About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2015
>>
[2015] ZAECMHC 48
|
|
Edge to Edge 1199 CC v Tha-Mhle Estates (Pty) Ltd (1291/13) [2015] ZAECMHC 48 (16 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 1291/13
Not
Reportable
Heard
on: 23/03/2015
Delivered
on: 16/04/2015
In
the matter between:
EDGE
TO EDGE 1199
CC
.........................................................................................................
Plaintiff
and
THA-MHLE
ESTATES (PTY)
LTD
......................................................................................
Defendant
JUDGMENT
ON SPECIAL PLEAS
NHLANGULELA
ADJP:
[1]
This judgment concerns the sustainability of special pleas raised
against the particulars of claim; namely that the particulars
of
claim do not disclose a cause of action, the plaintiff’s claim
is
res judicata
and, therefore, the proceedings brought by the
plaintiff are vexatious. On these bases the defendant contends
that the plaintiff’s
particulars of claim must be dismissed
with costs on attorney and client scale.
[2]
The special pleas are legal objections which the defendant is
entitled to raise as envisaged in Rule 22 (1) of the Rules of
this
Court. However, these pleas are different in nature. The
special plea of
res judicata
is the peremptory or permanent in
nature in that it has as its object the quashing of the action
altogether. It can be raised
in
initio litis
or after
litis contestation
. Corbett JA, as he was then,
had the following to say about such a plea in
Evins v Shield
Insurance Co Ltd
1980 (2) SA 814
(A) at 835F-G:
“
Closely
allied to the “once and for all” rule is the principle of
res judicata
which establishes that, where a final judgment has been given in a
matter by a competent court, then subsequent litigation between
same
parties, or their privies, in regard to the same subject-matter and
based upon the same cause of action is not permissible
and, if
attempted by one of them, can be met by the
exceptio
rei judicatae vel litis finitae
.
The object of this principle is to prevent the repetition of
lawsuits, the harassment of a defendant by a multiplicity of
actions
and the possibility of conflicting decisions (Caney
Law
of Novation
2
nd
ed at 70)…”
[3]
In
Bafokeng Tribe v Impala Platinum Ltd and Others
1999 (3) SA
517
(BH) Friedman JP, in elucidating the application of the
phrases: “the same cause of action” and “the same
subject matter”, stated as follows at 566B-E:
“
I
find that the essentials of the
exceptio
res judicata
are threefold, namely that
the previous judgment was given in an action or application by a
competent court (1) between the same
parties, (2) based on the same
cause of action (
ex eadem petendi
causa)
, (3) with respect to the same
subject-matter, or thing
(de eadem re
).
Requirements (2) and (3) are not immutable requirements of
res
judicata.
The subject-matter
claimed in the two relevant actions does not necessarily and in all
circumstances have to be the same.
However, where there
is a likelihood of a litigant being denied access to the courts in a
second action, and to prevent injustice,
it is necessary that the
said essentials of the threefold test be applied. Conversely,
in order to ensure overall fairness,
(2) or (3) above may be relaxed.
A
court must have regard to the object of the
exceptio
res judicata
that it was introduced
with the endeavour of putting a limit to needless litigation and in
order to prevent the recapitulation of
the same thing in dispute in
diverse actions, with the concomitant deleterious effect of
conflicting and contradictory decisions.”
[4]
Further, the following was said by Van Winsen AJA in the case of
Custom Credit Corporation (Pty) Ltd v Shembe
1972 (3) SA 462
(A) at 472A-B:
“
The
law requires a party with a single cause of action to claim
in one and the same action whatever remedies the
law accords him upon
such cause. This is the
ratio
underlying the rule that, if a cause of action has previously been
finally litigated between parties, then a subsequent attempt
by the
one to proceed against the other on the same cause for the same
relief can be met by an
exception rei
judicatae vel litis finitae.
The
reason for this rule is given by
Voet
,
44.2.1, (
Gane’s
translation, vol, 6 p. 553) as being
“
to
prevent inextricable difficulties arising from discordant or perhaps
mutually contradictory decisions due to the same suit being
aired
more than once in different judicial proceedings.”
