About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 297
|
|
Scott v Firstrand Bank Ltd t/a Nissan Finance (30244/2011) [2014] ZAGPPHC 297 (20 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NO:30244/2011
In the matter
between:
ANNA ELIZABETH
SCOTT
......................................................................................................................................................................................................
APPLICANT/DEFENDANT
and
FIRSTRAND BANK
LTD I/a NISSAN
FINANCE
.....................................................................................................................................................................
RESPONDENT/PLAINTIFF
JUDGMENT
KUBUSHI, |
[1] I shall refer to
the parties in this application as they are referred to in the main
pleadings.
[2] In this matter
the defendant has raised an exception to the amended particulars of
claim of the plaintiff on the basis that
the said particulars of
claim are vague and embarrassing, alternatively that they lack
averments necessary to make out a complete
cause of action.
[3] The plaintiff is
opposing the exception and has elected not to remedy and/or remove
the cause of complaint.
[4] It appears from
the papers that the plaintiff sought and was granted leave by this
court to amend his initial particulars of
claim. The defendant had in
that application noted an objection to the amendment on the same
ground as raised in this application.
It is against these amended
particulars of claim that the exception is directed.
[5] It became an
issue at the hearing of the exception whether or not this court is
bound by the order granted in the amendment
application since the
ground of objection raised by the defendant in that application is
the same as that raised in the exception
before me. The ground of
objection in the amendment application was that if the amendment is
allowed it would render the particulars
of claim excepiable. The
defendant has raised the same ground of objection in the exception,
namely, that the amended particulars
of claim are vague and
embarrassing and renders the pleading excepiable. The court in the
amendment application allowed the amendment
on the basis that such
amendment will not render the particulars of claim excepiable.
[6]
The order granted in the amendment application is an interlocutory
order. I could not find any authority where the issue of
the
variation of an interlocutory order was decided; nor could counsel
provide me with any authority to that effect. The only judgment
I
found where the Supreme Court of Appeal was enjoined to consider
whether or not the court below had the jurisdiction to vary
an
interlocutory order granted by another judge in the same court was in
Cert Thomas Van
der Merwe v
Simon
Molefe Pitje
(232/11)
[2012] ZASCA 50
(30 March 2012). However, the question was eventually
found not necessary for consideration.
[7] I have to agree
with both counsel that the principle and ground of objection raised
in the present application is the same as
was raised in the amendment
application. My view is that, even though the test applied in the two
applications differs, the court
has already pronounced itself on the
ground of objection and as such this court is bound by that order.
This court is not competent
to vary in any way an order granted by
another court unless there is a formal application for its variation.
No such application
is before this court.
[8] Even if I am
wrong to conclude that this court is bound by the order granted in
the amendment application, in my opinion, the
exception still stands
to be dismissed.
[9] The gravamen of
the defendant’s exception is that in terms of this amendment it
is not clear whether Nissan is a trade
name of FirstRand or a
division of Wesbank and as such the citation is confusing,
contradictory, difficult to understand, unintelligible
and
incomprehensible. The contention by the defendant’s counsel is
that paragraphs 1.1 and 1.2 of the amended particulars
of claim
cannot stand together as they are mutually destructive. According to
counsel from the reading of the two paragraphs it
is not clear who
the plaintiff is and as such the defendant is not provided with
sufficient particularity to enable her to plead
thereto. Consequently
the defendant seeks an order upholding the exception setting the
amended particulars of claim aside.
[10]
Under our law no juristic person is capable of being divided into a
number of separate juristic personalities. Thus where reference
is
made to a business which is conducted under a trading name and the
words ‘Limited’ or ‘(Proprietary) Limited*
are not
affixed thereto, no grounds exists for drawing an inference that the
business as an entity enjoys corporate personality.
If in addition
thereto it is said that the business is a division of a named
company, registered according to the laws of the Republic,
there is
only one possible further inference and that is that the incorporated
company trades through the medium of the business
under that
particular trading name. See
Two
Sixty Four Investments (Pty) Ltd v Trust Banh
1993
(3) SA 384
(WLD) at 385G - H.
[11] The defendant’s
counsel is in my view wrong to want to infer that because it is
alleged that Nissan Finance is a division
of Wesbank therefore
Wesbank can also be considered to be a holding company. This is
dearly a wrong inference. It is apparent from
the particulars of
claim and from the instalment sale agreement (the agreement) attached
to the particulars of claim that Wesbank
is but a division of
FirstRand Bank. The words ‘Limited’ or ‘(Proprietory)
Limited” are not affixed to
Wesbank. FirstRand bank, to which
the words ‘Limited* are affixed is the holding company.
Consequently there can be no other
interpretation, which according to
defendant is confusing, other than the one I have given.
[12]
An incorporated company may trade through the medium of a number of
businesses each with a separate trade name. None of them
will thereby
acquire separate corporate personality. See the judgments in
Two
Sixty Four Investments
(Pty)
Ltd v Trust Bonk
above
at 385I and
Mega
Flex, "n Divisie van Sentrachem
Bph
&
/7
Ander v
White River Motor Trading (Edms) Bpk
[1996]
1 All SA 161
(T) at 163f - h.
[13] In this
instance, in its amended particulars of claim the plaintiff is cited
as FirstRand Bank Limited t/a Wesbank and Nissan.
It is further
stated as follows in paragraph 1.2 of the amended particulars of
claim:
“
FirstRand
Bant? trades as Wesbanfe (a division of FirstRand Bank Limited).
Wesbank in turn trades as Nissan Finance (a division
of Wesbank).”
[14] It is clear
that Wesbank and Nissan are trading names for FirstRand Bank Limited.
The use of the word “division”
imparts that Wesbank is a
division of FirstRand Bank Limited which conducts business under that
trade name whilst wholly owned
by FirstRand Bank Limited. On the
other hand “division” also denotes that Nissan Finance is
a division of Wesbank.
Wesbank and Nissan Finance as such do not
enjoy corporate personality separate from FirstRand Bank Limited. The
three are actually
one and the same company with FirstRand Bank being
the one enjoying corporate identity.. FirstRand Bank is therefore
correctly
cited as the plaintiff. Both counsel are agreed that only
the holding company need be cited in litigation. There is nothing, in
my view, that would bar FirstRand from trading as Nissan Finance even
though Nissan is said to be a division of Wesbank. As it
has been
said in the judgments I referred to above, an incorporated company
may trade through the medium of a number of businesses
each with a
separate trade name. The particulars of claim correspond with the
instalment sale agreement attached to the particulars
of claim as
well. At the top page of the agreement it is stated “Nissan
Finance a division of Wesbank a division of FirstRand
Bank Limited”.
[15] I find the
submission by the defendant that the distinction is not clear, and
renders the particulars of claim vague and embarrassing,
to be
without merit. On that basis the exception should be dismissed. The
exception is dismissed with costs.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances
HEARD
ON THE: 11 MAY 2014
DATE
OP JUDGMENT: 20 MAY 2014
PLAINTIFF!*
COUNSEL: ADV J A DU PLESSIS
PLAINTIFFS’
ATTORNEY:HACK STUPEL & ROSS
DEFENDANTS
COUNSEL:ADV A J SCHOEMAN
DEFENDANTS
ATTORNEY :G P VENTER ATTORENYS