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[2016] ZAGPPHC 1042
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Boyce v Utopia Properties (Pty) Limited; In re: Utopia Properties (Pty) Limited v Boyce (54224/2014) [2016] ZAGPPHC 1042 (20 December 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 54224/2014
20/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
DARIN
WAVELL
BOYCE
APPLICANT
and
UTOPIA
PROPERTIES (PTY)
LIMITED
RESPONDENT
ln
re:
UTOPIA
PROPERTIES (PTY)
LIMITED
PLAINTIFF
and
DARIN
WAVELL
BOYCE
DEFENDANT
JUDGMENT
RANCHOD J:
Introduction
[1]
In this matter the applicant (defendant in the action) seeks,
firstly, condonation for the late filing of this application,
secondly, that he be granted leave to amend his counterclaim as per
his notice of intention to amend dated 11 November 2015 and
thirdly,
costs of the application on the attorney and client scale.
[2]
For the sake of convenience I will refer to the parties as they are
cited in the action, i.e. Utopia Properties (Pty) Ltd as
the
plaintiff and Mr Darin Wavell Boyce as the defendant although the
defendant is the applicant in this application and the plaintiff
the
respondent and plaintiff was the applicant in the exception
proceeding which was determined before Legodi J.
[3]
It is necessary to briefly set out the background to the present
application by the defendant.
[4]
The plaintiff issued summons against the defendant on 18 July 2014 in
which it sought the return of a Ferrari motor vehicle
(the car) by
the defendant on the basis that it was the owner thereof and that
defendant had removed it without the plaintiff's
consent or
knowledge.
[5]
The defendant filed a plea in which he alleged that the plaintiff (as
represented by one Jun Zhu) had donated the car to him
during the end
of 2013 and he had accepted the gift which has been in his possession
ever since.
[6]
The defendant filed a counterclaim consisting of three claims. Of
importance is the fact that in two of the three claims he
relied on a
cohabitation agreement (the agreement) dated 25 June 2013 which was
concluded between him and Ms Jun Zhu (Zhu). The
defendant and Zhu
were cohabiting and they entered into the agreement - 'to govern,
inter alia,
the relationship, assets, liabilities, termination
and the consequences of the relationship.' (Para 2.2 of the
agreement).
[7]
Paragraphs 5.1 and 5.2 of the agreement are relevant for present
purposes:
'5. UTOPIA PROPERTIES (PTY) LIMITED,
REGISTRATION NUMBER: 2013/029017/07 (hereinafter referred to as
"the Company').
5.1
Subject to the
proviso
contained in clause 5.2 below, upon the
termination of the relationship,
Darin
shall be
entitled to 20% (lWENTY PERCENT) of the nett profit value, if any, of
the Company,
said value being calculated on the date of
termination of the relationship and to be determined by
the
Company's
Auditors. The value so determined shall be payable
to
Darin
within 30 (THIRTY) days after the aforesaid
nett profit value of
the Company
has been determinated
by the aforementioned Auditors.
5.2
It is recorded that the 1984 Porsche Carrera, the 2007 Lotus 7
replica motor vehicles are registered in the name of
the
Company,
and the said vehicles are the gifts of
Darin,
to be retained by him upon the termination of the
relationship. It is further recorded that the Landrover Series 3
vehicle, which
is also to be registered in the name of
the
Company,
is also a gift to
Darin
and is to be
retained by him at the termination of the relationship. Said gifts do
not form part of the 20% (TWENTY PERCENT) referred
to in clause 5.1
above.
Jun
will ensure that all the necessary
documentation is in place to give effect t7 the aforegoing.'
[8]
The three counter claims, 'A', 'B' and 'C' are:
'CLAIM A:
On 25 June 2013 at Johannesburg the
Defendant and Jun Zhu entered into a cohabitation agreement, a copy
of which is annexed hereto
marked "A". Jun Zhu entered into
the agreement in her personal capacity as well as on be9a1f of the
Plaintiff.
