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[2013] ZAKZPHC 65
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Codix Trust and Others v Stockowners Co-Operative (in liquidation) and Others (AR438/2012) [2013] ZAKZPHC 65; [2014] 1 All SA 342 (KZP) (10 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
PROVINCIAL DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO: AR438/2012
In
the matter between:
CODIX
TRUST.
...................................................................................
FIRST
APPELLANT
JOHANNES
JACOBUS DICKS N.O.
.......................................
SECOND
APPELLANT
LEONE
DICKS
N.O.
.........................................................................
THIRD
APPELLANT
vs
STOCKOWNERS
CO-OPERATIVE.
.........................................
FIRST
RESPONDENT
(in
liquidation)
BRIAN
KURZ
N.O.
.................................................................
SECOND
RESPONDENT
ANDRIES
GEYSER
N.O.
...........................................................
THIRD
RESPONDENT
LEBOGANG
MORAKE N.O.
................................................
FOURTH
RESPONDENT
RALPH
LUCHMAN
N.O.
............................................................
FIFTH
RESPONDENT
APPEAL
JUDGMENT
MADONDO
J
Introduction
[1]
This is an appeal against the judgment of Radebe J upholding the
Respondents’ exception to the Appellants’ Particulars
of
Claim on the ground that they lacked an averment necessary to sustain
a cause of action in that the Appellants had not pleaded
and proved
compliance with the provisions of section 215(1) and (5) of the
Co-Operatives Act, 91 of 1981 (the Act), requiring everyone
who has a
claim against the liquidated co-operative to give notice to the
liquidator of the co-operative (in liquidation) of the
action or
intended action against the co-operative. It was the Appellants’
contention that since the relief they seek are
declaratory in nature
such notice was and is not a requirement.
Parties
[2]
First Appellant is a trust duly registered in terms of the Trust
Property Control Act, 1988 (the first Plaintiff in the court
a quo).
[3]
Second and Third Appellants are Jacobus Johannes Dicks and Leone
Dicks respectively, both trustees of First Appellant, cited
herein in
such capacities, as “nominee officio”.
[4]
First Respondent is Stockowners Co-Operative Limited (in
liquidation), a co-operative duly incorporated pursuant to the
Co-Operative
Act, 1981(the First Defendant in the Court a quo). First
Respondent was finally liquidated on 30 June 2004 and Second to Fifth
Respondents were in terms of section 195(1)(a) of the Act appointed
as its joint liquidators.
Factual
Background
[5]
During the period July 2002 to November 2002 First Respondent was the
sole shareholder of a company, Stocklush (Proprietary)
Limited, which
conducted an abattoir business, under the name “Meadow Meats”,
selling livestock of its members on commission.
First Respondent
supplied Meadow Meats with as much livestock as the latter required
at preferential terms and it in fact managed
the business affairs of
Meadow Meats.
[6]
The abattoir business of Meadow Meats was not profitable and it was
wholly dependent on the continued support from First Respondent
and
its members. During October 2002 Meadow Meats was trading at a loss
and it became insolvent. First Respondent similarly experienced
severe financial difficulties and also traded in insolvent
circumstances. It was then totally dependent on the continued support
of its members and loans from the Land and Agricultural Development
Bank to fund its trading activities. In order to make it appear
as if
First Respondent was financially sound, it allegedly overstated the
value of Meadow Meats in its financial statement.
[7]
Meadow Meats was then offered for sale to First Appellant and as a
consequence on or about 19 November 2002 and at Vryheid,
First
Appellant and First Respondent entered into agreement of sale
(annexure “A” to Particulars of Claim) in terms
of which
First Respondent sold to First Appellant the only two shares in
Meadow Meats for the consideration of R2.00 and business
and assets
for R10 million. Meadow Meats bound itself as surety and
co-principal debtor with the First Appellant for the fulfilment
of
the obligations of First Appellant to First Respondent.
[8]
The essential terms of the agreement between the parties were: First
Appellant was to pay to First Respondent R10 million by
means of 117
monthly payments of R147, 950-00. Secondly, First Respondent would,
for a period of ten years, provide Meadow Meats
with as much
livestock as Meadow Meats required at the reduced prices and,
thirdly, First Respondent would allow Meadow Meats a
fourteen (14)
days interest free credit facility on all livestock purchased up to
an amount of R10 million. This was done in order
to enable Meadow
Meats to generate profits at the rate of R147, 950-00 for a period of
117 months.
[9]
First Respondent performed its contractual obligations for a period
of 16 months and Meadow Meats generated profits of R2, 367,200-00
during such period. However, in breach of the agreement First
Respondent, as from 16 April 2004, failed to perform its contractual
obligations, which resulted in Meadow Meats failing to generate the
contemplated profits. As a consequence of the alleged breach
by First
Respondent, Meadow Meats lost profits for the period of 101 months,
totalling R14,942,950-00.
[10]
On 14 February 2003 Meadow Meats and Second Appellant, in his
personal capacity, signed a suretyship agreement as sureties
and
co-principal debtors in favour of the Appellants (annexure “B”
to Particulars of Claim).
[11]
First Respondent was provisionally liquidated on 16 April 2004 and it
was finally liquidated on 30 June 2004. Second to Fifth
Respondents
were appointed as joint liquidators in terms of section 195(1)(a) of
the Act. Due notice was published in the Government
Gazette no. 26780
and a local newspaper on 17 September 2004 in compliance with section
197 of the Act.
[12]
On or about 16 February 2007 Meadow Meats, and the First Appellant
entered into a written agreement (annexure “C”
to
Particulars of Claim) in terms of which Meadow Meats ceded all its
rights, title and interest in all claims that it had against
First
Respondent for damages arising from First Respondent’s breach
of its contractual obligations it owed to Meadow Meats.
[13]
On 11 April 2007 the Appellants (Plaintiffs in the court a quo)
instituted an action against the Respondents (Defendants in
the court
a quo) wherein they claimed the following relief:
“ MAIN
CLAIM
(a) An
order declaring that the agreements, annexures “A” and
“B” hereto, are void ab initio.
CUMULATIVE
CLAIMS TO MAIN CLAIM ALTERNATIVELY, CLAIMS b and c.
b.
Alternative to a, an order declaring that the Plaintiffs are not
obliged to pay in excess of R5,2 million to the defendants pursuant
to the agreement, annexure “A” hereto.
c.
Cumulative to b, an order declaring that any amount still owing by
the first Plaintiff to the defendants had been, or is, set
off by the
claim that Stocklush (Pty) Ltd, trading under the name Meadow Meats,
had against the defendants and which it ceded to
the first Plaintiff.
d.
Costs of suit, including the costs of two counsel.
e.
Further or alternative relief.”
[14]
On 19 April 2007 the Respondents delivered a Notice to Defend. On 5
June 2007 the Respondents excepted to the Appellants’
Particulars of Claim, after having given notice to the Appellants in
terms of Rule 23(1) on 14 May 2007,on the grounds that the
Appellants had not complied with the provisions of section 215(1) and
215(4) in that they had not given notice to the Second to
Fifth
Respondents, in writing, of the action or intended action within a
period of 120 days after the date of publication of the
notice
referred to in section 197 of the Act. Nor had the Appellants made an
averment in their Particulars of Claim that effect
had been given to
the provisions of section 215(2) or (3) of the Act. The Respondents
contended that absent any such averments
the Appellants were
precluded from proving a claim against First Respondent in terms of
the provisions of section 215(5) of the
Act.
[15]
The Appellants failed to take any steps to remove the cause of
complaint but delivered a notice in terms of Rule 30 instead,
averring that the Respondents were not entitled to serve a notice to
remove the cause of complaint in terms of
Rule
23(1).
[16]
The Appellants allege that the agreement “annexure A” to
the Particulars of Claim is null and void in that it
is in breach of
section 38 of the Companies Act No. 61 of 1973 (the Companies Act)
which provides that no financial assistance
to purchase the shares of
a company may be given by the company itself. Secondly, that the real
purchase price of the shares was
not R2, 00 but R10 million allocated
for the fixed assets and loan accounts, and finally, that First
Respondent was not the owner
of the assets referred to in the
agreement, Meadow Meats was the owner thereof. However, for the
purposes of this appeal it is
not necessary to delve into the merits
of the Appellants’ claim.
[17]
It is the contention of the Respondents that, as a condition
precedent to the institution of the proceedings, the Appellants
were
obliged to allege and plead compliance with the provisions of section
215 in their Particulars of Claim, and that their failure
to do so
had the effect of rendering their plea excipiable. In their
submission, the Appellants aver that by the reason of the
nature of
the relief sought in their Particulars of Claim they were not obliged
to plead and prove compliance with the provisions
of section 215 and
its subsections.
[18]
It has been submitted on behalf of the Appellants that the failure to
give notice required in section 215 does not fetter the
Appellants’
right to approach the court and have their matter properly
ventilated. Mr Louw for the Appellants has argued
that notice in
terms of section 215 is required only if the case is suspended in
terms of section 190 of the Act.
[19]
Mr Rall SC for the Respondents has argued that section 215 is wide
enough to encompass liquidated and unliquidated claims,
subsection
(5) is the catch all. Compliance with the provisions of section 215
is, in all instances, a requirement, and the failure
to plead and
prove compliance with the section renders the Particulars of Claim
excipiable. However, it is common cause between
the parties that this
appeal mainly turns on the interpretation of section 215 of the Act.
Issues
[20]
The essential issues for determination in the present case are:
(a)
Whether on proper construction of the provisions of section 215 of
the Act the Appellants were obliged to plead and prove compliance
with the provisions of the said section, as a condition precedent to
the institution of the proceedings in this case.
(b)
Whether the Appellants’ failure to give the required notice in
terms of section 215(1) and (5) was an essential ingredient
of their
cause of action and definitive.
[21]
Section 215 provides:
“
(1)
Any person who has a claim against a co-operative being wound up,
excluding a claim against a member`s fund, shall within 90
days after
the date of publication of the notice referred to in section 197
lodge with the liquidator a sworn or solemn statement
specifying the
amount of the claim and the prescribed particulars relating to the
claim together with supporting documents (if
any): Provided that if a
member for any reason whatsoever does not want to claim against a
members’ fund to proceed he shall
inform the liquidator in
writing thereof.
(2)
The liquidator may admit or refuse to admit the co-operatives
liability for the amount of a claim referred to in subsection
(1) or
may admit to co-operatives’ liability for any portion of such
an amount.
(3)
Any person aggrieved by a decision taken by a liquidator under
subsection (2) in connection with his claim may within 30 days
after
he was notified of such decision, and the registrar may after
consideration of the grounds of the appeal and the liquidators
reasons for his decision confirm the decision, or set the decision
aside and order the liquidator to admit the claim or to admit
it to
the extent determined by the registrar.
(4)
(a) any person referred to in subsection (1) who has failed to lodge
his claim with the liquidator within the period mentioned
in that
subsection, may thereafter with the consent of the registrar
lodge his claim with the liquidator within a period of
30 days after
the termination of the said period.
(b)
The provisions of subsections (2) and (3) shall mutatis mutandis
apply in respect of a claim referred to in paragraph (a).
(5)
The provisions of this section shall not prevent a creditor from
proving a claim against a co-operative in any court, but no
person
shall institute an action to prove a claim against a co-operative
being wound up or proceed with any such action which has
been
suspended in terms of section 190 unless he has lodged his claim with
the liquidator within the period mentioned in subsection
(1) or with
the consent of the registrar, within the further period mentioned in
subsection (4), or his otherwise given notice
to the liquidator in
writing of the action or intended action within a period of 120 days
after the publication of the notice referred
to in section 197.”
Purpose
of section 215
[22]
Before determining whether or not notice in terms of section 215 (1)
of the Act is a requirement in this case, I propose first
to
determine the purpose of the provisions of the section in question
and the nature of the claims to which they apply. The fundamental
principle in statutory interpretation is that the purpose of the
Legislation must be determined and applied in the light of the
spirit, purpose and objects of the Bill or Rights in the
Constitution, for the Constitution is lex fundamentalis against which
all conduct and law must be measured and tested. See section 2 of the
Constitution of the Republic of South Africa, 108 of 1996
(the
Constitution).
[23]
Section 39(2) of the Constitution provides:
“
When
interpreting any legislation and when developing the common law or
customary law every court, tribunal or forum must promote
the spirit,
purpose and objects of the Bill of Rights.”
[24]
In S v Lawrence; S v Negal; S v Solberg 1997(4) SA 1176(CC) at 1198
para 52 Chaskalson P said:
“
The
purpose of the particular legislative provisions has ordinarily to be
established from their context, which will include the
language of
the statute and its background.”
[25]
The intention of the legislation must essentially be gathered from
the language used. The ordinary meaning must be attached
to the
words. The most important rule of interpretation is to give words
their ordinary and literal meaning, and meaning must be
assigned to
every word. See Union Government
1917 AD 419
; Volschenk section 215
46 TPD 486
; Keyter v Minister of Agriculture
1908 NLR 522
;
Association of Amusement and Novelty Machine Operators v Minister of
Justice 1980(2) SA 636(A).
[26]
The provisions of section 215 imposing an obligation to give notice
of a claim or contemplated claim to the liquidator were,
in my view,
designed to afford the liquidator an opportunity, immediately after
his appointment, to consider and assess, in the
interests of the
general body of creditors, the nature and validity of the claim
contemplated and how to deal with it – whether
to dispute or
settle or acknowledge it. See also Randfontein Extension Ltd v South
Rand Fontein Mines Ltd and others
1936 WLD 1
at 3; Umbongintwini Land
and Investment Co (Pty) Ltd (in liquidation) v Barclays National Bank
Ltd 1987(4) SA 894(A) 910
Nature
of a claim contemplated in section 215
[27]
The provisions of section 215 are, in fact, aimed at providing a
simple and quick procedure for the lodging and adjudication
of
uncontroversial liquidated claims against the co-operative in
liquidation. However, Mr Rall for the Respondents has submitted
that
reference to a claim in section 215(5) includes liquid and illiquid
claims. He went on to argue that the word “claim”
is not
qualified by the word “unliquidated” and that therefore,
ordinarily, this would mean either a liquidated or
an unliquidated
claim.
[28]
In the requirement, in section 215(1), that a person who has a claim
against the liquidated co-operative must lodge with the
liquidator a
sworn or solemn statement, a reference to the words “specifying
the amount” of the claim presupposes that
a claim contemplated
in section 215(1), (4) and (5) is one involving a liquidated amount
in money. A liquidated amount in money
is an amount which is either
agreed upon or which is capable of speedy and prompt ascertainment.
In Fatti’s Engineering Co.
(Pty) Ltd v Vendick Spares (Pty)Ltd
1962(1)SA 736(T), a claim for a specific sum of money in respect of
work done and material
supplied was held to be a liquidated amount of
money. The approach of the Transvaal Provincial Division has been
followed by the
courts of several other divisions, but in certain
Cape decisions and in Natal a narrower test has been adopted, viz.
that a claim
for a liquidated amount in money is a claim based on
obligation to pay an agreed sum of money or so expressed that the
ascertainment
of the amount is a mere matter of calculation. See
Leymac Distributors Ltd v Hoosen and Another 1974(4) SA 524(D);
Consolidated
Fish Distributors (Pty) Ltd v Sergeant, Sergeant, Jones,
Valentine and Co. 1966(4) SA 427(C) 430F SA; Fire and Accident
Insurance
Co. Ltd v Hickman 1955(2) SA 131(C) at 132H; Botha v W
Swanson and Company (Pty) Ltd 1968(2) PHF 85 (CPD) per Corbett J.
[29]
A requirement in section 215(1) that a sworn or solemn statement
specifying the amount of the claim must be accompanied by
the
prescribed particulars relating to the claim together with supporting
documents, also presupposes that the claim contemplated
in the
section must be so expressed that the ascertainment of the amount is
a mere matter of calculation. This requirement also
qualifies the
claim contemplated in section 215(1) as a liquidated one.
[30]
The essential question for decision is whether the prayer for a
declaratory order a claim contemplated in section 215(1) and
(5) of
the Act. It has been submitted on behalf of the Appellants that the
prayer for a declaratory order is not a claim of the
creditor and
that the type of the relief sought in the main and alternative claims
in the Appellants’ Particulars of Claim
are not claims as is
contemplated in section 215. The Appellants’ main claim is a
claim for a declaratory order declaring
the agreement (annexure “A”)
and the suretyship to be null and void ab initio. In the first
alternative claim the Appellants
allege that although the market
value of the assets and business of Meadow Meats did not exceed R5.2
million as a result of misrepresentation
by the First Respondent,
First Appellant undertook to pay R4,8 million in excess of what it
should have paid for the assets and
business of Meadow Meats.
Accordingly, the Appellants seek an order declaring that First
Appellant is not obliged to pay in excess
of R5.2 million for the
assets and business of Meadow Meats to First Respondent. In the
second alternative claim the Appellants
seek an order declaring that
the claim by first Respondent be extinguished by way of set-off
against the ceded claim. The relief
sought in the main claim as well
as in two alternative claims are non-pecuniary, but declaratory in
nature and hence unliquidated.
[31]
Upon proper constitution section 215 of the Act does not allow a
liquidator to receive, consider, adjudicate upon and dismiss
unliquidated claims. The liquidator cannot, for instance, examine all
available and documents relating to the insolvent estate
for the
purpose of determining whether the claimant is entitled to the relief
sought. Nor does section 215 clothe the liquidator
with power and
authority to make declaratory orders which are special, relief
falling within the ambit of section 19 of the Supreme
Court Act, 59
of 1959. See also Preston v Vredendal Co-Operative Winery Ltd 200(1)
SA 244(E) 248B.
[32]
Section 19(1)(a)(iii) of The Supreme Court Act 1959 only empowers the
High Court, at the instance of any interested person,
to enquire into
and determine any existing, future or contingent right or obligation,
notwithstanding, that that person cannot
claim any relief
consequential upon the determination. See also Cordiant Trading CC v
Daimler Chrysler Financial Services
2005 (6) SA 205
(SCA) 213 B-E.
The court also retains its common-law power of making declaratory
orders in proper circumstances. See Geldenhuys
and Neethling v
Bedithin
1918 AD 426
; Bulawayo Municipality v Bulawayo Indian Sports
Ground Committee 1956(1) SA 34(SR) at 35E. The declaration of rights
procedure
is an extra-ordinary remedy available only when relief
cannot be obtained in any other manner. However, the granting of the
order
sought in this regard depends entirely on the discretion of the
court.
[33]
It appears from the language employed in section 215 that the claim
contemplated therein is one of a liquidated amount in money
within
the meaning of section 215(1). This can be equated with a claim for a
fixed, certain or ascertained amount or thing. Where
the legislative
words used are clear and unambiguous as in the present case the court
should give effect to what the legislature
has said, and not try to
cover eventualities that the legislature for whatever reason omitted
to cover by extending the meaning
of the legislation beyond that of
the words used. See Greenshields v Willemburg (190)
25 SC, 568
; R v
Kirk
1914 CPD 564
at 567.
[34]
In casu, the purpose is not broader than the initial textual meaning
of the legislation and it therefore follows that the need
for
extensive interpretation does not arise. In the premises, reading
unliquidated claims into the provisions (as Mr Rall has submitted)
would, in my view, defeat the purpose of the section to have all the
claims of specified amount of money and prescribed particulars
accompanied by supporting documentation (if any) dealt with
expeditiously and resolved by the liquidator of the co-operative in
liquidation without resorting to litigation or judicial process. The
words “a sworn or solemn statement” specifying
the amount
of the claim and the prescribed particulars relating to the claim
together with the supporting document’s should
be construed as
excluding unliquidated claims including claims for declaratory
relief. The conclusion that the claim contemplated
in section 215 is
a liquidated one finds support in section 215(2) which states that
the liquidator may admit or refuse to admit
the co-operative’s
liability for the amount or any portion of an amount of a claim
referred to in subsection (1). Also subsection
(5) of the section
states that no person may institute an action to “prove a
claim’’...The claim contemplated
herein is, obviously, a
claim referred to in subsection (1). Had the intention been to
include the unliquidated claim the subsection
would have been worded
differently, for instance, no person may institute an action to
‘’prove any claim’’.
