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[2013] ZAGPPHC 233
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Generaal Hendrik Schoeman Laerskool v Bastian Financial Services (Pty) Ltd (A 1100/2010) [2013] ZAGPPHC 233 (2 August 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF THE REPUBLIC
OF
SOUTH AFRICA NORTH GAUTENG, PRETORIA
Case
number: A 1100/2010
DATE:
02/08/2013
In
the matter between:
GENERAAL
HENDRIK SCHOEMAN
LAERSKOOL
......................................................
Appellant
and
BASTIAN
FINANCIAL SERVICES (PTY)
LTD
............................................................
Respondent
JUDGMENT
BAM
AJ
1.
The respondent (Plaintiff in the court a quo) issued summons against
the appellant (Defendant in the court a quo) on a written
contract
entered into between the parties on 2 September 1999, for the leasing
of certain machines, a printer and five copiers.
The parties will be
referred to as in the court below. The plaintiff alleged that the
defendant failed to adhere to the terms of
the contract in that the
defendant failed to effect any payment as agreed. In terms of the
provisions of the contract the overdue
amount owed by the defendant
would bear additional interest at a rate equal to 4% per annum above
the prevailing public quoted
base rate of interest at which any one
of the plaintiffs bankers would lend on overdraft. The plaintiff
claimed as follows:
(a)
Confirmation of cancellation of the agreement;
(b)
The defendant delivers the equipment to the plaintiff;
(c)
Payment of the sum of R461 318 33 plus VAT;
(d)
Interest on the aforesaid amount at the rate of prime plus 4% charged
on overdraft facilities by the plaintiffs bankers from
1 October 2000
to day of payment;
(e)
Costs of suite on the attorney and client scale.
2.
Preceding the filing of the defendant's final amended plea, the
matter came before the SCA in regards to certain special pleas
raised
by the defendant. The issue of the special pleas was disposed of by
the SCA. The ruling went against the appellant dismissing
the special
plea in respect of the locus standi of the defendant.
3.
In summary the defendant's plea amounts to the following. The
defendant admitted that it entered into the written agreement as
alleged by the plaintiff but pleaded that the plaintiff was
represented by a certain Mr R Gagiano, representing Alentlnello
Technologies
CC trading as MITA BRITS, allegedly the plaintiffs
agent, and not Mr Haralambous as alleged by the plaintiff. The
defendant pleaded
that it simultaneously entered into a maintenance
contract with the alleged agent of the plaintiff. Mr Gagiano removed
four of
the said machines in about September/October 1999 on the
pretext that the machines became unserviceable, in that regard
repudiating
the agreement and it was accordingly not obliged to pay
any amount to the plaintiff in terms of the agreement. In view of the
finding
of this court it is of no consequence to repeat the balance
of the defendant's pleading. During the trial, after partly cross
examination
of the plaintiffs witness, Mr Haralambous, who conceded
that the agreement had been ceded to Wesbank but claimed that it was
subsequently
re-ceded to the plaintiff, the defendant applied for
leave to amend its pleadings by introducing a new special plea based
on the
allegation that the plaintiff had no locus standi as a result
of the agreement having been ceded to Wesbank. The trial court
refused
the amendment. The plaintiff did not adduce any additional
evidence pertaining to the alleged cession. The defendant then
adduced
the evidence of two employees of Wesbank regarding the
cession and alleged re-cession of the agreement to the plaintiff. The
evidence
entailed that no proof of such re cession could be found.
Counsel appearing for the plaintiff declined to cross examine the two
witnesses on the basis that their evidence was irrelevant.
4.
After having heard evidence the trial court found in favour of the
plaintiff and granted an order compelling the defendant to
pay to the
plaintiff the amount claimed and moro interest. The defendant now
appeals the said decision. In a cross appeal the plaintiff
appeals
the magistrate's decision not to grant the 4% interest claimed in
prayer (d).
5.
The defendant's main ground of appeal is based on the allegation in
its amended plea arising from the evidence, that the plaintiff,
at
some stage prior to instituting the action, ceded the agreement to
Wesbank and did not provide any proof that the agreement
was re-ceded
to it, thus it lacks locus standi to sue the defendant.
6.
There can be no doubt that the agreement was in fact, probably at the
time the defendant failed to comply with the provisions
of the
agreement in respect of the monthly payments, ceded to Wesbank. As
alluded to above, this was conceded by Mr Haralambous.
