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[2017] ZANCHC 14
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Rhegium Properties (Edms) Bpk and Another v Groenewald and Others (1005/13, 1006/13) [2017] ZANCHC 14 (20 January 2017)
HIGH
COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Reportable:
NO
Circulate
to Judges: NO
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE NO: 1005 &
1006/13
In
the matter between:
RHEGIUM
PROPERTIES (EDMS)
BPK
1
st
Applicant
SCAMANDER
PROPERTIES (EDMS)
BPK
2
nd
Applicant
AND
FRANCOIS
GROENEWALD
1
st
Respondent
ANDRIES
JACOBUS
GROENEWALD
2
nd
Respondent
ANDRE
GROENEWALD
N.O
3
rd
Respondent
FRANCOIS
GROENEWALD
N.O
4
th
Respondent
PAUL
MAGIEL BESTER
N.O
5
th
Respondent
ANDRIES
JACOBUS
GROENEWALD
6
th
Respondent
Coram: Lever AJ
JUDGMENT
L Lever AJ
1.
The
above matters come before me as opposed applications to amend the
respective combined summons in each case. There are two matters
consisting of case numbers 1005/2013 and 1006/2013. In each of these
cases the plaintiffs are different corporate entities. The
defendants
however, are comprised of the same group of natural persons. Some of
the defendants are cited in their dual personal
capacity and as
trustees of the ‘Voordeel Trust’ and others being cited
simply as trustees of the ‘Voordeel Trust’.
2.
The
issues to be decided in the above cases are the same. Counsel for
both the applicants and the respondents approached the matter
on the
basis that the issues to be decided are indeed the same. Accordingly,
I will only write one judgment in respect of both
matters.
3.
Originally,
the Notices of Amendment in the respective cases were far ranging and
dealt with a number of matters relating to the
respective plaintiffs’
claims. Some of the amendments sought were problematic in certain
respects. However, at the hearing
hereof, Mr Gilliland who appeared
for the applicants in both matters withdrew certain of the amendments
in both cases.
4.
In
case number 1005/2013 Mr Gilliland referred the court to the Notice
of Amendment, which appears at page 74 of the relevant bundle,
and
specifically referred the court to paragraphs 8 to 15 thereof as well
as a second paragraph therein which was also numbered
as paragraph 15
and indicated that the applicants withdrew the proposed amendments
set out in these paragraphs.
5.
Mr
Gilliland then referred to paragraph 16 of the said Notice of
Amendment and indicated that the amendments that would have been
inserted in the Particulars of Claim as paragraphs 29.7.1 and 29.7.2
were also withdrawn and that in paragraph 16 of the said Notice
of
Amendment, the only amendments that the applicant pursued would be
those that would have been inserted as paragraphs 29.7.3
and 29.7.4.
These would then be renumbered to 29.7.1 and 29.7.2 respectively.
These last two amendments are minor and deal with
the issue of costs
and further and/or alternative relief. In effect, the only amendments
to be dealt with in the present application,
being those set out and
dealt with in paragraphs 1 to 7 of the said Notice of Amendment.
These issues relate to the citation of
the defendants.
6.
In
case number 1006/2013 Mr Gilliland referred the court to the Notice
of Amendment, which appears at page 97 of the relevant bundle
and
indicated that the applicant withdrew paragraphs 7 to 15 of the
relevant Notice of Amendment. Paragraph 16 of the said Notice
of
Amendment remains. Paragraph 16 deals with costs and further and/or
alternative relief. Paragraphs 1 to 6 of the said Notice
of Amendment
remain in dispute. These paragraphs deal with the citation and
reference to the parties.
7.
On
behalf of the applicants, Mr Gilliland tendered the costs in relation
to the parts of the respective Notices of Amendment which
were
withdrawn at the hearing, specifically the costs relating to the
preparation of the relevant objections and the costs of preparing
the
Heads of Argument in respect of such objections. Mr Van Rhyn SC, who
appeared for the respondents herein, accepted such tender
and I made
an order in respect of such, incorporating the terms of the tender.
