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[2013] ZAGPPHC 247
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Inter Africa Carriers CC v Show-Down Tradaing 16 CC t/a Kroondal Garage CC (65353/2011) [2013] ZAGPPHC 247 (16 August 2013)
REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA (REPUBLIC OF SOUTH AFRICA)
Case
no:65353/2011
DATE:16/08/2013
In
the matter between:
INTER
AFRICA CARRIERS
CC
........................................................................
APPLICANT
AND
SHOW-DOWN
TRADAING 16
CC
...............................................................
RESPONDENT
T/A
KROONDAL GARAGE CC
JUDGMENT
BAQWA
J
[1]
On 15 August 2011, a trial took place in which applicant was
represented by Messrs Joop and Driaan Smith with applicant’s
attorney Mr Anton De Beer. In that case the current respondent was
the applicant.
[2]
During the course of the trial the applicant and the respondent’s
respective attorneys negotiated a settlement of the
merits and
quantum of the trial. A draft order was conceived and later made an
order of court. The draft order is annexed to the
applicant’s
papers as annexure “’C”. The terms of the draft
order read as follows:
‘’
Per
ooreenkoms tussen die partye word die volgende bevei verleen:
1.
Die verweerder betaal aan die eiser die bedrag van R1000000-00 (een
miljoen rand), betaalbaar as voig:
1.1.
Die bedrag van R1000 000-00 is betaalbaar in paaiemente van R40
000-00 (veertig duisend rand) per maand, die eerste betaling
te
geskied op 30 September 2011, en daarna voorofop die laaste dag van
elke gevolgende maand.
1.2.
Die bedraag van R1000 000-00 is rentvry buiten soos hier onder
uiteengesit.
2.
Indien die verweerder versuim om enige betaling ingevolge paragraaf 1
stiptelik te betaal, word die bedrag van R1264 923.82 (een
miljoen
twee honderd vier en sestig duisend nege honderd drie en twentig rand
en twee and tagtig sent) tesame met rente teen 15.5%
per jaar vanaf 5
December 2008, minus enige betaling wat die Verweeder reeds aan die
eiser betaal het, onmiddelik opeisbaar en
betaalbaar.,
3.
Die verweerder betaal die eiser se getakseerde, alternatiewelik
ooreengekome party en party koste, welke koste sal insluit die
reistyd en opwagting ten aansien van die konsultasie met Rudi Van Der
Westhuizen te Potchefstroom op 14 Augustus 2011, asook advokaatskoste
ten aansien van sodanige konsultasie.
4.
Alle betalings deur die verweerder word gemaak in die eiser se
prokureur van record, William Tintinger Prokureura, se trustrekoning
met die volgende besonderhede.
Williem
Tintinger Prokureur Trust Rekening
Standaard
Bank Gezina Tak
Rekeningnommer:
013 143 875
Takkode:
014 845
Verwysing:
UK52
5.
Die eiser sal sy samewerking aan die verweerder verleen ten aansien
van enige stappe wat die verweerder mag neem teen Mnr Rudi
Van Der
Westhuizen, dieselfde sal geld ten aansien van Mnr S Venter, die lid
van die eiser, wat sy samewerking aan die verweerder
sal verleen.
6.
Buiten soos hier uiteengesit sal die partye geen verder eise van
welke aard teen mekaar he op datum hiervan. ”
[3]
This is an order which the applicant in the present case seeks to
vary. Applicant seeks to amend certain payment dates contained
in
that order. Applicant failed to adhere to those dates in terms of
which it was to make certain payments to the respondent. Respondent,
acting in terms of the order claimed the full amount payable. When
applicant failed to pay the full amount, respondent issued a
writ of
execution against applicant.
[4]
Simultaneously with the variation which applicant seeks, it also
seeks to set aside the said writ of execution.
[5]
Applicant admits in its founding affidavit that it did not adhere to
the stipulated payment dates because it was not timeously
informed of
the said dates by its then attorney, Anton De Beer. Applicant
subsequently withdrew instructions from the said attorney
ostensibly
because of his omission.
[6]
Indeed the order was made in terms of the agreement reached by the
parties and it reflects such agreement. It is on that basis
that the
respondent states that it would not have entered into the agreement
on the terms the applicant now proposes.
[7]
Applicant is bringing the application in terms of Rule 27(1) of Rules
of Court which reads as follows:
‘
In
the absence of an agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these rules or by an
order of court or fixed by an order extending or abridging any
time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as to it
seems
meet. ”
[8]
The operative phrase in this case with regard to Rule 27(1) is
‘’doing any act or taking any step in connection
with any
proceedings of any nature whatsoever upon such terms as to it seems
meet. ”
Applicant
had to pay certain sums of money on specified dates in terms of the
agreement which was subsequently made an order of
court. Applicant
failed to comply in regard to the very first payment and the order
applicant now seeks to obtain is amend the
payment dates. In other
words, the variation sought is no longer about the proceedings which
have since been finalised. It is about
payment of money. This fact
alone puts this application outside the ambit of Rule 27. The
applicant can therefore not validly bring
this application in terms
of Rule 27.
[9]
Respondent submits that Rule 27(1) and Rule 27(2) has no application
where the court has granted a final judgment in terms of
an agreement
between the parties, disposing of the whole action between the
parties as same is res judicata. Respondent submits
that this court
has no jurisdiction to vary a consensual agreement between the
parties.
[10]
The introduction of the draft order read as follows:
’
Per
ooreenkoms tussen die partye word the volgende bevel verleen. ”
Paragraph 6 of the draft order further reads as follows:
‘’
Buite
soos hierbo uiteengesit sal die partye geen verder eise van welke
aard teevoor mekaar he’ op datum hiervan. ”
Respondent
submits that these terms cannot but point to the absolute
finalisation of the action.
[11]
Rule 42(1) of the Rules of this court provides for a variation of a
court order and sets out the terms on which such variation
may occur:
"42(1)
The court may in addition to any other powers it may have mero motu
or upon application of any party affected rescind
or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
An order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity,
error or
omission;
(c)
An order or judgment granted as the result of a mistake common to the
parties. ”
This
application has however not been brought in terms of Rule 42(1).
[12]
Respondent further submits that the applicant has delayed payment of
R1, 264, 923.82 since 5 of December 2008 and that in the
event of the
court exercising its discretion, it should exercise such discretion
against the applicant.
[13]
Respondent further submits that the applicant is in terms of the
doctrine of res judicata, barred from placing before the court
issues
that that have already been decided upon by the court. Respondent in
making this submission further emphasises the point
that in making
the order, the court was giving effect to the consensual agreement of
the parties. The essence of the submission
is that a variation would
essentially vitiate that consensus.
[14] In Yellow Star Properties 1020
(Pty) Ltd v MEC Deparment of Development Planning and Local
Government, Gauteng 2009(3) SA 577
(SCA) paragraph 21 the Supreme
Court of Appeal held thus :
‘
In
considering the argument, it is necessary to deal briefly with the
principles of res judicata and so called ‘Issue estoppels”
relied on by both sides. The underlying ratio of the exception rei
judicata vel litis finitae is that where a cause of action has
been
litigated to finality between the same parties on a previous
occasion, a subsequent attempt by one party to proceed against
the
other on the same cause of action should not be permitted. In
National Sorghum Breweries v International Liquor Distributors
Olivier JA [2] paragraph 239 at SCA 232 SA(2) stated the requirements
for a successful reliance on the exception be as follows:
‘
The
requirements for a successful reliance on the exception were, and
still are: idem actor, idem reus, eadem res and eadem causa
petendi
This means that the exceptio can be raised by a defendant in a later
suit against a plaintiff who is 1demanding the same
thing on the same
ground’ (per Steyn CJ in African Farms and Townships Ltd v Cape
Town Municipality 1963(2) SA 555(A) et
562A); or which causes to the
same thing, ‘on the same cause for the same relief (per Van Win
sen AJA in Custom Credit Corporation
(Pty) Ltd v Shembe 1972(3) SA
462(A) at 472 A-B; see also the discussion in Kommissaris Van
Binnelandse Inkomste v ABSA Bank BPK
1995(1) SA 653(A) at 664 C-E);
or which also comes to the same thing, whether the ‘same issue’
had been adjudicated
upon (see Horowitz v Brock and Others 1988(2) SA
160 at 179 A-H)”
[15]
The court held further in the Yellow Star Properties 1020 (Pty) Ltd
decision (paragraph 22) that:
‘
It
has been recognised though that the strict requirements of the
exceptio, especially those relating to easdem res or eadem petendi
causa (the same relief and the cause of action) may be relaxed where
appropriate. Where a defendant raises as a defence that the
same
parties are bound by a previous judgment are the same issue (viz idem
actor and eadem quaestio). It has become common place
to refer to it
as being a matter of so-called ‘issue estoppel’. But this
is merely a phrase of convenience adopted
from English law, the
principles of which have not been subsumed into our law, and the
defence remains res judicata. Importantly
when dealing with issue
estoppel, it is necessary to stress not only that the parties must be
the same but that the parties must
be the same but that the same
issue of fact or law which was an essential element of the judgment
on which reliance in place must
have arisen and must be regarded as
having been determined in the earlier judgment. ”
[16]
In casu it is common cause that the parties are the same. The same
issue of fact or law which formed the basis of the order
was the
consensual agreement of the parties. The applicant seeks to use Rule
27 to restructure the agreement which was based on
the consensus of
the parties. The basis of the application is the act or omission of
applicant’s representative, Anton De
Beer. Neither in fact nor
in law does it seem to me proper to visit the impact of such act or
omission on the respondent. It would
be neither logical nor in the
interest of justice to do so. A litigant cannot escape or avoid the
results of his lawyer’s
lack of diligence. If a litigant relies
on his lawyer’s negligence in trying to avoid the consequences
of such negligence,
he cannot pass on the impact of those
consequences to the opposing party in litigation. Granting the
present application would
indirectly pass on the consequences of the
lawyer, Anton De Beer’s action to the respondent.
As
matters stand though and with reference to the legal principle, res
judicata and case law in support thereof I have come to the
conclusion that the applicant has not made out a proper case.
[17]
This conclusion finds support in the case of Fourie NO v Merchant
Investors (Pty) Ltd and Another 2004(3) SA 422(C) in which
the
following is stated:
"A
party having obtained a court order cannot seek to undo the agreement
by seeking to clothe its apparent desire not to be
bound to its end
of the bargain by seeking to appeal against the court order which
made the agreement an order of court. To grant
leave in such
circumstances would have the effect of
granting
a party leave to appeal against its own decision and not decision of
the court. In such circumstances, the court cannot
entertain an
application for leave to appeal against such an order. ” (At
424 H-425A)
[18]
In casu, granting this application would be tantamount to the court
substituting terms which were never contemplated nor agreed
by the
parties. This the court cannot do because the agreement which the
parties entered into embodies their undertakings to each
other and
not to the court. A breach of such undertakings should be dealt with
in terms of the agreement and not by resorting to
an amendment or
variation of the court.
[19]
A similar issue was also dealt with in the case of Wallach v Lew
Geffen Estates CC 1993(3) SA 258(A) at 261 B-D in which Miine
JA
stated as follows:
"There
was accordingly a dispute of fact on the papers in this regard, but
the learned Judge in the Court a quo, Lazarus J,
dealt with it as
follows:
‘
firstly,
she (referring to the appellant) said of her failure to pay the
interest from 6 to 31 March 1990 that she had overlooked
her
obligation to do so. She tied this to a contention that the agreement
was illegible and that she had not yet received a typed
copy as at
the time when she was obliged to perform. She of course had a
handwritten copy, and I find no difficulty in deciphering
clause 3
thereof which requires her to pay interest. But if it is
indecipherable, and if she did not know what she was signing,
she
should not have signed it. Having signed it the rule is caveat
subsriptor. Nor can it be contended pending the receipt of a
transcript. The learned Judge could not possibly have made such an
order as it would amount to a variation of the parties’
agreement which had been made an order of Court. Moreover, the
suggestion of a suspension is not made in respondent’s
affidavit
and it cannot be said that it is a fact in dispute’.
’
A
court therefore ought not to interfere with the parties’
agreement even where such agreement has been made an order of court.
[20]
In the result, I find that the order in case number 33363/09 is final
and dispositive of the matter and that the applicant
is bound by the
order in that case.
It
is accordingly ordered as follows:
20.1.
Respondent’s special plea of Res Judicata is upheld.
20.2.
It is held further that applicant cannot validly bring this
application in terms of Rule 27(1) to vary payment dates with
regard
to proceedings which have been finalised.
19.3.
Applicant’s application is dismissed with costs including costs
of the two counsel. The costs order includes the payment
of costs for
attendance on 27 May 2013 which shall include the cost of one
counsel.
It
is so ordered.
BAQWA
J
(JUDGE
OF THE HIGH COURT)
Counsel
for the applicant: Adv M.A Badenhorst SC
Instructed
by: Magda Kets Attorneys
Counsel
for the respondent: Adv S Wagner SC
Adv
M.C Hartman
Instructed
by: William Tintinger Incorporated