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[2013] ZAFSHC 221
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Bridgestone South Africa (Pty) Ltd v SA Truck Bodies (Pty) Ltd (842/2008) [2013] ZAFSHC 221 (12 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 842/2008
In
the matter between:
BRIDGESTONE
SOUTH AFRICA (PTY) LTD
…..........................................................
Plaintiff
and
SA
TRUCK BODIES (PTY) LTD
….............................................................................
Defendant
JUDGMENT:
DAFFUE, J
HEARD
ON:
21 NOVEMBER 2013
DELIVERED
ON:
12 DECEMBER 2013
INTRODUCTION
[1]
This is a belated application in terms whereof the plaintiff seeks
leave to amend its plea to defendant’s counterclaim.
The
application is opposed by the defendant.
THE
PARTIES
[2]
Plaintiff is Bridgestone South Africa (Pty) Ltd, a manufacturer and
wholesaler of automotive tyres. Defendant is SA Truck Bodies
(Pty)
Ltd. Advocate J D Maritz SC appeared for plaintiff in this
application for leave to amend as well as in the main action
referred
to
infra
. Advocate S J Reinders appeared for defendant
in this application as well as in the main action.
THE
RELIEF SOUGHT
[3]
Plaintiff seeks an order in terms whereof a new paragraph 7A be
inserted and its plea to defendant’s counterclaim amended
accordingly, which new paragraph reads as follows:
“
7A.
PRESCRIPTION
7A.1 In paragraphs 6
and 7 of the defendant’s Counterclaim, read with annexure “A”
thereto, the defendant bases
its Counterclaim on purchases commencing
on 1 March 2002 until 30 November 2007.
7A.2 The
Counterclaim was instituted on 3 December 2008, by which time any
claim to rebates dating more than three years before
institution of
the Counterclaim would have become prescribed in terms of
Section 11
of the
Prescription Act, 68 of 1969
.
7A.3 In the
premises, the defendant is precluded from basing his Counterclaim on
any sales, as reflected in annexure “A”,
predating 4
December 2005.”
HISTORICAL
BACKGROUND
[4]
On 19 February 2008 plaintiff instituted action against defendant,
claiming payment of the amount R1 220 256,00, being
the
purchase price of tyres sold by plaintiff to defendant from time to
time during the period 2001/2002 to 2007, plus interest
and costs.
[5]
Defendant not only defended the claim, but filed a counterclaim in
terms whereof it claimed the amount of R4 043 326,31,
being
in respect of a rebate of R70,00 per tyre purchased from plaintiff
during the aforesaid period to which it claimed to be
entitled to in
terms of the parties’ agreement and alleging that a total of
60 854 tyres were purchased during the period.
[6]
The real bone of contention between the parties was whether the
agreement between them included a term pertaining to the R70,00
rebate a tyre. On 22 July 2010 a
Rule 37
conference was held
attended to by both the aforesaid counsel and their instructing
attorneys whereupon the following agreement
was entered into:
“
4.
The main disputes
:
(a)
The parties agree that the essential
dispute between them is:
It is common cause
that plaintiff has paid defendant a discount of R200,00 per tyre
bought by Defendant from plaintiff and the main
dispute hereof is,
‘Had it ever been agreed that the plaintiff would pay to the
defendant a rebate of R70,00 per tyre, in
addition to the R200,00
discount, purchased from the plaintiff by the defendant’.
(b)
It is agreed that, if it is found not to
have been the case, judgment for R1 200 256,00 plus
interest and costs in favour
of the plaintiff should automatically
follow. The Counterclaim should then also be dismissed with
costs.
(c)
Should it be found to have been the case
the matter is to be postponed for the determination of the quantum of
the Counterclaim.
5.
Separation of
issues
:
The
defendant proposes the separation of the quantum of the Counterclaim
to be tried at a later stage, after the remaining disputes
had been
decided by the Court.
Response:
The
plaintiff agrees to a separation.”