8.
Turning
back now to the relevant Notices of Amendment, the issue to be
decided is whether the proposed amendments simply correct
the
citation of the defendants already before the court or whether the
amendments introduce new parties to the respective actions.
9.
In
terms of Rule 17 of the Uniform Rules of Court (the Rules or Rule, as
the case may be) a summons or a combined summons may be
issued. Rule
17(2)(a) states that when a claim is not for a debt or a liquidated
demand then a combined summons must be used. Nominally,
a combined
summons has two parts, the first part being a summons as near as may
be in accordance with form 10 of the first schedule
to the Rules
(form 10 summons), to which must be attached the second part, being a
statement of the material facts relied upon
by the plaintiff to
support its claim, the Particulars of Claim.
10.
In
order to deal with the issue, being whether or not a defendant was
cited incorrectly and the amendment simply corrects this or
whether a
new party is introduced to the action by the relevant amendment, it
is necessary to set out how the defendants have been
cited in each of
the relevant combined summons’. On the facts of these cases it
is necessary to set out how the defendants
have been described in the
heading of the form 10 summons as well as how they have been
described in the body of the form 10 summons
for both cases. It will
also be necessary to set out how the defendants have been cited in
both the heading and the body of the
Particulars of Claim. Then it
will also be necessary to refer to the amendments that are still
pursued and the objections that
are relevant to such proposed
amendments.
11.
In
case number 1005/2013 and in the heading of the form 10 summons, the
defendants are cited as follows:
11.1.
First
defendant – Francois Groenewald N.O., the letters N.O.
indicating that he is cited in a representative capacity;
11.2.
Second
defendant – Andries Jacobus Groenewald N.O. cited in his
representative capacity;
11.3.
Third
defendant – Andre Groenewald N.O. cited in his representative
capacity;
11.4.
Fourth
defendant – Mnr Francois Groenewald cited in his personal
capacity, being the same natural person as the first defendant,
merely cited in a different capacity;
11.5.
Fifth
defendant – Paul Michiel Bester N.O. cited in his
representative capacity; and
11.6.
Sixth
Defendant – Andries Jacobus Groenewald cited in his personal
capacity, being the same natural person as the second defendant,
merely cited in a different capacity.
12.
In
the body of the form 10 summons in case number 1005/2013 the
defendants are cited as follows:
12.1.
First
defendant – is cited in his representative capacity as a
trustee of the Voordeel Trust;
12.2.
Second
defendant – although the letters N.O. do not appear behind his
name in the body of the form 10 summons, he is cited
in a
representative capacity as a trustee of the Voordeel Trust;
12.3.
Third
defendant – his first name is given as Andries which is
different from what is set out in the heading of the form 10
summons.
However, he is also cited in a representative capacity as a trustee
of the Voordeel Trust;
12.4.
Fourth
defendant – being the same person as the first defendant is
cited in his personal capacity;
12.5.
Fifth
defendant – is cited in his representative capacity as a
trustee of the Voordeel Trust; and
12.6.
Sixth
defendant – being the same person as the second defendant, is
again cited in his representative capacity as a trustee
of the
Voordeel Trust as opposed to in his personal capacity as is apparent
in the heading of the form 10 summons.
13.
In
the heading of the Particulars of Claim in case number 1005/2013, the
defendants are cited as follows:
13.1.
First
defendant – is cited in his personal capacity (different from
both the heading and body of the form 10 summons);
13.2.
Second
defendant – is cited in his representative capacity;
13.3.
Third
defendant – is cited in his representative capacity;
13.4.
Fourth
defendant – being the same person as the first defendant, is
cited in his representative capacity (it appears that
the order of
citing him in his personal and representative capacity has been
switched from the order that appears in the form 10
summons);
13.5.
