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[2015] ZAGPPHC 453
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Edulis Mushroom Farms (Pty) Ltd and Others v Africa's Best 397 Ltd and Others (62198/14) [2015] ZAGPPHC 453 (23 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 62198/14
DATE: 23 JUNE 2015
In the matter between:
EDULIS MUSHROOM FARMS (PTY)
LTD
...........................................................
1ST
APPLICANT
CHRISTAAN FREDIRICK DE WET N.
O
............................................................
2ND
APPLICANT
F SERITHI N.
O
.........................................................................................................
3RD
APPLICANT
And
AFRICA’S BEST 397
LTD
.....................................................................................
1ST
RESPONDENT
KBM
ATTORNEYS
...............................................................................................
2ND
RESPONDENT
THE REGISTRAR OF DEEDS,
MPUMALANGA
...........................................
3RD
RESPONDENT
THE MASTER OF THE HIGH COURT,
JOHANNESBURG
...........................
4™
RESPONDENT
Coram: HUGHES J
JUDGMENT
Delivered on: 23 June 2015
Heard on: 10 June 2015
HUGHES J
1. This is an opposed motion and the
applicant seeks an order to uplift the Caveats registered under
1-67/2013C over the properties
described as Erven 213,271,272,278 and
279 Amsterdam Township and confirming the cancellation of the
agreements of sale entered
into on 1 February 2011 between the
applicants and the first respondent.
2. The applicants and the first
respondent concluded two agreements of sale on 19 January 2011 and 1
February 2011. These agreements
were in respect of the sale by the
liquidator of the first respondents of the Erven 213, 248, 278 and
279 Amsterdam and Erven 271
and 272 Amsterdam.
3. The first respondent breached the
terms of the agreements. The applicants allege that they furnished
the first respondent with
the required written notices for breach and
the first respondent failed to cure the breach within seven days as
required. The applicant
then cancelled the agreements in writing.
4. In the founding paper of the
applicants, they allege that they instructed their attorney to give
the respondent the requisite
seven days’ notice. Due to the
failure on the part of the first respondent to respond to the
applicants letter the applicant
proceeded to send a letter of
cancellation by registered mail.
5. The founding papers premise the
relief sought by the applicant on the breach of contract clauses at
paragraphs 1610, 16.11, 16.12
and 16.13 of the founding affidavit.
However, in replying papers the applicant raised new course of action
at paragraphs 21, 22,
23 and 24 of the replying affidavit of the
applicant. These two new causes of action are that the agreements are
void as the director
of the first, Mr Robert Casaletti, lacked
authority to represent and conclude the contracts.
Secondly, the notification of breach
was served on the respondents attorneys. There is no mention made of
the contracts being void.
6. The first respondent argues that the
applicants are precluded from advancing new causes of action in
replay. The applicant submits
that it only became aware of the facts
set out in the replying affidavit “subsequent to the
institution of proceedings under
the withdrawn application” by
the first respondent in South Gauteng, case number 24171/2012 on 29
November 2012, to declare
the agreements valid. I must pause to add
that this application of the applicant, the founding affidavit is
dated 19 August 2014
and it was issued out of this court on 12 August
2014.
7. In Herbstein Van Winsen The Civil
practice of the High Courts and the Supreme Courts of Appeal South
Africa fifth edition at
pages 440-441, the following is pointed out:
“The general rule which has been
laid down repeatedly is that an applicant must stand or fall by the
founding affidavit and
the facts alleged in it, and that although
sometimes it is permissible to supplement the allegations contained
in that affidavit,
still the main foundation of the application is
the allegation of facts stated there, because those are the facts
that the respondent
is called upon either to affirm or to deny. The
Appellate Division has held that it is not permissible to make out
new grounds
for an application in a replying affidavit. Director of
Hospital Services v Mistry
1979 (1) SA 626
(A) at 635H-636B DIEMONT
JA held that:
‘When, as in this case, the
proceedings are launched by way of notice of motion, it is to the
founding affidavit which a Judge
will look to determine what the
complaint is. As was pointed out by KRAUSE J in Pountas' Trustee v
Lahanas
1924 WLD 67
at 68 and as has been said in many other cases:
"... an applicant must stand or
fall by his petition and the facts alleged therein and that, although
sometimes it is permissible
to supplement the allegations contained
in the petition, still the main foundation of the application is the
allegation of facts
stated therein, because those are the facts which
the respondent is called upon either to affirm or deny".
Since it is clear that the applicant
stands or falls by his petition and the facts therein alleged, "it
is not permissible
to make out new grounds for the application in the
replying affidavit"
(per VAN WINSEN J in SA Railways
Recreation Club and Another v Gordonia Liquor Licensing Board!
