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[2013] ZAFSHC 147
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St Clair Cooper NO and Others v Dipalemo Investments (Pty) Ltd and Others; In re: St Clair Cooper NO and Others v Dipalemo Investments (Pty) Ltd and Others (3523/2012) [2013] ZAFSHC 147 (29 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3523/2012
In the matter between:
CHAVONNE BADENHORST ST CLAIR
COOPER N.O.
1
st
Applicant
LUKE BERNARD SAFFY N.O.
2
nd
Applicant
DONOVAN THEODORE MAJIEDT N.O.
3
rd
Applicant
(In their capacities as liquidators of
EFCOR BOERDERY (PTY) LTD (IN
LIQUIDATION)
Estate No
B261/2006
)
DAWID PIETER BADENHORST N.O.
4
th
Applicant
BAREND JOHANNES JACOBUS
BEZUIDENHOUT N.O.
5
th
Applicant
ETHNE MARY VAN WYK N.O.
6
th
Applicant
(In their capacities as curators of
the insolvent estate of
CORNELIUS ENGELBRECHT
Estate No
B90/2010
and
DIPALEMO INVESTMENTS (PTY) LTD
1
st
Respondent
DIAU DANIEL MOSIA N.O.
2
nd
Respondent
RUTH KELEBOGILE MOSIA N.O.
3
rd
Respondent
KENOSI EZRA MAHOMA N.O.
4
th
Respondent
(In their capacities as trustees of
the
TOCHGEKREGEN TRUST
IT
271/2009
)
EFCOR-DIPALEMO PROPERTY (PTY)
LTD
5
th
Respondent
MARIA JOHANNA ENGELBRECHT
6
th
Respondent
ANDRIES GUSTAV LE GRANGE N.O.
7
th
Respondent
(In their capacities as trustees of
the
LIONSVLEY TRUST
IT 1042/97
)
CORNELIUS ENGELBRECHT N.O.
8
th
Respondent
(In their capacities as trustees of
the
WELBEDACHT TRUST
IT 1035/07
_______________________________________________________
IN RE:
CHAVONNE BADENHORST ST CLAIR
COOPER N.O.
1
st
Plaintiff
LUKE BERNARD SAFFY N.O.
2
nd
Plaintiff
DONOVAN THEODORE MAJIEDT N.O.
3
rd
Plaintiff
(In their capacities as liquidators of
EFCOR BOERDERY (PTY) LTD (IN
LIQUIDATION)
Estate No
B261/2006
)
DAWID PIETER BADENHORST N.O.
4
th
Plaintiff
BAREND JOHANNES JACOBUS
BEZUIDENHOUT N.O.
5
th
Plaintiff
ETHNE MARY VAN WYK N.O.
6
th
Plaintiff
(In their capacities as curators of
the insolvent estate of
CORNELIUS ENGELBRECHT
Estate No
B90/2010
and
DIPALEMO INVESTMENTS (PTY) LTD
1
st
Defendant
DIAU DANIEL MOSIA N.O.
2
nd
Defendant
RUTH KELEBOGILE MOSIA N.O.
3
rd
Defendant
KENOSI EZRA MAHOMA N.O.
4
th
Defendant
(In their capacities as trustees of
the
TOCHGEKREGEN TRUST
IT
271/2009
)
EFCOR-DIPALEMO PROPERTY (PTY)
LTD
5
th
Defendant
MARIA JOHANNA ENGELBRECHT
6
th
Defendant
ANDRIES GUSTAV LE GRANGE N.O.
7
th
Defendant
(In their capacities as trustees of
the
LIONSVLEY TRUST
IT 1042/97
)
CORNELIUS ENGELBRECHT N.O.
8
th
Defendant
(In their capacities as trustees of
the
WELBEDACHT TRUST
IT 1035/07
HEARD ON:
22 AUGUST 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
_______________________________________________________
DELIVERED ON:
29 AUGUST 2013
_______________________________________________________
INTRODUCTION
[1] The six applicants
who are, between them, liquidators of a company in liquidation and
curators of an insolvent estate issued
summons, as plaintiffs,
against the respondents, as defendants, in a defended action pending
before this court for recovery of
alleged balance of prorated global
purchase price in respect of seven pieces of land sold to the
respondents by such a company
and the insolvent. No relief is sought
in both that action and in the instant application against the sixth,
seventh and eighth
respondents who are only cited in the light of a
substantial interest which they have in the proceedings. No papers
have, thus,
been filed for and on their behalf with the proceedings
being, in effect, limited to the first five respondents (the
respondents).
[2] In the plea filed for
and on their behalf, the respondents deny that the funds advanced in
respect of respective purchase prices
were allocated to the
properties bought on a pro rata basis leaving a shortfall in respect
of all such properties as averred by
the applicants and assert that:
“
5.7.2.1.
