the second oral agreement existed, on the basis
of restitution.
Hence, the Plaintiff’s claim for this court’s
jurisdiction rests entirely on the existence of
the second oral
agreement. The decision around the jurisdiction cannot be made
without making a decision regarding whether
or not the second
contract existed. For this reason, it is not possible to
separate the legal issue of jurisdiction from
the merits of the case.
[9]
The purpose of rule 33 (4) is to facilitate the convenient and
expeditious disposal of litigation. In making a determination
the court must consider whether the separation will curtail
proceedings and dispose of the matter expeditiously.
[10]
The court must assess the convenience to itself and to the parties
as well as any potential prejudice either party may suffer
if the
separation is granted. (See
CC v CM (
2014 (2) SA 430
(GJ)) per Mokgoatlheng J at par [25]. See too par [27] where he
states that the purpose of the rule is to “determine
the fate
of a plaintiff’s claim (or one of the claims) without the costs
of a full trial”. This he quotes from
Rauff v Standard
Bank Properties (A Division of Standard Bank of SA Ltd.) and Another
(2002 (6) SA 693
(w) per Flemming DJP par [22.1]).
[11]
As Harms AJ pointed out in
Consolidated
News Agencies (Pty) Ltd (In liquidation) v Mobile Telephone Networks
(Pty) Ltd and Another (
2010
(3) SA 382
(SCA) at par [90]), often what initially may appear
discrete may later prove to be intertwined and, even if it is indeed
not intertwined,
may best be more expeditiously disposed of during a
single hearing during which all issues are fully ventilated.
(See too
Denel
(Edms) Bpk v Vorster
2004
(4) SA 481
(SCA) at par [3].)
[12]
The onus of showing that the matters cannot be dealt with
conveniently if separated falls on the defendant in this matter
who
has opposed the application. (
Braf
v Fedgen Insurance Ltd
(1995
(3) SA 938
(C)). In
Consolidated
News
,
however, a clear warning is issued that courts should avoid piecemeal
litigation
[13]
Immediate determination of the jurisdiction issue in this matter
will not be determinative of the claim. It will not be convenient
either for the court or for the parties. It cannot be separated from
the case on the merits as the existence of the contract upon
which
the plaintiff relies to found jurisdiction is in dispute.
[14]
Indeed, the Court must weigh the advantages of granting separation
against the disadvantages. It is the Court’s view
that in the
present case, the expeditious conclusion of this matter will best be
served by the ventilation of all issues at one
hearing. There is no
clear demonstration that separation will be convenient or that it
will result in a substantial curtailment
in the duration of the
proceedings, whilst the potential inconvenience is patent. The
matters would be considered piecemeal,
the court would engage with
the matter on more than one occasion and, the underlying dispute
between the parties would not be finally
disposed of by the
separation. Jurisdiction and the merits in this case are so clearly
intertwined that there would of necessity,
be a duplication of
evidence with associated inconvenience to the witnesses and their
legal represent.
[15]
The Plaintiff seeks costs of the postponement due to late filing of
notice of intention to oppose on the basis these costs
were
unnecessarily wasted.
After
consideration of the papers, the arguments presented and the relevant
authorities, the Court makes the following order:
1.
The
application to strike out is granted with costs.
2.
The
Application for separation of issues is dismissed.
3.
The
Respondent to pay the wasted costs of the postponement.
4.
The
Applicant to pay the costs of this application.
_________________
C.
NICHOLSON, AJ
On
behalf of Applicant: Adv Johnson
Instructed
by:
Phatshoane
Henney Inc
C/o
Markgraaf and Keller St
Westdene
Bloemfontein
On
behalf of Respondent: Adv Costa
Instructed
by:
Hooker Attorneys
c/o Webbers Attorneys
96 Charles St.
Bloemfontein