An
obligation to comply with the provisions of section 215
[35]
It has been argued on behalf of the Appellants that section 215 does
not debar them from instituting the present action. Secondly,
even if
it were to bar access to a court, it is not for the Appellants to
allege and prove that they have complied with the provisions
of
section 215(1) and (5) in particular. The first part of the section
subsections (1) to (4) deals with internal adjudication
of claims
against the liquidated co-operative, and the second part with the
external adjudication of claims.
[36]
Though section 215(5) states in clear and uncertain terms that the
internal dispute resolution procedures provided in subsections
(1) to
(4) do not prevent a creditor from proving a claim against a
liquidated co-operative in any court it proceeds to provide
that “no
person may institute an action to prove a claim against a liquidated
co-operative or proceed with any such action
which has been suspended
in terms of section 190 unless he has lodged his claim with the
liquidator within the period mentioned
in subsection (1) or with the
consent of the registrar, within the further period mentioned in
subsection (4) or has otherwise
given notice to the liquidator in
writing of the action or intended action within the period of 120days
after the date of publication
of the notice referred to in section
197.”
[37]
It is abundantly clear from the provisions of section 215(5) that a
person who intends to prove a claim in court against the
liquidated
co-operative or to proceed with an action suspended in terms of
section 190 must have lodged his claim with the liquidator
within the
period mentioned in subsection (1) or if he acts with the consent of
the registrar within the further period mentioned
in subsection (4)
or has otherwise given a notice within the period of 120 days after
the publication of the notice referred to
in section 197.
[38]
Section190 provides:
“After
the commencement of the winding-up of a co-operative:-
(a) No
civil proceedings to which the co-operative is a party shall be
instituted or proceeded with until a liquidator has been
appointed
under section 195(1)(a);
(b) Any
attachment or execution put into force against an asset of the
co-operative under a judgment given by a court before the
commencement of the winding-up shall be void.”
No
allegation has been made that the present action falls within the
ambit of section 190 and therefore section 190 has no bearing
on the
determination of this appeal and is consequently of no relevance for
the purpose of this case. However, it is not in dispute
that the
Appellants did not lodge a claim within the period specified in
subsection (1) nor have they lodged the claim within the
period
mentioned in subsection (4).Further, that the Appellants did not
lodge their claim within the period specified in subsection
(5).
[39]
However, it is apparent from subsection (5) that for a creditor to
prove a case in court against the liquidated co-operative,
he must
have either lodged a claim with the liquidator within the period
mentioned in subsection (1) or (4) or has given notice
within the
period of 120 days after the publication of the notice in terms of
section 197 of the Act. Apparently, the giving of
such a notice is a
condition precedent to the institution of the contemplated legal
proceedings against a liquidated co-operative.
Generally, where
compliance with a statutory requirement is a condition precedent to
the institution of an action, the Plaintiff
must allege and prove
that all the conditions precedent relating to the claim provided for
in the relevant section or those other
formalities have been complied
with. See Vester v Motor Vehicle Assurance Fund 1978(3) SA 691(A) at
697B-H; Dladla v President
Insurance 1982(3) SA 198(W) at 201E-G. If
the circumstances are such that it is not necessary for the Plaintiff
to plead and prove
compliance with the relevant statutory provisions,
in my view, the Plaintiff must state so and briefly state the grounds
upon which
it relies for such a conclusion.
Non-compliance
with provisions of section and the effect thereof
[40]
It is not in dispute that the Appellants have not lodged a claim
under subsections (1) or (4) or given a notice under (5) a
claim.
However, it is the submission of the Appellants that non-compliance
with the provisions of section 215 of the Act and its
subsections is
not a complete bar to the Appellants’ action. The purpose of an
exception alleging that a pleading lacks averments,
that are
necessary to sustain an action or defence is to dispose of the
leading of unnecessary evidence at the trial. Such an exception
must
go to the root of the claim or defence. See Dharumpal Transport (Pty)
Ltd v Dharumpal 1956(1) SA 700(A) 706E; Vermeulen v
Goose Valley
Investments (Pty) Ltd
[2001] 3 All SA 350(A)
, 2001(3)SA 986 (SCA);
Trustees for the Time Being of the Bus Industry Restructuring Fund v
Break Through Investments CC
[2008] 1 All SA 23(SCA)
, 2006(1) SA
67(SCA).