Fifth
defendant – is cited in his representative capacity; and
13.6.
Sixth
defendant – being the same person as the second defendant is
cited in his personal capacity (In the body of the form
10 summons
second and sixth defendants were cited in their capacities as
trustees of the Voordeel Trust. The heading of the form
10 summons
gives an indication that it was intended to cite him in his dual
representative and personal capacities).
14.
In
the body of the Particulars of Claim in case number 1005/2013, the
defendants are cited as follows:
14.1.
First
defendant – cited in his personal capacity;
14.2.
Second
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust;
14.3.
Third
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust. In both the heading and the body
of the
Particulars of Claim the third defendants first name is given as
Andre, which is not the case in the form 10 summons;
14.4.
Fourth
defendant – being the same person as the first defendant is
cited in his representative capacity as a trustee of the
Voordeel
Trust;
14.5.
Fifth
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust; and
14.6.
Sixth
defendant – being the same person as the second defendant is
cited in his personal capacity.
15.
In
case number 1005/2013 the applicants/plaintiffs seek to make the
following amendments:
15.1.
In
the heading of the form 10 summons and in respect of the first
defendant by deleting the letters N.O. In effect changing his
citation from being cited in a representative capacity to being cited
in his personal capacity;
15.2.
In
the body of the form 10 summons and in respect of the first defendant
by deleting the reference to the first defendant being
sued in a
representative capacity and changing his citation to indicate that as
first defendant he is now cited in his personal
capacity. It must be
remembered that the first defendant is one and the same person as the
fourth defendant.
15.3.
In
the body of the form 10 summons and in respect of the second
defendant to add the letters N.O. after his name, even though in
the
body of the form 10 summons the second defendant is cited in his
capacity as a trustee of the Voordeel Trust.
15.4.
In
the body of the form 10 summons to delete the first name of the third
defendant and replace it with the name Andre so that it
would
correspond to the name of the third defendant as set out in the
heading of the form 10 summons.
15.5.
In
the heading of the form 10 summons by deleting the citation of the
fourth defendant “Mnr Francois Groenewald” and
replacing
it with “Francois Groenewald N.O.” So, that the order in
which the first and fourth defendant is cited in
his personal and
representative capacities in the heading of the form 10 summons
corresponds with the order in which he is cited
in those capacities
in the Particulars of Claim.
15.6.
In
the body of the form 10 summons in the citation of the fourth
defendant, to indicate that he is being sued in his representative
capacity as a trustee of the Voordeel Trust. Then, the order in which
the first and fourth defendant is cited in his personal and
representative capacities corresponds with the order in which it
appears in the Particulars of Claim.
15.7.
In
the body of the form 10 summons by deleting the reference to the
sixth defendant in his representative capacity and replacing
it with
contentions that he is cited in his personal capacity to correspond
to the heading of the form 10 summons.
16.
In
case number 1005/2013 the respondents raise the following objections
to the amendments sought by the applicants:
16.1.
The
form 10 summons and not the Particulars of Claim is the pleading that
initiates the action;
16.2.
The
plaintiffs’ proposed amendments of the heading and body of the
form 10 summons, as proposed in paragraphs 1 to 7 of the
Notice of
Intention to Amend, would constitute a substitution of parties
against whom the action had been instituted; and
16.3.
The
remaining objections relate to the proposed amendments that the
applicant withdrew at the hearing hereof.
17.
In
case number 1006/2013 and in the heading of the form 10 summons, the
defendants are cited as follows:
17.1.
First
defendant – Andries Jacobus Groenewald N.O. cited in a
representative capacity;
17.2.
Second
defendant – Andre Groenewald N.O. cited in his representative
capacity;
17.3.
Third
defendant – Francois Groenewald cited in his personal capacity;
17.4.
Fourth
defendant – Paul Michiel Bester N.O. cited in his
representative capacity; and
17.5.
Fifth
Defendant – Andries Jacobus Groenewald cited in his personal
capacity, being the same person as the first defendant.
18.
In
the body of the form 10 summons in case number 1006/2013 the
defendants are cited as follows:
18.1.
First
defendant – is cited in his representative capacity as a
trustee of the Voordeel Trust without the letters N.O. after
his
name;
18.2.
Second
defendant – his first name is given as Andries which is
different from what is set out in the heading of the form 10
summons.
However, he is also cited in a representative capacity as a trustee
of the Voordeel Trust;
18.3.
Third
defendant – cited in his personal capacity;
18.4.
Fourth
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust; and
18.5.
Fifth
defendant – being the same person as the first defendant, is
again cited in his representative capacity as a trustee
of the
Voordeel Trust as opposed to being cited in his personal capacity as
is apparent in the heading of the form 10 summons.
19.
In
the heading of the Particulars of Claim in case number 1006/2013, the
defendants are cited as follows:
19.1.
First
defendant – cited in his representative capacity;
19.2.
Second
defendant – cited in his representative capacity. His first
name is given as Andre, which corresponds to the heading
of the form
10 summons;
19.3.
Third
defendant – cited in his representative capacity, which differs
from his citation in both the heading and body of the
form 10
summons;
19.4.
Fourth
defendant – cited in his representative capacity; and
19.5.
Fifth
defendant – being the same person as the first defendant is
cited in his personal capacity.
20.
In
the body of the Particulars of Claim in case number 1006/2013, the
defendants are cited as follows:
20.1.
First
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust;
20.2.
Second
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust. His first name is given as Andre,
which
corresponds to the heading of the form 10 summons and the heading of
the Particulars of Claim, but differs from the body
of the form 10
summons where he is cited as Andries Groenewald;
20.3.
Third
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust, which differs from his citation
in both the
heading and body of the form 10 summons;
20.4.
Fourth
defendant – cited in his representative capacity as a trustee
of the Voordeel Trust; and
20.5.
Fifth
defendant – being the same person as the first defendant is
cited in his personal capacity.
21.
In
case number 1006/2013 the plaintiffs seek to make the following
amendments:
21.1.
In
the body of the form 10 summons and in respect of the first
defendant, to add the letters N.O. after the first defendant’s
name even though he is already cited in his capacity as a trustee of
the Voordeel Trust in the relevant paragraph in the body of
the form
10 summons;
21.2.
In
the body of the form 10 summons and in respect of the second
defendant by replacing the name “Andries” with “Andre”
so that it conforms with the citation of the second defendant in the
heading of the form 10 summons;
21.3.
In
the heading of the form 10 summons and in respect of the third
defendant by adding the letters N.O. after his name;
21.4.
In
the body of the form 10 summons to delete the paragraph citing the
third defendant and replace it with the following:
“
FRANCOIS
GROENEWALD N.O., ʼn volwasse man wie se besonderhede aan Eiser
onbekend is; in sy hoedanigheid as trustee van die Voordeel
Trust met
adres te Frans Lubbestraat 1, JAN KEMPDORP.”;
21.5.
In
the body of the form 10 summons, with reference to the fifth
defendant, by removing reference to him being cited in his
representative
capacity and changing his citation to be in his
personal capacity as surety and co-principal debtor for the
obligations of the
Voordeel Trust to the plaintiff. It must be
remembered that the fifth defendant is the same person as the first
defendant; and
21.6.
In
the body of the form 10 summons and with reference to the citation of
the plaintiff, by deleting the words “(hierna ‘die
Eisers’ genoem)” and changing it to the singular “(hierna
‘die Eiser genoem’)”, there being
only one
plaintiff in case number 1006/2013.
22.
In
case number 1006/2013 and in respect of the above proposed
amendments, the respondents raised the following objections:
22.1.
The
form 10 summons and not the Particulars of Claim is the pleading that
initiates the action;
22.2.
