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[2016] ZAFSHC 80
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Msc Logistics (Pty) Ltd v Khitsane (3539/2012) [2016] ZAFSHC 80 (2 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3539/2012
In
the matter between:
MSC
LOGISTICS (PTY) LTD
Plaintiff
and
THAPELO
DAVID KHITSANE
Defendant
CORAM:
EBRAHIM, J
JUDGMENT
BY:
EBRAHIM, J
HEARD
ON:
17 MAY 2016
DELIVERED
ON:
2
JUNE 2016
[1]
The defendant, Thapelo David Khitsane, an adult male whose permanent
residence and place of domicile is situate at Portion 4,
Erf [....],
O. S., Ladybrand, Free State Province, was employed by the plaintiff,
a limited liability company, carrying on the
principal business of
the shipment of goods, in the position of Manager, at Maseru, in the
Kingdom of Lesotho. He was responsible
for all the shipping
related functions for the Lesotho region.
[2]
His contract of employment was recorded on a letterhead of the
plaintiff’s company, reflecting its address as [...] W.
S.,
Durban. It confirmed his appointment as of the 1 February 2002
and it was common cause between the plaintiff and defendant
that
defendant would be entrusted with the overall day to day running of
the office in Maseru as well as the marketing of the company
in
Lesotho.
[3]
On the 21 February 2012, the defendant resigned his employment with
immediate effect for reasons not necessary to set out in
this
judgment. This resignation precipitated an arbitration hearing
concerning monies he alleged plaintiff owed to him and
the
institution of an action in this court in August 2012 by the
plaintiff claiming from him payment of the sum of R679 477,56
on
the grounds of the breach of a duty care which plaintiff alleged was
owed to it by defendant in respect of the custody and care
of monies
received by defendant on account of services rendered by plaintiff in
Maseru and the surrounding Lesotho region, and
which monies defendant
failed to account for to plaintiff.
[4]
The defendant has disputed the
causa
of the plaintiff’s claim by denying that he owed any duty of
care to the plaintiff and that he caused the plaintiff loss
in the
sum claimed. In addition the defendant has raised 2 special
pleas to the plaintiff’s summons being the plaintiff’s
lack of
locus standi
and this court’s lack of jurisdiction to adjudicate the claim.
Mr Marais, who represents the defendant in these proceedings,
has
pressed the defendant’s case on the special plea on 2 main
grounds:
Firstly
as to the plaintiff’s
locus
standi
, that
defendant was employed by an independent Foreign Shipping Company
registered in Lesotho called MSC Logistics (Pty) Ltd (Lesotho),
a
Lesotho Company, distinct in legal persona from the plaintiff. And
secondly
that since the plaintiff’s cause of action arose in Maseru,
Lesotho, the Lesotho court and not the South African court, has
jurisdiction.
[5]
In support of its case on the special pleas the plaintiff called the
evidence of 2 witnesses. Megendhran Reddy, who was
previously
employed by the plaintiff as an operations manager, and Gail
Hart-Jones, who at the time the cause of action arose,
was employed
by the plaintiff as a financial manager. It was common cause
that, although plaintiff elected to call its witnesses
first, the
defendant carried the onus in respect of both pleas.
[6]
Both these witnesses testified:
(a)
The defendant was
employed by MSC Logistics (Pty) Ltd SA and not MSC Logistics (Pty)
Ltd Lesotho.
(b)
That there is no
separate and distinct company called MSC Logistics (Pty) Ltd Lesotho.
(c)
MSC Logistics (Pty) Ltd
(SA) and MSC Logistics (Pty) Ltd Lesotho are not two separate legal
and economic entities.
(d)
MSC Logistics (Pty) Ltd
(Lesotho) is merely a branch of MSC Logistics (Pty) Ltd (SA) –
they are one and the same juristic
person.
(e)
MSC Logistics (Pty) Ltd
(SA) carries the financial risk and cost of MSC Logistics (Pty) Ltd
(Lesotho).
(f)
MSC Logistics (Pty) Ltd
(SA) employed and paid the employees of MSC Logistics (Pty) Ltd
(Lesotho).
(g)
The defendant was
employed as branch manager of MSC Logistics (Pty) Ltd (SA) at its
Lesotho branch, MSC Logistics (Pty) Ltd (Lesotho).
(h)
MSC Logistics (Pty) Ltd
(SA) is a subsidiary of the parent company, the Mediterranean
Shipping Company and MSC Logistics (Pty) Ltd
(Lesotho) is its branch.
[7]
Gail Hart-Jones testified, in addition, that:
(a) The
assets and liabilities of MSC Logistics (Pty) Ltd (Lesotho) is owned
by MSC Logistics (Pty) Ltd (SA).
(b) MSC
Logistics (Pty) Ltd (SA) elects the directors of MSC Logistics (Pty)
Ltd (Lesotho).