[41]
An excipient should make out a very strong case before he or she
should be allowed to succeed. An excipient has the duty to
persuade
the court that upon every interpretation that the Particulars of
Claim could reasonably bear, no cause of action was disclosed.
See
Francis v Sharp 2004(3) SA 230(C) at 237 D-I. It is therefore
appropriate to except if the point of law raised will dispose
of the
case in whole or in part. A pleading is excipiable only on the basis
that no possible evidence led on the pleadings can
disclose a cause
of action. See McKelly v Cowan N.O 1980(4) SA 525(Z) at 526D.
[42]
In the present case failure on the part of the Appellants to plead
and prove compliance with the statutory provisions in question
was
not an essential ingredient of the Appellants’ cause of action,
but a peripheral issue which should not have been allowed
to bar the
Appellants’ access to justice and to have their claims properly
ventilated. Proof that the Appellants had failed
to plead and prove
that they had complied with the statutory requirements of section 215
would make no difference whatsoever to
the evidence to be led at the
trial. All the averments in the Particulars of Claim would have to be
proved in order to establish
a major claim. In Constantaras v BLE
Food Service Equipment (Pty) Ltd 2007(6) SA 338(SCA) it was held that
where the upholding
of an exception is definitive, in order to avoid
disposing of the Respondents’ action, the proper order is to
uphold the
exception and grant the Respondent leave to amend the
offending pleading within a specified period and not to dismiss the
claim
or grant judgment. See also Amler’s Precedents of
Pleadings, Seventh Edition P204.
[43]
Mr Rall for the Respondents had argued that granting the Appellants’
leave to amend their papers would not make any difference
since the
Appellants had not given the required notice. In the circumstances of
the present case, the Appellant’s failure
to plead and prove
compliance with the provisions of section 215 should and could have
been dealt with by way of a special plea.
However, for this issue to
reach finality, I propose to determine whether the Appellants had an
obligation in this case to plead
compliance with the statutory
provisions of section 215 of the Act before instituting legal
proceedings against the Respondents.
In my view, section 215 is
capable of one construction only. The obligation to lodge a claim
within the periods mentioned in
subsections (1), (4) and to give
notice within the period mentioned in subsection (5), after the
appointment of the liquidator,
is imposed upon a creditor who intends
to institute proceedings for a liquidated claim. The subsection (5)
does not cover the
situation where a creditor intends to institute
proceedings for an unliquidated claim. Had the Legislature intended
to impose a
similar obligation on such a creditor it could easily
have provided therefor in clear terms.
[44]
The provisions of section 215 providing for the notice to the
liquidator are an administrative provision for the liquidator’s
convenience. See Michaels v Wells 1967(1) SA 46 (C) 53. The
allegation of voidness of the contract on the basis of its illegality
cannot be dealt with by the liquidators. But by court – no such
power has been given to the liquidators. They have no discretion
over
matters other than money claims. The relief sought in the main claim,
in the present case, as well as two alternative claims
is declaratory
in nature and therefore not a liquidated claim. I have accordingly
come to the conclusion that the provisions of
section 215 of the Act
do not find any application in the circumstances of the present case.
The Appellants had therefore no obligation
to comply with the said
provisions.
Order
[45] In
the result.
1) The
appeal is upheld;
2) The
order by the Court a quo upholding exception is set aside; and
3) Respondents
are ordered to pay the costs of this appeal jointly and severally,
the one paying the other will be absolved –
such costs to
include the costs incurred consequent upon the employment of two
counsel.
KRUGER
J I agree, it is so ordered.
CHILI
AJ
Date
reserved on: 1 November 2013
Date
delivered on: 10 December 2013
Appellants
attorney: HOOYBERG ATTORNEYS
C/O
Masons Incorporated
(ref:
M Du Plessis /nb/10/H020/002)
Appellants
counsel: P.F Louw SC / H Louw
Respondents
attorney: Venns Attorneys
(ref:
AL/welda/S137L)
Respondents
counsel: Adv Rall SC