Plaintiff’s
proposed amendments to the heading and the body of the form 10
summons, as set out in paragraphs 1 to 6 of the
Notice of Intention
to Amend, constitutes a substitution of parties against whom the
action had been instituted; and
22.3.
The
other objections raised in the relevant Notice of Intention to Amend
deal with the objections that the applicant withdrew at
the hearing
hereof. Accordingly, such objections need not be considered herein.
23.
Turning
now to the respective arguments raised by the applicants and the
defendants on whether the proposed amendments merely correct
an
incorrect citation or whether such proposed amendments introduce a
new party to the action.
24.
Mr
Gilliland on behalf of the applicants’, submits that a
‘combined summons’ is a composite document. That the
form
10 summons cannot exist and has no legal effect without the
‘Particulars of Claim’. That the form 10 summons and
the
Particulars of Claim are issued by the Registrar as a composite
document. That the form 10 summons and the Particulars of Claim
are
served on the defendants as a composite document by the Sheriff. That
the issuing and service of the form 10 summons without
the
Particulars of Claim would be a nullity and that such process would
not result in an action being instituted.
25.
Mr
Gilliland submitted that, because one part of a combined summons
cannot exist without the other that the combined summons must
be read
as a composite document whereby the two parts and the contentions
made in the respective parts thereof must be read together.
26.
Mr
Gilliland referred the court to a passage in Harms
[1]
dealing with the nature and interpretation of the court rules and the
authorities cited therein. On the strength of this passage
submitted
that: the object of the rules was to ensure a fair trial and the
rules should be interpreted in that context; the rules
exist for the
court and not the other way round; the rules are not to be enforced
for their own sake but their purpose is to ensure
the inexpensive and
expeditious completion of litigation; the rules should be interpreted
and applied to achieve these objects.
[2]
27.
Mr
Gilliland referred to certain positions taken by the defendants in
their plea-over that indicate that they are and were fully
aware that
they were being cited in their capacities as trustees of the Voordeel
Trust. In case number 1005/2013 Mr Gilliland referred
to paragraphs
18.2, 20.2 and 22 of the relevant plea. In case number 1006/2013 Mr
Gilliland referred paragraphs 9.2, 13, 14.2 and
14.3 of such plea.
28.
In
conclusion Mr Gilliland argued that on a correct reading of the
‘combined summons’ in both cases, that the Voordeel
Trust
had always been before the court. That the proposed amendments in
both cases merely corrected certain errors in the description
of the
co-trustees. That the proposed amendments did not introduce a new
party to either action. That from the passages of the
defendants’
pleas referred to above indicate that the respondents also understood
that the trust was being brought before
the court. Finally, on the
authority of GOLDEN HARVEST (PTY) LTD v ZEN-DON CC
[3]
that the amendments ought to be allowed because they merely corrected
a mis-description and did not introduce a new party to the
action.
Furthermore, there has been a gradual trend to move away from an
overly formal approach.
[4]
29.
Mr
Van Rhyn, for respondents on the other hand argued that the form 10
summons should establish who the parties to the relevant
action are
and in that context, it can be analysed without reference to the
Particulars of Claim. Mr Van Rhyn contended on the
authority of the
ASSOCIATED PAINT AND CHEMICAL INDUSTRIES (PTY)LTD t/a Albestra Paint
and Lacquers v SMIT
[5]
and the
unreported judgment of Fischer AJ in the matter of OLD MUTUAL
INVESTMENT SERVICES (PTY) LTD v GIDEON ALBERTUS VAN ZYL AND
TWO
OTHERS
[6]
that the proposed
amendments would allow a substitution of parties and for that reason
ought to be refused.
30.