In terms of paragraph 5.1 of the
agreement the Defendant and the Plaintiff (as represented by Jun Zhu)
agreed that upon the termination
of the relationship between the
Plaintiff and Jun Zhu, the Defendant would be entitled to 20% of the
nett profit value of the Plaintiff,
which shall be calculated on the
date of termination of the relationship between the Defendant and Jun
Zhu and shall be determined
by the Plaintiffs auditors. The said
value determined shall be payable to the Defendant within 30 (THIRTY)
days after the value
of the Plaintiff has been determined by the said
auditors.
1
The relationship between the
Defendant and Jun Zhu was terminated on/about 22 February 2014, but
despite oral demand the Plaintiff
fails and/or refuses to comply with
its obligations in terms of paragraph 5.1 of Annexure "A".
The Defendant is entitled to and
hereby claims the following:
5.1 That the Plaintiff be ordered to
have over all documentation necessary in order for the Defendant to
determine the nett profit
value of the Plaintiff;
5.2 Payment by the Plaintiff to the
Defendant within 30 (THIRTY) days of an amount equal to 20% of the
nett profit value of the
Plaintiff as at 22 February 2014.
5.3 Interest on the amount to be paid
in terms of paragraph 5.2 above at a rate of 9% per year a
tempore
morae;
CLAIM B:
During the end of 2013 the Defendant
received as a gift from the Plaintiff (as represented by Jun Zhu),
being a Ferrari F 355 GTS/GTB
motor vehicle with registration number
RWL891A. The Defendant accepted the gift and has been in possession
of the said motor vehicle
since.
The said motor vehicle is registered
in the Plaintiff's name and the Plaintiff fails and/or refuses to
sign the necessary documents
for the vehicle to be registered in the
Defendant's name.
The Defendant is entitled to an order
for the Plaintiff to sign all documents necessary for the
registration of the motor vehicle
into the Defendant's name.
CLAIM C:
On 25 June 2013 at Johannesburg the
Defendant and Jun Zhu entered into a cohabitation agreement, a copy
of which is annexed hereto
marked "A". Jun Zhu entered into
the agreement on behalf of the Plaintiff, as well as in her personal
capacity.
In terms of paragraph 5.2 of the
agreement the Defendant and the Plaintiff (as represented by Jun Zhu)
recorded the donation of
the 1984 Porsche Carrera and the Lotus 7
replica motor vehicles by the Plaintiff to the Defendant. It
was specifically agreed
by the parties that upon the termination of
the relationship between the Defendant and Jun Zhu that the Defendant
will be entitled
to retain the said motor vehicles.
The relationship between the Defendant
and Jun Zhu terminated on 22 February 2014.
The Plaintiff is in possession of the
Lotus 7 motor vehicle (with registration number CXD142F) and refuses
to hand over the vehicle
to the Defendant.
Both the Porche Carrera motor vehicle
(with registration number BMS720A) as well as the Lotus 7 motor
vehicle is
[sic]
still registered in the Plaintiff's name. The
Plaintiff fails and/or refuses to sign the necessary documentation
for the vehicles
to be registered in the Defendant's name.
The Defendant seeks an order for the
Plaintiff to hand over to the Defendant the Lotus 7 motor vehicle
(with registration number
CXD142F), and to sign all documents
necessary for the registration of this vehicle, as well as the Porche
Carrera motor vehicle
(with registration number BMS720A) into the
Defendant's name.'
[9]
On 23 October 2014 plaintiff excepted to the defendant's plea and
counterclaim on the grounds that they lacked averments necessary
to
sustain a defence.
[10]
The exception was argued before Legodi J on 8 September 2015 who
delivered a written judgment on 18 September 2015. The plaintiff's
exception to the defendant's plea was dismissed while the exception
to the counterclaim was upheld. The defendant was directed
to amend
his particulars of the counterclaim within 15 days from date of
judgment if he still wished to pursue his counterclaim.
[11]
Defendant served and filed a notice dated 2 October 2015 of intention
to amend his counterclaim.
[12]
On 19 October 2015 the plaintiff filed a notice of objection to the
proposed amendment.
[13]
The defendant withdrew the notice of intention to amend and served
and filed another notice of amendment on 11 November 2015
which was
of the same date.
[14]
On 23 November 2015 the plaintiff filed a notice of objection to that
notice.
[15]
The defendant then launched the present application dated 2 February
2016 which was served and filed on 9 February 2016.
The
Condonation Application
[16]
In this matter before me, the plaintiff opposed the application for
condonation in the answering affidavit. However, during
the hearing
plaintiff s counsel said that the plaintiff opposed the application
because the defendant had sought a (punitive) costs
order against the
plaintiff otherwise it had no objection to the granting of
condonation.
[17]
In
Ferris and Another v Firstrand Bank Ltd 2014(3)
SA 39
(CC)
the applicants sought,
inter alia,
condonation for the
late filing of an application for leave to appeal against the refusal
of an application for rescission of judgment
by the High Court,
Moseneke ACJ, in a unanimous decision of the Constitutional Court
referred to
Bertie van Zyl (Pty) Ltd and Another v Minister of
Safety
and Security and Others 2010(2)
SA
181 (CC)
at
para 14 in which it was held that lateness is not t:l.e only
consideration in detennining whether condonation may be granted.
The
test for condonation is whether it is in the interests of justice to
grant it. The respondent in
Ferris
did not oppose the
application for condonation nor was there any indication that the
late filing caused any prejudice. Nevertheless,
Moseneke ACJ held
that -
'the mere fact that there is no
opposition and no apparent prejudice does not necessarily warrant
granting condonation. Condonation
cannot be had for the mere asking.'
[18]
Rule 27(3) of the Uniform Rules of Court, provides:
'The court may, on good cause shown,
condone any non-compliance with these rules.'
[19]
A party seeking an amendment seeks an indulgence from the Court.
[20]
There are two principal requirements for the favourable exercise of a
court's discretion. The first is that the applicant should
file an
affidavit satisfactorily explaining the delay. Secondly, the
applicant should satisfy the court on oath that he has
a
bona fide
defence or that his action [in
casu
the counterclaim] is
clearly not ill-founded, as the case may be. (Erasmus: Superior Court
Practice, Revision Service 1, 2016, 01-323).
[21]
The defendant provides the following explanation for bringing the
application out of time:
'16 AD CONDONATION
I have been advised by my attorney
that I was supposed to bring this application within 10 days after
filing of the Respondent's
notice of objection against my amendment,
which I failed to do so. It seems that the delay with the bringing of
this application
was due to a misunderstanding between my attorney
and the counsel who is briefed in this matter. According to my
attorney he did
enquire from her on the 24th of November 2015 to
advise on the way forward. She was however embroiled in a trial at
the time and
could not attend to the matter until shortly before the
Christmas holiday break. She advised the attorney that the next step
would
be to bring an application to allow the amendment'.
[22]
The allegations are bald, sketchy and unconvincing. The applicant
says his attorney made an enquiry of counsel on 24 November
2015 and
counsel refrained from advising the attorney until shortly before the
Christmas holiday break whenever that may be. No
details had been
furnished by the applicant. No detail is provided as to why the court
should grant condonation and it is completely
unacceptable that an
application of this nature is brought by officers of the court where
the high watermark of the application
is a "misunderstanding"
between attorney and counsel, with no details provided as to what
that misunderstanding is. An
attorney in the position of the
applicant's attorney knows that an application should be brought
within ten days after the filing
of the Respondent's notice of
objection and it was unnecessary to consult with counsel to advise on
the way forward when what was
clearly required was either to bring
the application within the ten day period or to bring a condonation
application as urgently
as possible. Counsel receives a
definite brief from the attorney and cannot be under the impression
that the attorney would
draft the application.
[23]
In my view for these reasons alone the application for condonation
should be refused.
[24]
However, the excipiability of the defendant's proposed counterclaim
merits attention.
[25]
In defendant's notice of intention to amend he contends that on 25
June 2013 and at Johannesburg the plaintiff, represented
by Jun Zho,
and defendant, entered into an oral agreement. The intended amendment
further provides:
"3 The terms of the agreement
between the Plaintiff and the Defendant are that upon the
termination of the relationship
between the Defendant and the
said Jun Zhu, the Defendant would be entitled to 20% of the nett
profit value of the Plaintiff, which
shall be calculated on the date
of termination of the relationship between the Defendant and Jun Zhu,
the 20% nett profit value
of the Plaintiff to be determined by the
Plaintiff's auditors. The said value determined shall be payable to
the Defendant within
30 (THIRTY) days after the value of the
Plaintiff has been determined by the said auditors.
4. The relationship between the
Defendant and Jun Zhu was terminated on/about 22 February 2014, but
despite oral demands the Plaintiff
fails and/or refuses to comply
with its obligations in terms of this agreement."
[26]
The plaintiff's main objection to the amendment is that the
allegation at paragraph 3 is a reference to an oral agreement
contradicting the written agreement, which is annexure A to the
unamended defendant's counterclaim. The cohabitation agreement
(Annexure A to defendant's counterclaim) was not concluded between
plaintiff (a juristic personality) and defendant as alleged
in
paragraph 2 of defendant's second notice, but between Jun Zho and
defendant.
[27]
The terms of annexure A (i.e. the cohabitation agreement) are
contradicted by the terms of the alleged oral agreement set out
in
paragraphs 2 and 3 of the second notice.
[28]
The presented defendant before the court in the counterclaim is not
Jun Zho but Utopia Properties (Pty) Ltd (the plaintiff).
The
cohabitation agreement was concluded on 23 June 2013. In the proposed
amendment the defendant alleges that on 25 June 2013
and at
Johannesburg Utopia Properties and the defendant entered into an oral
agreement in terms whereof they agreed that upon the
termination of
the relationship between the defendant and Zho the defendant would be
entitled to 20% of the net profit value of
Utopia Properties, the 20%
net profit to be determined by Utopia Properties' auditors. But the
cohabitation agreement was not concluded
between Utopia Properties
and the defendant but between him and Jun Zho hence the allegation at
paragraph 3 of the proposed amendment,
which is a reference to the
oral agreement contradicts the written agreement which is annexure A
to the present counterclaim.
[29]
The proposed amendment which seeks to introduce a concurrent oral
agreement to the written agreement contradicts the express
terms of
the cohabitation agreement and would be inadmissible and renders the
proposed amendment to the counterclaim excipiable.
In terms of the
parol evidence rule the applicant is precluded from pleading an oral
agreement which contradicts the express terms
of the written
agreement and to allow the amendment to paragraphs 2 and 3 wold
render the counterclaim excipiable as disclosing
no cause of action.
[30]
At paragraph 9 of the proposed amendment (being the second notice),
the defendant pleads as follows:
"9 On or about 25 June 2013, and
at Johannesburg the Plaintiff (as duly represented by Jun Zhu)
donated to the Defendant the
following vehicles
9.1 a Lotus 7 replica motor vehicle
(with registration number C[…]); and
9.2 a Porche Carrera motor vehicle
(with registration B[…])."
[31]
In paragraph 5.2 of the cohabitation agreement, it is recorded that
the 1984 Porche Carrera and the 2007 Lotus 7 replica motor
vehicles
are donated to the defendant. However, in the un-amended counterclaim
at paragraph C the defendant pleads that the defendant
and Jun Zhu
entered into the cohabitation agreement and that Jun Zhu entered into
the agreement on behalf of the Plaintiff as well
as in her personal
capacity. Again, the intended amendment is excipiable and fails to
disclose a cause of action.
[32]
In the premises, the application for condonation is refused with
costs.
___________________
RANCHOD J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant
: Adv.
Vermaak-Hay
Instructed
by
:Arthur Channon Attorneys
Counsel
on behalf of Respondent
: Adv. S S Cohen
Instructed
by
: Tanners & Associates
Date
heard
: 9 November 2016
Date
delivered
: 20 December 2016