(c) MSC
Logistics (Pty) Ltd (Lesotho) does not have an independent
shareholding because it is not a separate legal persona.
(d) Employees
of MSC Logistics (Pty) Ltd (Lesotho) are paid out of the bank account
of MSC Logistics (Pty) Ltd (SA).
(e) The
defendant was paid out of the South African bank account of MSC
Logistics (Pty) Ltd (SA) by electronic funds
transfer.
(f) On
the 11 February 1999, MSC Logistics (Pty) Ltd (SA) (the plaintiff)
registered itself in Lesotho at the
office of the registration of
companies in Maseru, as an external company in order to trade in
Lesotho in compliance with the provisions
of section 286 of the
Lesotho Companies Act, 25 of 1967. She confirmed that pursuant
to such registration, the plaintiff
obtained a licence to trade in
Lesotho through the Lesotho Ministry of Trade and Industry.
(g)
The licence to trade clearly demonstrates that the company MSC
Logistics, operating from the 4
th
Floor Christie House Orpen Road, Old Europa Maseru was owned by the
plaintiff.
[8]
Ms Hart-Jones made reference to documentary exhibits as proof of her
testimony. She was challenged in cross examination
by Mr Marais
that since the licence issued did not reflect a company registration
number, it was open to some doubt as to whether
it had in fact been
issued to the South African Company (the plaintiff). She
replied that there could be no doubt as only
one company (the
plaintiff) had been incorporated and registered, and that there was
no separate and distinct company of MSC Logistics
incorporated and
registered in Lesotho. It was clear to me from her testimony as
well as the documentary exhibits she relied
upon (the certificate of
registration of the external company at p 65 of plaintiff’s
trial bundle – and the trading
licence at p 69 of plaintiff’s
trial bundle) that the licence had been issued to the plaintiff to
trade as a foreign company
in the Kingdom of Lesotho. No other
inference is possible because the defendant was unable to challenge
her evidence that
no company such as MSC Logistics (Pty) Ltd
(Lesotho) had been incorporated and registered as such in the Kingdom
of Lesotho with
supporting documentary exhibits. The fact that
the licence bears the address in Maseru was additional corroboration
for plaintiff’s
case that the company was operating as a branch
office at that address and in order to do so it needed a trading
licence.
[9]
It was clear to this court from the testimony of the defendant that
it was only the existence of the following circumstances
which had
convinced him that MSC Logistics (Pty) Ltd (Lesotho) was a separate
juristic entity:
(a)
He was based in Lesotho and dealt only with Lesotho customers.
(b)
He paid taxes in Lesotho.
(c)
The laws of Lesotho were applicable to this company.
(d)
He submitted annual tax returns to the Lesotho Revenue Authority in
the name of MSC Logistics
(Pty) Ltd (Lesotho).
(e)
MSC Logistics (Pty) Ltd was registered as an external company in
Lesotho and the licence
to trade in Lesotho was issued with the
Lesotho address.
[10]
The defendant called as his only witness, Ms M P Tohlang, an attorney
employed by the firm Webber Newdigate, in Maseru whose
testimony
supported the plaintiff’s case. She testified as
follows:-
(a)
The Mediterranean Shipping Company is the parent company of its
subsidiary, the plaintiff
company, and MSC Logistics (Pty) Ltd
(Lesotho) is a branch of the plaintiff.
(b)
MSC Logistics (Pty) Ltd (SA) (the plaintiff) carries the financial
risk of MSC Logistics
(Pty) Ltd (Lesotho).
(c)
MSC Logistics (Pty) Ltd (SA) and MSC Logistics (Pty) Ltd (Lesotho)
are one and the same
juristic entity.
(d)
The certificate of registration of an external company at p 65 of the
trial bundle clearly
indicates that MSC Logistics (Pty) Ltd (Lesotho)
is registered as a branch of the plaintiff in Lesotho for the
purposes of trading
in Lesotho. The two are one and the same
legal persona registered in 2 different countries.
[11]
Ms Tohlang’s evidence effectively sounded the death knell to
the defendant’s case on the issue of the plaintiff’s
locus standi
and there can be no doubt that registration as an
external company did not adorn the business of MSC Logistics in
Lesotho with
juristic personality so that it became a separate legal
entity.
See
Wiseman v Ace
Table Soccer (Pty) Ltd
1991 (4) SA 171
W at 173E;
Peerson
v Sheerbonnet SA (Pty) Ltd
(1999) 7 BLLR 793
LC.
[12]
The defendant has admitted in both his plea as well as in his
testimony that he resides within this court’s jurisdiction
and
consequently Mr Marais’s persistence with the second special
plea is difficult to comprehend.
[13]
The two special pleas are dismissed with costs.
_____________
S.
EBRAHIM, J
On
behalf of the plaintiff: Adv. D. de Kock
Instructed
by:
Webbers
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Mr. Marais
Instructed
by:
E G
Cooper Majiedt Inc.
BLOEMFONTEIN
/eb