[5]
The cause of action referred to in this case may be explained in
terms of the
dictum
of Farlam AJA, as he then was, in the case
of
Tradax Ocean Transportation SA v MV Silvergate Properly
Described As MV Astyanax And Others
1999 (4) SA 405
(SCA) where
he stated as follows at 417:
“
[54]
In my view, this summary of the legal position in relation to the
doctrine of
res judicata
can be accepted provided that the phrase ‘the cause of action’
in (d) above is understood as referring not the cause
of action in
the strict sense but to ‘the same matter in issue’: see
Voet
44.2.4;
Boshoff v Union Government
1932
TPD 345
and
Kommissaris van Binnelandse
Inkomste v ABSA Bank
1995 (1) SA 653
(A).”
[6]
It is in this light of the
Tradax
case
that the legal objection that the plaintiff’s particulars of
claim do not disclose a cause of action must be seen.
[7]
Mr Vutula,
the
legal representative who appeared on behalf of the defendant (the
excipient), brought the case of
Brandt v
Spies
1960 (4) 14 (E) 16H- 17A to the
attention of the Court. This case is authority for the
proposition,
inter alia,
that all the essential terms of the contract of sale of immovable
property agreed upon must be in writing and encapsulated in the
contract itself.
[8]
Similarly, the objection that the plaintiff’s claim is
vexatious must be considered in the context of the authoritative
statements on
res judicata
in the cases already referred to in preceding paragraphs.
[9]
In my view the real issue to be decided by this Court is whether
plaintiff’s action is
res judicata
. If it is found
that the action is
res judicata
it must be quashed without any
further ado.
[10]
The meaning of the plaintiff’s cause of action must be
understood duly guided by the requirements as set out in Rule
18 (4),
that every pleading shall contain a clear and concise statement of
material facts upon which the pleader relies for his
claim with
sufficient particularly to enable the opposite party to reply
thereto. This is what the obligations of the plaintiff
entails
in this case. The plaintiff pleaded at the outset, in
paragraph 4 of the particulars of claim, that during
or about March
2012 the parties concluded a “verbal contract” based on
the following facts:
“
5.
The material and/or implied terms were
inter
alia
the following:
5.1 the Defendant
sells and will transfer to the Plaintiff the property described as
Erf 2452 located at the corner of York Road
and Nelson Mandela Drive
in Mthatha and held under deed of Transfer T411/1989 (“the
property”);
5.2 the Plaintiff
purchases and will take transfer of the property upon payment of the
amount of R12 million in the following manner,
R8 million to be paid
in cash and R4 million to be paid through a bank guarantee;
5.3 the parties, in
order to comply with statutory requirements contained in Section 2 of
the alienation of Land Act – No
68 of 1981 (“the Act”)
in sales involving the sale of land, agreed that Defendant would
instruct its attorney to draw
a Deed of Sale which it would sign and
provide to the Plaintiff for its signature;
5.4 the Defendant
will not sell and transfer the property to any other entity but the
Plaintiff;
5.5
the Defendant would not renew the lease agreement with its tenant
Shell South Africa (Pty) Ltd which was due to end sometime
in June
2012.”
[11]
In paragraph 7 of the particulars of claim breach of the contract is
alleged in the following terms:
“
Defendant
breach (
sic)
the contract by failing or refusing to provide for the Plaintiff with
the written Deed of Sale, signed, for the Plaintiff to sign
in order
for the sale and transfer of the property to the Plaintiff to be
effected in terms of the agreement.”
It
is important to note that the alleged breach has no origin in the
pleaded verbal contract. That is, the verbal contract
of sale
does not stipulate breach clause.
[12]
In paragraph 10 of the particulars of claim the plaintiff went on to
allege damages suffered due to breach in the sum of R9 741 150,00
comprising disbursements paid to an architect and loss of prospective
rentals.
[13]
In court, it was submitted by
Mr
Kubukeli
, who appeared on behalf of the
plaintiff, that the plaintiff’s action is not about the
enforcement of any of the terms of
the oral agreement, but it is a
claim for damages arising from breach of that agreement.