[7]
The matter went on trial for the adjudication of the issue agreed
upon and on 28 July 2011 Kahn AJ made the following factual
finding
and came to the following conclusion:
“
The
said service had been provided by the Defendant itself via its own
staff, machinery and infrastructure at its own premises in
Bloemfontein and in terms of the agreement; it was entitled to the
fitment and alignment fee of 70.00 rands per tyre. The
question
posed by the parties in the
Rule 37
conference is accordingly
answered in the affirmative. In the circumstances the matter
ought to be postponed for the determination
of the
quantum
of the counterclaim.”
Thereupon
the following orders were made:
“
1.
In addition to the 200.00 rand per tyre rebate, the Defendant is
entitled to a further rebate of 70.00 rands for each tyre purchased
by it from the Plaintiff from the inception of the agreement to the
termination thereof;
2. The matter is
postponed
sine die
for the determination of the quantum of
Defendant’s counterclaim.
3.
The Plaintiff to pay costs.”
[8]
On 2 August 2011 an application for leave to appeal was filed by
plaintiff. In paragraph 7 of the application plaintiff
concluded as follows:
“
7.
Accordingly, there is a reasonable prospect that another Court might
find that the Plaintiff had not proved its entitlement to
payment of
R70,00 per tyre as from February 2002.”
In
the absence of Kahn AJ, her acting stint having come to an end by
then, the matter was referred to Jordaan, J who heard the application
for leave to appeal and dismissed same with costs on 3 November 2011.
[9]
About eighteen months later plaintiff filed its notice of intention
to amend. Defendant gave notice to oppose within the
time
frames allowed by
Rule 28.
Several grounds of objection were
raised which will be dealt with
infra
.
[10]
Contrary to the provisions of
Rule 28(4)
stipulating that a party
wishing to amend may lodge his application for leave to amend within
ten days from the delivery of the
notice of objection, plaintiff
failed dismally in this regard. The application was brought
five months later, but I must
say that defendant has not taken issue
with this delay.
THE ISSUES
[11]
In its application for leave to amend plaintiff dealt with
defendant’s objections set out in its written notice and
claimed in paragraph 7 of its deponent’s founding affidavit
that “the question of prescription is actually part and
parcel
of the
quantum
of the counterclaim”.
[12]
The grounds of objection, translated freely into English, are the
following:
1. The amendment is
aimed at relying on a new defence on the merits of the defendant’s
counterclaim which has already been
determined by Kahn AJ;
2. The proposed
amendment would be in conflict with the agreement entered into
between the parties during the
Rule 37
conference;
3. The plaintiff,
being dissatisfied with the judgment of Kahn AJ applied for leave to
appeal which application was dismissed;
4. Plaintiff’s
cause of action as pleaded in the particulars of claim is based on an
agreement and defendant’s claim
is based on the same agreement,
amplified as pleaded and consequently the counterclaim could not have
become prescribed by virtue
of the provisions of
s 13(2)
of the
Prescription Act, 68 of 1969
;
5. Plaintiff’s
plea of prescription should have been contained in a special plea and
not as the proposed amendment provides
for the plea to be part of the
plea over on the merits.
THE
AUTHORITIES
[13]
The granting or refusal of an application for amendment of a pleading
is in the discretion of the court which discretion should
be
exercised judicially in the light of all the facts and
circumstances. Generally speaking, our courts have a tendency
to allow amendments where this can be done without prejudice to the
other party. An amendment will not be allowed if such
prejudice
that is caused cannot be cured by an order of costs and where
appropriate by a postponement. The purpose of allowing
an
amendment should always be to ensure that a proper ventilation of the
disputes between the parties is achieved. See in
general
Cilliers
et al,
Herbstein and Van Winsen:
The Civil
Practice of the High Courts of South Africa,
5
th
ed, vol 1, pp 678 - 680 and Farlam
et al
Erasmus: Superior Court Practice
,
B1-179 and further.
[14]
Generally speaking, once a court has duly pronounced a final judgment
or order, it has no authority to correct, alter or supplement
it, the
reason being that it has become
functus
officio
or put otherwise,
“
its
jurisdiction in the case having been fully and finally exercised, its
authority over the subject matter has ceased.”