I
must first consider whether the form 10 summons should be read as a
composite document as motivated by Mr Gilliland or in isolation
as
motivated by Mr Van Rhyn before considering whether the issues raised
by Mr Van Rhyn in regard to the form 10 summons and the
amendment
thereof in each case would constitute the substitution of a new party
to the action in each of the relevant cases. If
the form 10 summons
must be read together with the contents of the Particulars of Claim
in each case as a composite document, then
there is no doubt who is
intended to be sued and clearly the amendments only correct a
mis-description in the summons. In those
circumstances the proposed
amendments ought to be granted. It is only if I conclude that the
form 10 summons should be considered
in isolation that I would need
to consider the issues raised by Mr Van Rhyn in respect of the
proposed amendments.
31.
Neither
Mr Gilliland nor Mr Van Rhyn could refer me to any authority on this
point. In my view Mr Gilliland’s argument is
the more
persuasive of the two. Clearly, a combined summons is what the name
suggests, it is a composite document that is not whole
or complete if
any one of its component parts is excluded or missing. The composite
document is issued by the Registrar and served
on the defendants.
This is distinct from a simple summons, where a summons as near as
may comply with form 9 of the first schedule
of the Rules is issued
by the Registrar and served on the defendants (form 9). It is only
when the defendants have entered an appearance
to defend the form 9
summons that the plaintiff is obliged to file a Declaration under the
provisions of Rule 20.
32.
Mr
Van Rhyn submitted on behalf of the respondents, that if the form 10
summons does not establish that a defendant is a party to
the action
that such defendant need not even read the Particulars of Claim. In
my view, this approach is overly technical and is
not conducive to
having the real issues between the litigants decided in as speedy and
cost effective manner as possible. Furthermore,
it overlooks the
manner in which Rule 17 deals with a combined summons as a composite
document. The one part being meaningless
without the other.
33.
Even
though Rules 17(2)(a) and 18 do not require it, a practice has
arisen, which appears to be almost universal, that the parties
are
fully described in the Particulars of Claim.
34.
In
all of these circumstances, I do not believe a defendant when served
with a combined summons can simply look to the form 10 summons
to
determine whether or not he, she or it is a party to the action. I
believe the combined summons must be read as a composite
document. In
these circumstances, it is sufficiently clear who the plaintiffs’
intended to sue as the defendants. Accordingly,
the proposed
amendments ought to be allowed. They merely correct a misdescription
of the defendants in the form 10 summons.
35.
The
last remaining issue is the issue of costs. Save for the order of
costs already made, I can see no reason why the costs should
not
follow the event and costs will be awarded accordingly.
In
the circumstances, the following order is made:
In
case number 1005/2013:
1)
Plaintiffs’
are granted leave to amend their summons in accordance with
paragraphs 1 to 7 and the remainder of paragraph 16
of the Notice of
Amendment filed of record on the 26 April 2016.
2)
Save
for the order of costs already made herein, the respondents are to
pay the costs of this application.
In
case number 1006/2013:
1)
Plaintiff
is granted leave to amend its summons in accordance with paragraphs 1
to 6 and paragraph 16 of the Notice of Amendment
filed of record on
the 26 April 2016.
2)
Save
for the order of costs already made herein, the respondents are to
pay the costs of this application.
____________
Lawrence
Lever
Acting
Judge
On
behalf of Applicants
:
Mr Gilliland
Haarhoffs
Attorneys
On
behalf of Respondents:
Mr Van Ryhn SC
Elliot, Maris Wilman &
Hays Attorneys
Date
of hearing:
28 October 2016
Date
of Judgment:
20 January 2017
[1]
Harms, CIVIL PROCEDURE IN THE SUPERIOR COURT,
Butterworths., at A-4.
[2]
Harms above.
[3]
2002 (2) SA 653
(O) at 661F.
[4]
Four Tower Investments (Pty) Ltd v Andre’s
Motors
2005 (3) SA 39
at para [19].
[5]
2000 (2) SA 789 (SCA).
[6]
Handed down in the Free State High Court,
Bloemfontein on the 3 March 2011 under case number 4381/2009.