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[2014] ZAGPPHC 292
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Mc Welthagen Transport (Pty) Ltd v Pride Milling CO (Pty) Ltd (A765/2013) [2014] ZAGPPHC 292 (25 April 2014)
IN THE
HIGH COURT OF
South Africa
GAUTENG
DIVISION, PRETORIA
Case
No: A765/2013
Date
heard: 27 March 2014
Date
of judgment: 25 April 2014
In
the matter between:
MC
WELTHAGEN TRANSPORT (PTY)
LTD
...................................................
Appellant
And
PRIDE
MILLING CO. (PTY)
LTD
..................................................................
Respondent
JUDGMENT
PHATUDI
J:
[1]
The appellant was the plaintiff in the
court a
quo
. The appellant appeals
against the magistrate’s court order upholding the respondent’s
(the defendant in the court
a
quo)
special plea. The respondent specially pleaded that the appellant’s
claim exceeds the jurisdiction of the magistrates’
court by
virtue of the appellant’s splitting of claims as envisaged in
section 40 of the Magistrates Court Act, 32 of 1944.
[2]
The appellant caused issue of summons
against the respondent alleging that:
‘1.1
During October 2002 at Ogies the parties entered into an agreement in
terms of which the plaintiff undertook to remove
and convey certain
goods from and to various destinations for and on behalf of the
defendant from time to time.
1.2
The parties agreed that the plaintiff would be paid an amount for
such removal and conveyance from time to time, payment to
be made at
the end of every month during which the removal and conveyance was
done.
2.1
At the special instance and request of
the defendant, the plaintiff duly removed and conveyed goods for and
on behalf of the defendant
during the period January 2006 to June
2008.
2.2
The defendant has failed to pay to the
plaintiff the agreed amount or any other amount resulting in the
plaintiff having several
claims against the defendant in respect of
the various months during which goods were conveyed and removed.
Particulars of the
plaintiffs claim are set out below.’
[1]
[3]
The appellant formulated claims
1
to
20
in
accordance with months upon which “goods were conveyed and
removed”
[2]
at the “defendant’s special instance and request”
[3]
[4]
The respondent specially pleaded that
'A1.
The plaintiff has formulated a cause of action on which 20 claims are
based
on the same cause of action ...
2
.
3.
3.
In terms of section 40 of the
Magistrates Court Act the splitting of claims are disallowed if the
cause of action is the same relating
and every claim if the total
amount claimed exceeds the jurisdiction of the Magistrates Court and
therefore the Plaintiff is not
entitled to attempt to claim the
amount of R293 129.88 by splitting the claims.’
[4]
[5]
Section
40
of Magistrates Court Act
32
of
1944
provides
that
‘[a] substantive claim
exceeding the jurisdiction may not be split with the object of
recovering the same in more than one
action if the parties to all
such actions would be the same and the point at issue in all actions
would also be the same.’
[6]
in Badenhorst v
Alum Konstruksie en ‘n Ander
[5]
the court, in reliance and in reference to Mahomed and Son v
Mahomed
[6]
,
found that
‘a litigant is
entitled, subject to the prohibition against the splitting of claims
as provided for in section 40, to institute
multiple principle claims
in the same action even if the total value of the claims is more than
[R100, 000.00].’
[7]
[7]
It was further found that the
Magistrates Court does have the jurisdiction where the
‘
total
value in excess of [R100,000.00] can be claimed
in
one action provided that each item is claimed under separate causes
of action and, naturally, provided that the value of the
things
claimed in each cause of action does not exceed [R100.000.00]’
[8]
[8]
A cause of action
is defined as
‘the phrase
ordinarily used to describe the set of material facts relied upon to
establish the debt.’
[9]
[9]
It is not in dispute that the goods were
conveyed and removed by the appellant at the respondent’s
special instance and request.
It is further not in dispute that such
goods were conveyed and removed from time to time. Such conveyance
and removal of goods
by the appellant at the instance of the
respondent established the debt.
[10]
The court a
quo
upheld the special plea with reliance on paragraph 9 of the agreement
concluded by the parties. The paragraph stipulates:
‘9.1
Payment by the Company to the Carrier will be made monthly 30 days
after date of the monthly statement of the Carrier.
Any discrepancies
or amounts in dispute may be withheld by the Company pending
clarification between the Company and the carrier,
provided that only
the amounts in dispute shall be withheld and the remainder of the
account shall be paid by due date.