Before registration of transfer, it was agreed between Mr Engelbrecht
(representing also Efcor Boerdery (Pty) Ltd, the
trustees of
Lionsvley Trust and of Welbedacht Trust on the one hand and the
defendants on the other (represented by Mr Mosia and
Ms Naudé)
that the available funds in respect of the different transactions
shall be allocated as follows:
5.7.2.1.1. A government grant and
term loans from Senwes Limited, in respect of the full purchase
prices payable by Tochgekregen
Trust for the purchase of the farms
Tochgekregen, Broedersrust, Remaining Extent of Welbedacht, and
Welbedacht, Portion I (i.e.
the sales in annexure ‘B’ and
‘C’ to the Plaintiffs’ Particulars of Claim);
5.7.2.1.2. Any balance excess of
such funds then to be applied towards the sales in annexure ‘A’
to the Particulars
of Claim, in the following order:
5.7.2.1.2.1. Firstly, towards the
purchase of the farms Rosarum and Portion 5 of the farm Georgina by
Dipalemo Investments (Pty)
Ltd; and
5.7.2.1.2.2. Any remaining balance,
towards the purchase of Portion 2 of the farm Georgina by the fifth
defendant from Efcor Boerdery
(Pty) Ltd.
5.7.2.2. Funds were in fact so
allocated at the time of transfer, which left a shortfall of
R5,694,069.00 in respect of the purchase
of the farm Georgina Portion
2, while the purchase prices in respect of all other transactions
were fully paid or accounted for.
5.7.2.3. This debt of the fifth
defendant was regulated by annexure ‘D’.
5.7.2.4. The defendants deny a
so-called ‘gesamentlike oordragstransaksie’.
5.7.2.5. The defendants deny that
the fourth and/or fifth defendants had sold land or that they were
paid in respect thereof.
5.8 ………………………
5.9.2. The allocation of funds in
respect of the various transactions was done in terms of the
agreement pleaded in paragraph 5.7.2.1
supra
.
Annexure ‘D’ to the Particulars of Claim regulated some
further ramifications thereof.
”
[3] The applicants feel
that the plea does not comply with the provisions of Rule 18(6) of
the Uniform Rules of Court (the Rules)
insofar as it does not specify
if the alleged agreement was oral or in writing, among others, and,
as such, delivered a notice
in terms of Rule 30(2) (b) of the Rules
requiring the respondents to rectify the alleged irregularity within
the prescribed 10
day period. The respondents, thereupon, filed a
notice of intention to amend the plea to,
inter alia
, reflect
that the alleged agreement was verbal. The applicants retorted by
giving notice of objection to the proposed amendment.
The
respondents, thereafter, did not pursue the matter further with the
result that the notice of amendment eventually lapsed.
[4] The applicants now
approach this court in terms of Rule 30(2)(c) of the Rules for an
order:
“
1. Dat
kondonasie aan die Applikante verleen word vir die nie-voldoening aan
die bepalings van Hofreël 30(2)(c) van die Eenvormige
Hofreëls.
2. Dat die Verweerskrif van die
Eerste tot Vyfde Verweerders gedateer 6 Februarie 2013 geskrap word
as synde ‘n onreëlmatige
pleitstuk soos bedoel in Hofreël
30(1) van die Eenvormige Hofreëls gelees met Reël 18(12)
gelees met Reël 18(6)
van die Eenvormige Hofreëls.
3. Dat die Eerste tot Vyfde
Respondente die koste van die aansoek betaal, gesamentlik en
afsonderlik, die een betaal die ander kwytgeskeld
te word.
”
[5] At the commencement
of the hearing of the application Mr Maritz, for the respondents,
intimated that the application for condonation
of the late
application herein was not being opposed and, as such, the delay was
effectively condoned to the extent necessary.
ISSUE IN DISPUTE
[6] The parties are in
dispute over whether or not the respondents rely on a contract in
their defence that the funds advanced in
respect of the purchase
prices of the properties were allocated in such a manner as to leave
a shortfall in respect of only one
property as opposed to all the
seven properties involved.
CONTENTIONS FOR THE
APPLICANTS
[7] On behalf of the
applicants Mr Zietsman submits that it is clear from the aborted
attempt by the respondents to amend the plea,
as well as references
to the alleged agreement in the plea, that the alleged agreement is a
“link in the chain” of
their defence. It is further
contended for the applicants that in the absence of the impugned
paragraphs the plea would be excipiable
for failure to comply with
Rules 18(4) and 18(5) and objectionable for constituting bare denial.
In Mr Zietsman’s view the
paragraphs in question are, as such,
a vital link in the respondents’ defence.
[8] Mr Zietsman,
furthermore, submits that the applicants followed the letter of Rule
30(1), as they were entitled so to do, when
they moved for the whole
plea to be set aside and the question as to whether it falls to be
set aside in its entirety or in part,
resides within the discretion
of the court in terms of Rule 30(3).An order setting aside only the
relevant paragraphs would, in
Mr Zietsman’s view, signify
substantial success on the part of the applicants entitling them to
their costs.
CONTENTIONS FOR THE
RESPONDENTS
[9] The respondents
contend, through Mr Maritz, that reference to the agreement on
allocation of available funds is a matter of
historical background
and does not serve as a shield in the respondents’ defence. The
essence of the respondents’ defence,
so the argument goes, is
the actual allocation of funds, which happened in the manner set out
in the plea. The respondents do not
need to rely on the agreement in
question because the allocation has already taken place, Mr Maritz
points out.
[10] The plea sets out a
proper defence even in the absence of the impugned paragraphs insofar
as it still puts the applicants to
proof of the manner in which the
allocation took place. It, therefore, does not fall to be set aside
in whole if and when the court
finds that references to the agreement
in question are irregular, in Mr Maritz’ view. It is, further,
submitted that a finding
that only the impugned paragraphs are
irregular and fall to be set aside entitles the respondents to costs
on the basis of substantial
success on their part.
APPLICABLE LEGAL
PRINCIPLES
[11] Only where a party
relies on a contract, written or verbal, in its pleading is it
incumbent on it to give the specifications
set out in Rule 18(6) of
the Rules. A party relies on a contract if the same is a “link
in the chain” of such a party’s
case in the sense that,
for its case to succeed, it needs to establish such a contract. (See
Moosa and Others NNO v Hassam and Others NNO
2010 (2)
SA 410
(KZP).)
[12] Reference to a
contract in a party’s pleading in circumstances where such a
party unequivocally disavows reliance on
the same does not render
such an agreement a “link in the chain” of such a party’s
case notwithstanding the fact
that the contract in question would, in
law, found a cause of action. (See
Vorster v Herselman
1982(4)
SA 857(O).)
[13] As the parties are
correctly in agreement, where a pleading is irregular as contemplated
by Rule 18(12) read with Rule 30(1)
of the Rules, the court has a
discretion to either set aside the pleading in its entirety or in
part. (See Rule 30(3) of the Rules.)
[14] The question of
costs is in the discretion of the court and fairness is the
overriding concern in the determination of the
question of costs. The
practice is that costs generally follow the event.
APPLICATION OF THE
LAW AND FINDINGS
[15] As Mr Maritz
correctly submits, on the pleadings as they presently stand, the
question for determination by the trial court
is effectively whether
or not the funds were allocated on a pro rata basis as contended by
the applicants. Put differently, the
dispute between the parties
relates to how the funds were allocated when transfer of the
properties took place.
[16] In my view the point
of departure when deciding whether or not the respondents rely on the
alleged agreement in their defence
is the determination of the
question whether or not an answer as to the existence or absence of
such an agreement signifies the
end of the enquiry into how the funds
were allocated. A positive answer to such a question does not
per
se
dispose of the issue as to the actual allocation. The same
applies equally to a negative answer for one would still have to
determine
how the funds were actually allocated in spite of the
existence or absence of such an agreement. Put differently, the
question
is generally whether or not,
ex facie
the relevant
pleading, a party’s cause of action or line of defence is
complete and apparent without reference to the agreement
in question.
If not, then and only in that event is such an agreement a “link
in the chain” of such a party’s
case.
[17] As Mr Maritz
correctly and effectively submits, the respondents rely on the
alleged actual allocation of funds as a shield
in their defence in
the same way that the applicants wield the same as a spear in their
onslaught against the respondents. A perusal
of the impugned
paragraphs in the context of the plea as a whole indicates that
assertions as to the existence of the alleged agreement
serve only as
the alleged basis for the alleged allocation as opposed to prove of
the same. Mere reference to a contract in a party’s
pleading
does not, without more, render such a contract an integral pillar of
that party’s case. Whether or not the alleged
contract is a
sine qua non
in a party’s case depends on how the
particular pleading is couched with reference to the alleged
agreement. In my judgment
and as effectively contended for the
respondents, the respondents’ line of defence is complete
without reference to the alleged
agreement.
[18] The fact that there
was an aborted attempt on the part of the respondents to amend the
plea in order to bring it in line with
the prescripts of Rule 18(6)
does not, in my judgment, change the status of the alleged agreement
in the respondents’ defence.
[19] There is nothing
before me to justify a departure from the general practice with
regard to costs.
ORDER
[20] The application is
dismissed with costs.
______________
L. J. LEKALE, J
On behalf of applicants:
Adv P. Zietsman SC
Instructed by: EG Cooper
Attorneys
BLOEMFONTEIN
On behalf of first to
fifth respondents: Adv J.D. Maritz SC
Instructed by: Lovius
Block
BLOEMFONTEIN
/spieterse