Counsel relied on the case of
National
Sorghum Breweries Ltd (t/a Vivo Africa Breweries) v International
Liquor Distributors (Pty) Limited
[2000] ZASCA 159
;
2001
(2) SA 232
(SCA) contending, based on the statements made in that
case, that this Court must distinguish the present case from the
previous
case between the parties in Case No. 961/2012.
[14]
The oral agreement that is alleged in the particulars of claim was a
subject of litigation in this Court between the same parties
under
Case No 961/2012 where Sangoni JP held, in a well-reasoned judgment,
that the applicant (the plaintiff in this case) for
a relief based on
specific performance of the oral agreement of sale of immovable
property is not entitled to that relief as sought
against the
respondent (the defendant in this case). The ratio for the
decision of the learned JP was that an oral agreement
of sale
violated the provisions of s 2 (1) of the Alienation of Land Act 68
of 1981 (the Act), which read:
“
No
alienation of land after the commencement of this section shall,
subject to provisions of Section 28, be of any force or effect
unless
it is contained in a deed of alienation signed by the parties
thereto, or by their agents acting on their written authority.”
[15]
In the case of
National Sorghum Breweries, supra,
the
appellant concluded three written agreements in terms of which the
respondent had obtained the right to distribute appellant’s
product for a sum of R150 000,00. In a dispute that
followed, the respondent instituted action in the Magistrate’s
court claiming re-payment of R150 000,00 (the restitutionary
claim), and it was successful. The respondent brought a
second
action in the High Court against the appellant claiming damages
suffered as a result of an alleged breach of contract.
In a
special plea of
res judicata
, the appellant contended that the
second action had been disposed off in the magistrates’ court.
The special plea was
dismissed on the ground that the claims of
restitution and damages were two separate causes of action. In
the present matter
Mr Kubukeli
submitted, similarly, that the
special plea of
res judicata
must fail because the plaintiff’s
claim for damages is based on a separate cause of action.
[16]
Mr Kubukeli
did not make the point quite clearly if the claim for damages is
based on the pleaded verbal contract. I say this because
the
pleaded contract is one of sale of immovable property.
Nevertheless, if reliance was meant to be an initial contract
to
conclude the agreement of sale as deciphered from the line that
appears in paragraph 5.3 of the particulars of claim namely:
“the
parties in order to comply with statutory requirements contained in
section 2 of the Alienation of Land Act No 68 of
1981 (the Act) in
sales involving the sale of land, agreed that Defendant would
instruct its attorney to draw a Deed of Sale which
it would sign and
provide to the Plaintiff for its signature” the case of
Hirschowitz v Moolman And Others
1985
(3) SA 739
(A) is the answer.
[17]
The reading of the
Hirschowitz
case
, supra,
shows that the initial agreement of the kind as referred to by
Mr
Kubukeli
is classified as a
pactum
de contrahendo,
defined in law as an
agreement to make a contract in the future. In
Hirschowitz
the Appellate Division had to deal with enforceability of the
tenant’s right of occupation which was incorporated in the
agreement of lease. The following statement of law was made at
766C-D (per Corbett JA):
“
In
my view the grant of a right of pre-emption also constitutes a kind
of
pactum de contrahendo
,
the conclusion of the “second” contract being dependant
on the contingencies mentioned above. In general a
pactum
de contrahendo
is required to comply
with the requisites for validity, including requirements as to form,
applicable to the second or main contract
to which the parties bound
themselves;
Montrose Diamond Mining Co v
Dyer
1912 TPD 1
at 5.”
[18]
Corbett JA then said, in the
Hirschowitz
case,
supra,
at 767G-H”
“
It
seems to me that in order that the holder of a right of pre-emption
over land should be entitled, on his right maturing and on
the
grantor failing to recognise or honour his right, to claim specific
performance against the grantor (assuming that he has such
a right),
the right o pre-emption itself should comply with the Formalities Act
(Act 71 of 1969]”.
[19]
The case of
Horschowitz
is in all fours with the present case
on the law. There the court dealt with the provisions of s 1
(1) of the Formalities
in respect of Contracts of Sale of Land Act 71
of 1969, the precursor to s 2 (1) of Act 68 of 1981. The two
statutes are
identical in terms. Section 1 (1) of the
Formalities Act reads as follows:
“
(1)
No contract of sale of land or any interest in land (other than
lease, myripacht or mining claim or stand) shall be of any force
or
effect if concluded after the commencement of this Act unless it is
reduced to writing and signed by the parties thereto or
by their
agents, acting on their written authority.”
[20]
In my view the first or initial contract would be hit by the
provisions of s 2 (1) of Act 68 of 1981 to the extent that an
unwritten contract of sale of immovable property is unenforceable as
already decided by Sangoni JP. The provisions of s 2
(1) of Act
68 of 1981 are, in my view, a superable obstacle in the path of the
plaintiff’s claim.
[21]
I must again refer to the statement of the learned JP which I
consider to be holding firm for the purposes of deciding
the present matter. The learned JP stated as follows in his
judgment at para. [18]:
“
The
most significant point is that in the instant case it is a statutory
provision that has not been fulfilled. The effect
of
non-compliance with the requirement of section 2 (1) is that the
contract shall not be “of any force or effect”.
[22]
The cause of action for damages, and its substantive relationship to
the cause of action for specific performance, requires
a closer
examination so as to be understood properly. To succeed in the
second litigation, the current action for damages,
the plaintiff must
allege and prove the following elements of the delict:
(a)
existence of a [written] contract of sale,
(b)
breach of that contract,
(c)
that the claimant has suffered damages,
(d)
a causal link between the breach and damages,
(f)
that the loss was not too remote.
See
Harms:
Amler’s Precedents of
Pleadings,
6
th
Edition at page 101.
[23]
Elements (a) and (b) above are identical to those for the cause of
action in the first litigation. In the second litigation
the
pleaded case in paragraphs 4 and 5 of the plaintiff’s
particulars of claim refers. It will be seen that elements
(a)
and (b) of the cause of action for damages have already been decided
by Sangoni JP in Case No. 961/2012. In particular
element (a)
is the gateway to an investigation of the claim for damages; and
without which it cannot avail the plaintiff to say
that the
particulars of claim disclose a cause of action in law.
Elements (b), (c), (d) and (e) for the claim of damages
cannot swing
an absence of element (a).
[24]
To the extent that the Honourable Judge President has already given a
final judgment between the parties on the subject matter
of
enforceability of the oral contract as alleged by the plaintiff, the
present case is
res judicata.
[25]
The view I hold is that the present case is a repeat of litigation
that was finalised under Case No. 961/2012, and such unwarranted
repeated action constitutes an abuse of court process and harassment
of the defendant. Although harassed, the plaintiff’s
action did not call upon the defendant to engage into extra-ordinary
defensive action. A costs order based on a scale of
attorney
and his own client is not an ordinary remedy. An ordinary costs
order seems to be an appropriate costs order, and
it will be so
ordered.
[26]
I was asked by the parties to decide the costs of the defendant’s
application to compel the plaintiff to discover documents
in terms of
Rule 35. That application was brought on 11 July 2014.
The plaintiff opposed the relief sought but it neither
filed an
opposing affidavit nor heads of argument. The
ex-gracia
opportunity given to
Mr Kubukeli
to argue the merits and costs issues of that application happened by
error in that the Court was misled into believing that the
application had been seriously opposed. In any event, I am
satisfied that the application to compel has merit. But
no
substantive order will be granted in light of the outcome of the
application for exception. The costs of that
application must be decided in favour of the defendant.
[27]
In the result the following order shall issue:
1.
The defendant’s exception
succeeds with costs.
2.
The plaintiff to pay the costs of
the application to compel discovery, including all reserved costs.
__________________
__________________
Z. M. NHLANGULELA
ACTING
DEPUTY JUDGE PRESIDENT
Counsel
for the plaintiff : Adv. L. P. Kubukeli
Instructed by: V.V.
Msindo & Associates
MTHATHA.
Attorney for the
defendant : Mr S. C. Vutula
:
c/o S.C. Vutula & Co
MTHATHA.