9.2
A reconciled monthly statement must be
submitted by the seventh day of the next month.
[10]
[11]
The respondent’s counse&submission
that from the reading of the appellant’s pleadings it is clear
that the appellant
is relying on one amount that is due and the
deduction of the total amount of credits from that one amount,
confirms the single
cause of action upon which the appellant’s
case is based, has no merit. It is clear from the reading of the
particulars of
claim that the appellant would remove and convey goods
from time to time for and on behalf of the respondent. It is further
clear
that payment for such conveyance would be made at the end of
every month during which the removal and conveyance was done.
[12]
In my evaluation of the pleadings and
the contract relied upon, I find reliance by the trial court on
clause 9.1 of the agreement
to be a misdirection in that the payment
method by the creditor to the debtor does not constitute a cause of
action. As I already
indicated above, a cause of action is a set of
material facts relied upon to establish a debt.
[11]
[13]
The appellant’s cause of action is
the conveyance or transportation of goods from and to various
destinations from time to
time at the instance of and on behalf of
the respondent. Each transaction, in my view, constitutes a cause of
action establishing
a debt. The appellant rendered services that
culminated in the appellant having several claims against the
respondent in respect
of
the various months during which goods were
conveyed and removed.
[12]
[14]
It is further my view that the
appellant’s claims 1 to 20 are claims for the amounts based on
causes of action that are compounded
monthly as a result of every
conveyance of goods by the appellant at the instance of the
respondent within the said month. The
said debt (causes of action)
would then be payable monthly by the respondent as agreed between
themselves and not per transaction.
The appellant set out the monthly
debts which the respondent was liable to pay.
[15]
The respondent, in my view, conceded the
allegations giving rise to the causes of action in respect of the
appellant’s claims.
This is demonstrated by its special plea,
singling out, by way of prescription, the first claim in respect of
services rendered
in January 2006. The respondent’s counsel
accepted on my enquiry that the singling out of the said claim is an
indication
that one may construe
that as a concession that different claims
existed as opposed to one amount that was due as contended by the
respondent.
[16]
In the final analysis, I find no
splitting of claims as specifically pleaded by way of special plea.
The appellant is thus entitled
to institute its multiple claims in
the same action arising from different causes of action, even if the
total value of the claims
is more than R100, 000.00. The appellant’s
appeal must, on this basis alone, be upheld.
[17]
In my view costs should follow the
event. The appellant succeeds with the appeal and is entitled to the
costs of the appeal.
[18]
In the result the following order is
made.
Order:
1.
The appeal is upheld
2.
The Magistrate’s order upholding
the special plea is set aside and replaced with the following:
“The
defendant’s special plea relating to the splitting of claims as
envisaged in terms of section 40 of Magistrates
Court Act is
dismissed with costs.”
A
MX.
Pfiatudi Judge of the High Court
I
agree.
C.P.
Rabie Judge of the High Court
On Behalf of the Appellant:
De Jager Kruger & Van Blerk
C/O
Hack, Stupel & Ross 2
nd
Floor,
Standard
Bank Chambers Church Square Pretoria
Adv.
A.P. Bruwer
On
Behalf of the Respondent: JP Van Schalkwyk
C/O
Van Der Walt & Hugo 356 Rosemary Street Lynnwood Pretoria
Adv.
A.R. Van der Merwe
[1]
Plaintiffs Particulars of Claim - page 4 record
[2]
Plaintiff/appellant Particulars of Claim - page 4 paragraph 2.2
[3]
Plaintiff/appellant Particulars of Claim - page 4 paragraph 2.1
[4]
Defendant/respondent special plea - page 75
[5]
1986(2) SA 255 (T)
[6]
1959 (2) SA 688 (T)
[7]
Badenhorst v Alum Konstruksie en ‘n Ander 19886 (2) SA 255 (T)
headnote at page 266 E - G
[8]
Ibid. See as well Section 29(1 )(g) of Magistrate Court Act 32 of
1944
[9]
Aeronexus (Pty) Ltd v Firstrand Bank Limited T/AWesbank (249/2010)
[2011] ZASCA21 (17 March 2011) paragraph [13]
[10]
Record - page 67 line 10-20; Judgment- page 137 line 7-17
[11]
See Aeronexus Pty Ltd v Firstrand Bank - opcit fn 9
[12]
See Particulars of Claim - page 48 paragraph 2.2