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[2015] ZAGPPHC 223
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Grobler v Greenfield Growing Systems (Pty) Ltd (61116/13) [2015] ZAGPPHC 223 (20 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 61116/13
DATE:
20 March 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
GERT
FREDERIK
GROBLER
...............................................................................
Applicant
/ Plaintiff
V
GREENFIELD
GROWING SYSTEMS (PTY)
LTD
.......................................
Respondent
/ Defendant
JUDGMENT
MABUSE
J
:
[1]
This is an application by the applicant in terms of Rule 30A of the
Uniform Rules of Court. It is brought against the
respondent on
the basis that the respondent has failed to comply with Rule 18(6) of
the Uniform Rules of Court.
[2]
The applicant is a major male farmer of Koringfontein in the district
of Middelburg in the province of Mpumalanga. He
is the
plaintiff in the main action of the current interlocutory
application. The respondent is a company duly registered
in
terms of the Companies Statutes of this country with its registered
address situated at 7 Barrat Road, Unit 13, Faktoria, Krugersdorp,
Gauteng Province. The respondent is the defendant in the main
action. For purposes of convenience I shall refer to
the
parties by the names they chose to call themselves in the main
action.
[3]
By the combined summons issued by the registrar of this Court on 20
September 2013, the plaintiff claims from the defendant
payment of
the sum of R569,140.92 together with further ancillary relief.
The plaintiff’s claim is allegedly
based on an oral agreement
concluded between the parties either at or near Groblersdal or
alternatively Krugersdorp during December
2012.
[4]
Having been served with a copy of the combined summons, the defendant
pleaded to the said summons. On 14 February 2014
a copy of its
plea was served on the plaintiff while the original thereof was filed
with the registrar of this Court on an unknown
date. It is not
in dispute though that the defendant has delivered its plea.
[5]
In paragraph 4 of the said plea, the defendant had pleaded that:
“
In
amplification of the aforesaid denial the Defendant pleads that on or
about 23 November 2012, the Plaintiff and the Defendant,
both duly
represented, entered into a written agreement. A copy of the
agreement is annexed hereto marked as Annexure GGS1.”
Despite
the assertion contained in the said paragraph 4 that a copy of the
agreement was attached to the plea as Annexure ‘GGS1’,
no
such annexure was attached.
[6]
The failure of the defendant to attach the said written agreement
marked Annexure ‘GGS1’ to the plea, prompted the
plaintiff to deliver a notice in terms of Rule 30A on the defendant
on 5 March 2014. The first paragraph of the said Rule
30A
notice stated that:
“
GELIEWE
KENNIS TE NEEM dat die Eiser die Verweerder hiermee kennis gee dat sy
pleit (paragraaf 4 daarvan) nie voldoen aan die bepaling
van Reel
18(6) deurdat hy beweer dat daar ‘n skriftelike kontrak is en
dat hy versuim het om gemelde kontrak aan te heg.”
Then
the second paragraph continued as follows:
“
GELIEWE
KENNIS TE NEEM dat tensy gemelde skriftelike kontrak binne 10 (tien)
dae na ontvangs van hierdie kennisgewing in hierdie
kantoor beteken
word, ‘n aansoek in bogemelde Agbare hof gebring sal word om
die Verweerder te verplig om aan die reël
te voldoen
alternatiewelik dat die Verweerder se verweer geskrap word en dat die
Eiser se eis toegestaan word met koste.”
Then
the defendant’s attorneys were Attorney McCabe. Despite
service of the said Rule 30A notice on it, the defendant
still failed
to react to it.
[7]
This led to the plaintiff taking a further step. On 22 April
2014, the plaintiff delivered on the defendant another application
in
terms of Rule 30A, this time seeking an order compelling the
defendant to supply “the plaintiff / applicant with a copy
of
the agreement as referred to in AD paragraph 3 of its plea and
referred to as “
GGS1 within 10 (ten) days from service of
the order …”
This
application was supported by the affidavit of the plaintiff’s
attorney, one Mr. Jasper Van der Westhuizen. In the
said
affidavit the plaintiff’s attorney had complained that despite
various telephone requests, then letters of demand followed
by a
notice in terms of Rule 30A the defendant had blatantly refused to
co-operate by supplying a copy of the agreement.
The said
attorney pointed out the difficulty of proceeding with the matter
without the said written agreement. The hearing
of this
application was scheduled for 19 June 2014. The defendant had
at this stage seemingly engaged the services of a new
set of
attorneys. The above application was served on the new
attorneys.
[8]
In response to the said application in terms of Rule 30A the
defendant’s attorneys, now McCabe, delivered the Annexure
‘GGS1’ which they erroneously dubbed “
Annexure
GGS1 of the Plaintiff’s Particulars of Claim.”
The said annexure was titled PROFORMA INVOICE. It was dated 23
November 2012 and had the words “Attention Gert
Grobler”.
It had four columns. In the first column was the figure
“1”. In the second
column was a lengthy description
of the items involved. In the third column was the sum
“R491,446.70” which represented
the unit price. In
the amount column, the fourth and last column, was the same amount
that appeared in the third column.
The total, after adding 14%
of VAT of R68,802.54, was R560,249.24. All these details appear
in the first of the two pages
of Annexure ‘GGS1’.
[9]
On the second page firstly appear the following words:
“
GREENFEED®
GROWING SYSTEMS PAYMENT TERMS AND CONDITIONS OF QUOTATIONS.”
These
was followed by:
“
OUR
STANDRARD PAYMENT TERMS”
:
which
were then followed in that order by:
“
CONDITIONS
OF QUOTATIONS”
:
“
STANDARD
CONDITIONS OF ERECTING AND NORMAL PROCEDURE”
:
and “
GENERAL”.
Almost
at the bottom it has the words:
“
PURCHASER
TO FILL OUT AND SIGN”
:
which
is followed by a provision for the full names of the purchaser
signifying his acceptance of the quotation and its conditions.
This space has not been signed. In other words no one has
filled in his names in that space as the purchaser. There
is at
the foot of this page space for the date and the signature of the
purchaser. This page too has not been completed.
The
details required herein have also not been furnished.
[10]
In a letter dated 18 June 2014 to McCabe Attorneys, the plaintiff’s
attorneys had indicated that they would proceed with
the application
in terms of Rule 30A on 19 June 2014. In a subsequent letter
dated 18 June 2014, the plaintiff’s attorneys
indicated that
the Rule 30A application would on 19 June 2014 be postponed
sine
die
and that costs would be reserved.
On 25 July 2014 the plaintiff’s attorneys served a new Rule 30A
application on the
defendant’s attorneys. This took place
despite the fact that on 13 June 2014 the defendant’s attorneys
had delivered
Annexure ‘GGS1’, the written agreement.
[11]
On 22 August 2014 the defendant delivered its answering affidavit
supported by the affidavit of one Emma Jane Burnett, an adult
female
attorney. In this affidavit the said attorney contended that
Annexure “
GGS1 of the Particulars
of Claim”
had been served on the
plaintiff’s attorneys on 13 June 2014. She further stated
that Annexure ‘GGS1’ was
a copy of the written agreement
entered into between the parties.
[12]
There is no doubt in my view that the Defendant has delivered what it
considered to be a written agreement even if the Plaintiff
has a
different view. The decision whether the document is a contract
should be left for the determination of the trial court.
The
duty of this court is to investigate the Plaintiff’s and having
done so to decide whether or not the Defendant has complied
with such
a request. As was correctly pointed in the Defendant’s
counsel’s heads, it is clear that at the heart
of the dispute
is the question whether a written agreement when as contemplated by
Rule 18(6), refers to a signed agreement only.
Quite evidently the
crux of the Plaintiff’s , as encapsulated in the following
paragraphs of his counsel’s heads, is
that the agreement that
the Defendant refers to as Annexure GGs1 has not been signed and for
that reason the Defendant has not
complied with Rule 18(6). In the
middle of her heads of argument, the Plaintiff’s counsel had
this to say in paragraph 3.5:
“
I
humbly submit that an unsigned copy of an agreement can never
constitute an agreement entered into between the parties. The
defendant
is thus obligated to provide the Plaintiff with a TRUE copy
and/or the true agreement as pleaded in the defendant/respondent’s
plea.”
The
last sentence of paragraph 3.6 of the same heads states as follows:
“
To
date the defendant/respondent alleges that they have supplied the
plaintiff with a copy of the alleged written agreement and
once again
refers to unsigned copy of same.”
[13]
Rule 18(6) does not require a party who relies on a written agreement
to deliver a signed written agreement. The application
by the
Plaintiff, having been served with what the Defendant, rightly or
wrongly refers to as a written agreement, to seek to compel
the
defendant to deliver a signed written agreement is, in my view,
misguided. The authorities that Mrs Spangenberg referred
this
court to were unhelpful on the issue raised in the preceding
paragraph.
I
have not been persuaded that the Plaintiff has made out a good case
for the relief he seeks with his application. The application
can
therefore not succeed. Accordingly the application is refused with a
further order that the costs of this application be costs
in the main
action.
_______________________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant: Adv. C. Spangenberg
Instructed
by: Jasper Van der Westhuizen & Bodenstein Inc.
Counsel
for the respondents: Adv. L. Steyn
Instructed
by: McCabe Attorneys
Date
Heard: 17 March 2015
Date
of Judgment: 20 March 2015