See
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298
(A) at
306F. This equally applies to an order made on the merits where
the issues have been separated in terms of Rule 33(4)
– See
Herbstein and Van Winsen
supra
at 675 and 681 and
Schmidt Plant Hire
(Pty) Ltd v Pedrelli
1990 (1) SA
398
(D&CLD) at 408B-409C;
David
Hersch Organisation (Pty) Ltd v Absa Insurance Brokers (Pty) Ltd
1998 (4) SA 783
(T) at 787C-H and
Tolstrup
NO v Kwapa NO
2002 (5) SA 73
(W) at
77C-78A.
[15]
In
Tolstrup NO
supra
Gautschi AJ warned, as the Supreme Court of Appeal has done on
numerous occasions, that in separating issues the parties ought
to be
precise as to which issues are to be determined first and which are
to be stayed for later adjudication. Preferably
it should be
done by reference to specific paragraphs of the pleadings. The
learned acting judge dealt with an issue where
the parties agreed
that the
quantum
only would be heard as follows at 77F.
“
Reference
could also be made to
Rule 34A
, which allows for interim payments in
actions for damages for personal injuries or death.
Rule 34A(4)
distinguishes between 'liability' and 'damages' in such cases. An
agreement or finding on liability (which is the equivalent of
'the
merits') clearly disposes of everything bar the
quantum
of damages, and hence the willingness to afford the plaintiff interim
payments.
Quantum
would not include a consideration of defences on the merits, be they
defences raised by way of special plea, such as lack of jurisdiction,
non locus standi
,
prescription or the like, or substantive defences such as absence of
negligence, mistaken identity, contributory negligence and
so on, all
of which relate to
whether
damages are payable. Once that is out of the way, the parties can
concern themselves with
how much
is payable. The special plea sought to be raised now seems to me to
fall within what would generally be understood to be the merits.
It
is a defence which would logically have been dealt with prior to the
parties embarking on an extensive enquiry into the quantum
of
damages.”
[16]
In
Krawa v Road Accident Fund
2010 (6) SA 550
(ECG) Bloem AJ had to adjudicate an application for
amendment in terms whereof defendant, the RAF, which had formally
conceded
the merits in favour of the plaintiff, sought an amendment
in terms whereof it was denied that the minor child Thandeka was the
plaintiff’s natural child and therefore plaintiff had no legal
capacity to represent her and furthermore it was denied that
the
plaintiff received support from the deceased prior to her death as
they lived separate lives and not as husband and wife at
the time of
her death. First of all, although defendant’s concession
and consequent compromise of the merits of plaintiff’s
action
was not made an order of court, Bloem AJ considered that if had been
the case he would have been
functus
officio
and unable to correct, alter or
set aside the order as it would have been definitive of the rights of
the parties relevant to the
merits of plaintiff’s claim.
He was of the view that it did not make any difference whether the
agreement of compromise
was made an order of court or not and
accordingly the application for leave to amend was dismissed with
costs.
[17]
Bloem, AJ’s judgment was overturned by the full bench. In
Road Accident Fund v Krawa
2012 (2) SA 346
(ECG) Van Zyl J, writing for the court, considered
the terminology used by parties in order to achieve a separation of
issues for
trial and indicated that it is important to recognise that
those terms are used in a procedural context. He stated
as follows at paragraph [42]:
“…
Further,
the enquiry relating to damages or quantum is not always limited to
what would amount to a mere calculation of the amount
of damages to
be awarded to the plaintiff. Accordingly, the danger that lies in the
suggestion in the Tolstrup case, namely that
the question of damages
or quantum is confined to a mere calculation of the amount in damages
to be awarded, is that it fails to
recognise that in the context of a
separation of issues for trial: (a) the issues between the parties
are in the first place to
be determined from the pleadings; and (b)
unless admitted by the defendant, the enquiry relating to damages or
quantum would also
include issues relevant to the existence of
patrimonial loss or damage.”