953
(3) SA 256
(C) at 260.) It follows that the applicant in this matter
could not extend the issue in dispute between the parties by making
fresh
allegations in the replying affidavits filed on 8 June 1977 or
by making such allegations from the Bar. I am not losing sight of
the
fact that, in the absence of an averment in the pleadings or the
petition, a point may arise which is fully canvassed in the
evidence,
but then it must be fully canvassed by both sides in the sense that
the Court is expected to pronounce upon it as an
issue. (See the
recent judgment of HOLMES JA in South British Insurance Co Ltd v
Unicorn Shipping Lines (Pty) Ltdl
976 (1) SA 708
(A) at 714.) But
that situation did notarise in this case; respondent's counsel
expressly confined his argument to the issue on
the papers before the
Court, that is, to the issue as to whether the respondent had delayed
unreasonably in taking action during
the initial period of
applicant's suspension. The question as to what happened after 13
April 1977 was not canvassed by the parties
and the Judge was, as he
conceded in his judgment, left in the dark.”
8. In this instance the applicant on
his own version became aware of that which the first respondent
compliance of as new causes
of action in 2012. When it launched this
application in 2014 it did not set out these new causes of actions
but relied on the cancellation
for its relief. The applicant does not
provide an explanation as to why it did not include the new causes of
action in its founding
paper as by then this was within the
applicant’s knowledge.
9. I align myself with the dicta above
and likewise find that in this case I cannot deal with the new cause
raised as the first
respondent has not had the opportunity to deal
with these at all and in addition I am not aware of any reason, and
none has been
tendered as to why the applicant did not raise these
known causes of action in its founding affidavit instead of in reply.
In the
premise, it follows that the applicant cannot raise new causes
of action in these circumstances in the replying affidavit.
10. I now turn to deal with the cause
of action of cancellation raised in the founding affidavit. I borrow
from The Law of Contract
in South Africa, RH Christie sixth edition
at page 562 If the contract lays down a procedure for cancellation,
that procedure must
be follow or a purported cancellation will be
ineffective. ”
11. Armed with the aforesaid, the
applicant alleges that it sent its written notification to the
domicilium address of the first
respondent. The first respondent
contends that that was it first domicilium address and it had amended
same on 7 September 2010
in line with the contract by written
notification sent to the domicilium choosen by the applicant in the
contract. The applicant
denies this but does not advance a reason for
the denial. .
12. The breach clause at 13 of the
contract entitles the applicant to notify the first respondent in
writing to remedy the breach
in 7 days of dispatch of the written
notice by registered mail or facsimile, if the breach is not remedied
then the applicant is
entitled to cancel without further notice.
13. The address that appears on the
registered letter sent to the first respondent is “Number 1,
Melrose Boulevard Melrose
Johannesburg” The address that
appeared on the contract for the first respondent as reflected in
clause 1 is "Number
1, 1 Melrose Boulevard, Melrose
Johannesburg”. The applicant does not dispute that it
dispatched the written notice to the
address reflected on the
registered slip it tended to this court as annexures to the founding
papers. The applicant merely submits
a bear denies to the contents of
the paragraph where the first respondent makes these allegations. No
further explanation is tendered.
14. The applicant also does not address
the issue raised by the first respondent that they changed their
domilium address to “111-9th
Road, Hyde Park, Sandton 2041”
and notification thereof, in writing, was given to the employee of
the second and third applicants.
This was hand delivered to the
applicants domicilium address.
15. I am indebted to the court in
Sherpard v Emmerich
2015 (3) SA 309
(GJ) where the full bench
considered the issue of service where the parties had contractually
agreed. The following was said:
“[4] The learned judge a quo
considered the issue to be novel and, with reference to three foreign
authorities (see the judgment
of the Court of Session (Outer House)
Scotland in McMullen Group Holdings Ltd v Harwood
[2011] CSOH 132
(201 GWD 32-680); the Queen’s Bench decision in Anglian Water
Services Ltd v Lain O'Rourke Utilities Ltd
[2010] EWHC 1529
(TCC)
([2011]
1 All ER (Comm) 1143
(HC);
131 Con LR 94
;
[2010] 3 EGLR 104
;
[2010] CILL 2873)
; and the judgment in Argo Capital Investors Fund
SPC for Argo Global Special Situations Fund SP v Essar Steel Ltd
[2005] EWHC 2587
, concerning the application of the English
civil-procedure rules), concluded that where a specific method of
effecting service
is contractually agreed, that method should be
strictly complied with. The authorities relied on by the learned
judge are persuasive
and I am in agreement with the conclusion he has
arrived at. I do not consider it necessary to revisit those
judgments.”
16. This is the position in this case,
the parties contracted and agreed on a specific manner of service,
with the applicant failing
to adhere to that which they had agreed.
This is also borne out by the fact that the written notifications
transmitted by the applicant
in respect of the breach were returned
to the sender.
17. It is trite that in application
proceedings where the applicant seeks final relief the dispute of
facts raised by the affidavits
will be approached in line with the
principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. In the face of the
allegation of the first respondent, the applicant had a duty to
provide, not merely a denial,
but rather an explanation coupled with
the denial. There is a wealth of evidence circumstantial and
otherwise which point to that
which has been submitted by the first
respondent. .
18. In the circumstances, having found
that the applicant cannot raise new cause of actions in reply and
having found that the applicant
failed to give written notice to the
first respondent in respect of the breach as contemplated in the
contract, logic follows that
no cancellation could have taken place.
19. The order that I make is that the
application is dismissed with costs such costs to include the
employment of senior counsel
without a junior.
W. Hughes
Judge of the High Court