In this regard
it is common cause that the plaintiff did not refer to any cession or
re-cession of the agreement in its particulars
of claim. It is
further common cause that the plaintiff did not even attempt to
explain the question of cession and recession raised
by the
defendant. As pointed out above the plaintiffs counsel elected to
ignore the evidence adduced by the defendant about the
apparent
non-existence of the re-cession agreement.
The
argument by Mr Cohen appearing for the appellant, that the concession
made by Mr Haralambous, was not a really a concession
but a general
consideration, has no substance. Mr Klopper pointed out that Mr
Haralambous' concession is clearly consistent with
the letter (page
670) addressed to Wesbank, reflecting the situation about the
cession.
7.
It was argued by Mr Klopper for the defendant that, in terms of the
provisions of Rule 6(5)(c) of the Magistrate's Court's Rules,
it was
mandatory for the plaintiff to state in its particulars of claim the
name, address, and description of the cedent at the
date of the
cession, as well as the date of the cession. This argument is sound.
The onus in this respect was on the plaintiff.
See Lief NO v Dettmann
1964 (2 SA 252
(A) and Johnson v Inc General insurance
1983 (1) SA
318
(A).
8.
In this matter the plaintiff in any event had ample opportunity,
after the concession made by Mr Haralambous during cross examination,
to attend to and address the issue. It dismally failed to do so.
9.
It is trite that a cession agreement divests the cedent of her or his
rights against the debtor. See Skjelbreds Rederi AS v Hartless
(Pty)
Ltd 1982(2) SA 710 (A). The only evidence of the cession and
re-cession of the agreement was the concession, an admission
on
behalf of the plaintiff, made by Mr Haralambous that there was in
fact a cession and his allegation of re-cession. There can
be no
doubt that the alleged recession must have been in written form. The
latter allegation by Mr Haralambous was contested by
the defendant
and no written proof was adduced by the plaintiff. By ceding an
agreement the cedent divests itself of the right
to sue on that
agreement. See Picardi Hotels Ltd Thekwini Properties (Pty) Ltd
2008
ZASCA 128
, and Bank of Lisbon and South Africa Ltd v The Master and
Others 1987(1) SA 276 (A) at 294C.
10.
In view of the fact that it was obligatory for the plaintiff that
the issue of cession should have been addressed in its particulars
of
claim and the plaintiff's failure to produce the re-cession
agreement, or explain its failure in that respect, was , in my view,
fatal to the case of the plaintiff. The plaintiff failed to prove
that it had locus standi to institute the action against the
defendant.
11.
The defendant was in law entitled to amend its plea at any stage
before judgment. In the circumstances one would expect that
the
defendant would have moved for an amendment in respect of the issue
of cession. The fact that counsel for the defendant might
have
anticipated, before Mr Haralambous' concession that there was or
could have been a problem with the cession of the agreement,
is of no
consequence. It follows that the magistrate was wrong in not granting
leave to the defendant to amend its pleadings, whether
it would have
been in the form of a special plea or otherwise.
12.
From the evidence it appears that the defendant did not have a
defence on the merits. This, however does not avail the plaintiff.
13.
The record filed by the defendant consists of 8 volumes plus. It is
clear, and it was conceded by Mr Klopper, that more than
50% of the
record contains irrelevant matter. Both counsel were requested to
address us on the issue. There is no acceptable explanation
why
defendant's attorney of record did not comply with Practice Rule 8.3
of this division regarding the inclusion of irrelevant
matter. The
record was unnecessarily burdened with about 500 pages of irrelevant
paperwork directly against the stern warning contained
in the said
practice rule. In terms of the provisions of Practice Rule 8.4, this
court may, mero motu, or upon application by one
of the parties, make
an appropriate punitive costs order. In my view it will be
appropriate in this matter to make such a punitive
costs order.
14.
I therefore propose that the defendant should succeed with its appeal
and that the plaintiff's cross appeal
be
dismissed. Accordingly I suggest that the following order be made.
Order
1.
The appellant's appeal succeeds.
2.
The respondent's cross appeal is dismissed.
3.
The order of the trial court is substituted by the following: The
plaintiffs claim is dismissed with costs.
4.
The respondent is ordered to pay the costs of this appeal.
5.
The appellant is disallowed 50% of its fees for preparing the appeal
record.
A.
J. BAM ACTING
JUDGE
OF THE HIGH COURT I agree, and it is so ordered.
N.
V. KHUMALO
JUDGE
OF THE HIGH COURT 01 August 2013.