The
learned judge continued as follows:
“
[46]
…… The existence of a legal duty and the
concomitant right to support are therefore inextricably part of
the
issues relevant to the question of damages, as that word is to be
understood in the context of a separation of the issues on
the
pleadings for purposes of trial.
[47]
Applied to the present matter, the question is then whether the
defendant, by having divided the issues into merits and quantum,
and
thereafter conceding the merits, also conceded that the plaintiff had
suffered patrimonial loss. If not, then it follows that
the question
whether the deceased during her lifetime was under a legal duty to
provide support to the plaintiff remained in dispute.”
Consequently
the full bench found that notwithstanding the agreement of
compromise, the issue pertaining to the deceased’s
duty of
support remained in issue and therefore the application for leave to
amend the plea was granted.
[18]
In so far as reliance was placed on the
exceptio
rei iudicatae
it is instructive to
refer to
Smith v Porritt and Others
2008 (6) SA 303
(SCA) at 307 - 308. In para [10] of the
judgment the court found that the
exceptio
had over the years been extended by the relaxation in appropriate
cases of the common law requirements that the relief claimed
and the
cause of action be the same (
eadem res
and eadem petendi causa
) in both the
case in question and the earlier judgment. Where the
circumstances justify the relaxation of the requirements
those that
remain are that the parties must be the same and the same issue -
eadem quaestio
- must arise.
[19]
The defence of
res iudicata,
as
relaxed by the courts, has become known as issue estoppel.
Refer to the as yet unreported judgment of the SCA in
Hyprop
Investments Ltd v NSC Carriers
953/12
[2013] ZASCA 169
(27 November 2013 at paras [13] to [20].
It is clear from the above judgments and others that issue estoppel
should be considered
on a case by case basis and that a deviation
from the requirements of
res iudicata
should not be allowed when it is likely to give rise to potentially
unfair consequences in the subsequent proceedings. Leach
AJA
dealt with the issue as follows in
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government, Gauteng
2009 (3) SA 577
(SCA) para [22] at p 587A:
“
Importantly
when dealing with issue estoppel, it is necessary to stress not only
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
is placed must have arisen and must
be regarded as having been
determined in the earlier judgment.”
[20]
In so far as Mr Reinders submitted in his heads of argument –
an aspect not persisted with during oral argument - that
the
amendment should not be allowed because of the fact that
prescription, being a plea on the merits, should normally be raised
by way of a special plea, it is necessary to briefly consider the
judgment relied upon, being
Living
Hands (Pty) Ltd and Another v Ditz and Others
2013 (2) SA 368
(GSJ). The
dictum
of the learned judge that it is time honoured that prescription
should be raised by way of a special plea must be seen in proper
context. In all the judgments referred to by the learned judge
a special plea was always contrasted with an exception as
its
anti-thesis and in none of those cases a special plea was contrasted
with a normal plea or plea over. It does not matter
whether a
special plea is raised separately or as part of the plea over the
merits. It remains apart from the merits and
embodies a
substantive self-contained defence. See
Brown
v Vlok
1925 AD 56
at 58 and
Viljoen
v Federated Trust Ltd
1971 (1) SA
750
(O) at 760A and further.
EVALUATION
OF THE FACTS, THE LAW AND THE SUBMISSIONS BY COUNSEL
[21]
Mr Maritz submitted that the question of prescription is part and
parcel of the
quantum
of the counterclaim. He relied heavily on the full bench
judgment of Van Zyl J in
Road
Accident Fund v Krawa
supra
and submitted that the judgments in
Tolstrup
NO
supra
by Gautschi AJ and
Krawa
supra
by
Bloem AJ were wrongly decided. Mr Reinders, on the other hand,
submitted that the prescription plea is a defence on the
merits and
plaintiff should not be entitled to raise it at this stage of the
proceedings in so far as the merits have been adjudicated
upon.
[22]
I am in respectful agreement with the judgment of Van Zyl J in
Road
Accident Fund v Krawa
supra.
However for the
reasons that follow that judgment is distinguishable from the facts
in
casu
:
22.1 In
Krawa
the defendant in its plea, except for admitting plaintiff’s own
locus standi
and that it failed to pay the amount claimed,
placed all the remaining allegations in the particulars of claim in
issue.
In
casu
no other factual averments were placed in
issue by plaintiff, save as to defendant’s entitlement to the
R70,00 rebate per
tyre.
22.2 In
Krawa
the notice of intention to amend was merely to substitute what
amounts to a non-admission in the plea with a positive denial.
In
casu
plaintiff seeks to rely on a totally new defence which
was never raised in the original plea to the counterclaim.
22.3 In
Krawa
it should have been in the minds of the parties that a concession of
the merits dealt with the insured driver’s alleged negligence
only and not to aspects such as the duty to support. In
casu
this aspect did not come into play as the amount of the damages can
be established by a mere calculation, i.e. the number of tyres
purchased multiplied by R70,00 per tyre. Thus unlike as
pertinently raised in
Krawa
the issue
in casu
is
not whether plaintiff is liable to compensate defendant, but only
what amount has to be paid.
22.4
In
Krawa
the parties agreed that defendant conceded the merits in favour of
plaintiff.
In casu
Kahn
AJ made a declaratory order to the effect that defendant is entitled
to a further rebate of R70,00 for each tyre purchased
by it from
“
the
plaintiff
from the inception of the
agreement to the termination thereof
”.
(emphasis added). This is a final judgment definitive of the
rights of the parties and the present matter cannot
be equated with
the facts in
Krawa.
[23]
Plaintiff accepted initially that Kahn AJ’s decision was a
final decision definitive of the rights of the parties and
appealable
and therefore it applied for leave to appeal which was eventually
unsuccessful. In doing so plaintiff accepted
at that stage that
the court was
functus officio
.
This was the proper approach. In my view plaintiff, being
dissatisfied with the judgment of Kahn AJ, followed the
correct
procedure to apply for leave to appeal. If still being
dissatisfied, it should have petitioned the Supreme Court
of Appeal
and not approached this court with an application for leave to amend
its plea to the counterclaim.
[24]
Although it is true that
s 17
of the
Prescription Act, 68 of 1969
provides that a court may allow prescription to be raised at any
stage of the proceedings, this does not mean that such a plea
can be
raised by way of an amendment to the pleadings after a final judgment
has been pronounced as in
casu.
I do not agree with plaintiff’s counsel that the question of
prescription is part and parcel of the
quantum
of the counterclaim and in this regard I refer to my reasoning
supra
,
distinguishing the full bench judgment in
Krawa
from the facts in
casu
.
[25]
I therefore find that this court cannot now entertain the application
for leave to amend in the light of the agreement entered
into between
the parties at the
Rule 37
conference and the declaratory order made
by Kahn AJ which is definitive of the rights of the parties.
Consequently, and
in view of this finding it is unnecessary to deal
with the other issues raised by counsel during argument.
[26]
There is one aspect to be mentioned at this stage. It is
possible that defendant may also be blamed for the fact that
this
matter was not set down long ago for adjudication of
quantum.
The matter could have been finally
resolved during 2012 if the parties did not act in a lacklustre
manner. The legal representatives
of the parties are reminded
that their clients are entitled to finality of their disputes as soon
as possible. No acceptable
explanation has been given as to why
it took the plaintiff in excess of seventeen months since the
dismissal of the application
for leave to appeal to file its notice
of intention to amend and why it took a further five months since the
notice of objection
to file the application for leave to amend.
This is particularly as a result of such delays and irresponsible
attitude that
our Honourable Chief Justice Mogoeng has embarked upon
a programme in terms whereof case flow management will probably be
introduced
into all courts in this country during 2014. Legal
representatives should not be allowed to dictate the pace of
litigation.
Justice must be seen to be done and justice delayed
is often no justice at all.
ORDER
[27]
Consequently the following order is made:
27.1 The application
for leave to amend is dismissed with costs.
J. P. DAFFUE, J
On
behalf of plaintiff: Adv. J D Maritz SC
Instructed
by:
Vermaak
& Dennis
BLOEMFONTEIN
On
behalf of defendant: Adv. S J Reinders
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN