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[2012] ZAGPPHC 153
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Solenta Aviation Workshops (Pty) Ltd v Aviation @ Work (Pty) Ltd (9638/07) [2012] ZAGPPHC 153 (7 August 2012)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
Case number :9638/07
Date:07/08/2012
In
the matter between:
SOLENTA
AVIATION WORKSHOPS (PTY)
LTD
...............................................
PLAINTIFF
and
AVIATION
@ WORK (PTY)
LIMITED
....................................................................
DEFENDANT
JUDGMENT
J.W
LOUW. J:
[1]
On 15 March 2007, the plaintiff ("Workshops") caused a
summons to be served on the defendant in which it is alleged
that it
had leased a certain Cessna aircraft to the defendant in terms of a
written lease agreement. The plaintiff claims payment
of damages as
a result of the defendant's operation of the aircraft on 13 May 2006
in an alleged breach of its obligation in terms
of the agreement to
properly maintain the aircraft, as a result of which it is alleged
that the plaintiff had to incur certain
repair costs. A copy of the
lease agreement is annexed to the plaintiff's particulars of claim as
an annexure. Ex facie the agreement,
Solenta Aviation (Pty) Ltd
("Aviation"), and not Workshops, is the lessor of the
aircraft.
[2]
On 18 August 2009, Workshops served and filed a notice of intention
to amend its pleadings by deleting the word "Workshops"
where it appeared in the summons and in the particulars of claim. The
defendant objected to the proposed amendment on the ground
that
Workshops and Aviation were two separate companies, that the proposed
amendment was an attempt to substitute one plaintiff
with another and
that, because the amendment was being sought more than three years
after the date on which the cause of action
allegedly arose, the
claim which Aviation wished to enforce had become prescribed.
[3]
The amendment application was argued before Potterill J on 31 March
2010. She held that the identity of a creditor claiming
payment does
not only depend on its name, that the true identity of the plaintiff
could be ascertained from the contract attached
to the particulars of
claim, that the defendant knew the true identity of the plaintiff and
that the citation of the plaintiff
was therefore a misnomer. On page
5 of the judgment she said the following:
"/
am thus satisfied that the citation of a (sic) creditor can be
ascertained from the summons in conjunction with the contract
and the
summons did in terms of Section 15(1) of the Prescription Act
interrupt prescription."
The
amendment sought was accordingly granted.
[4]
The defendant thereafter amended its plea to introduce a special plea
that Workshops was not a creditor of the defendant when
the action
was instituted, that a period of more than three years had elapsed
from the date of the alleged breach of the agreement
until Aviation
was substituted as plaintiff, that the summons served on the
defendant did not amount to a process whereby the creditor
of the
defendant (Aviation) claimed payment of the alleged debt and that,
accordingly, the running of prescription in respect of
the alleged
debt was not interrupted by the service of the summons as
contemplated in s. 15(2) of the Prescription Act, 68 of 1969.
The
reference to s. 15(2) should obviously have been to s. 15(1).
[5]
Aviation thereafter filed a replication in which it admitted that
Aviation and Workshops were two separate companies and that
Workshops
was not a creditor of the defendant at the time when the action was
instituted. It pleaded that the summons conveyed
to the reader the
intention of Aviation, the creditor, to claim payment from the
defendant, its debtor, and that the court had
held that Aviation was
not a substituted party in the action and had determined that
prescription had been interrupted by the service
of the summons. It
further pleaded that the issue raised in the defendant's special plea
was identical to the issue determined
by the court when dismissing
the defendant's objection to the plaintiff's proposed amendment and
that the defendant was accordingly,
in addition, issue estopped on
the issue raised in the special plea.
[5]
The first question to be decided is whether the defendant is "issue"
estopped from raising its special plea of prescription,
i.e. whether
that issue is res judicata. In Blaauwberg Meat wholesalers CC v Anglo
Dutch Meat (Exports) Ltd
1
the circumstances were very similar to the present matter. The facts
are set out in the judgment of the Supreme Court of Appeal.
On 12
April 1996 a summons was served on the appellant in which Anglo-Dutch
Meats (UK) Ltd claimed payment of the price of beef
sold and
delivered by it to the appellant during March to June 1995, the last
due date for payment being 23 August 1995. During
November 1998, the
plaintiff's legal representatives became aware that the seller of the
meat had been Anglo-Dutch Meats (Exports)
Ltd (the Respondent). An
application was brought to amend the citation of the plaintiff to
reflect the true position. The appellant
opposed the application, but
Cleaver J granted the relief, holding that the plaintiff had been
wrongly described. He found that
prescription 'will not be a
consideration if the amendment is granted on the basis that the
plaintiff was incorrectly described
or that the description of the
plaintiff amounted to a misnomer, for in such event the service of
the summons on the defendant
will have interrupted prescription'
2
.
[6]
The appellant then raised a special plea of prescription against the
respondent's claim. The trial proceeded before Hodes AJ.
He ruled
that he was entitled to reconsider the application for the amendment
of the citation of the plaintiff and concluded that
Cleaver J had
been clearly wrong in granting the amendment because the summons did
not constitute a process whereby the creditor
claimed payment of the
debt and that the running of prescription had therefore not been
interrupted by service of the summons.
He therefore upheld the
special plea of prescription.
[7]
The respondent then appealed to the Full Court, which found that
Hodes AJ had
been
wrong and accordingly upheld the appeal. The Full court, whose
judgment is reported at 2002 CLR 292 (C)
3
,
considered the question whether the finding by Cleaver J had been
binding on Hodes AJ
4
and concluded that he was not so bound. The Court said the following:
“
[17]
An order granting an amendment of a pleading would, under normal
circumstances, be interlocutory unless it can be shown that
it is
final in nature in that it wholly or partially disposes of an issue
in the main action. In the present matter the amendment
granted by
Cleaver J did not have the effect of disposing of any issue in the
main action. It likewise did
not cause the defendant
irreparable prejudice by depriving him of a special plea of
prescription, or by anticipating or precluding
any relief anticipated
in the particulars of claim. On the contrary, as mentioned before
(par 6 above), if in fact the amendment
introduced a new legal
persona, as alleged by the defendant, it furnished him with such a
plea for the first time.
[18]
It must be remembered, of course, that Hodes A J was not considering
an appeal against the decision of Cleaver AJ, but was
dealing with a
special plea of prescription raised for the first time after Cleaver
J had granted the amendment. As such, I believe,
he was at large
to
consider afresh the effect of the amendment for purposes of
assessing whether or not it had merely corrected a misnomer or had
indeed
introduced a new plaintiff. In accordance with the authorities
cited above, he would in fact have been empowered to vary or set
aside the
amendment (par 13
above)...............................................
[19]
At the stage Cleaver J considered the application for amendment,
prescription had not yet been pleaded and was at most a potential
defence that could be raised at some future time. The facts and
circumstances relevant to a plea of prescription could differ
substantially from those before the court at the time of considering
only the amendment. And even if they should remain the same,
the
trial court could, conceivably, approach their meaning, ambit and
interpretation from a totally different perspective. That
is why a
court may be reluctant to consider such a potential defence before it
has been pleaded. The defendant is certainly not
precluded from
raising it after the amendment has been granted and can hence not
submit that he has been prejudiced."
[8]
The Full court then proceeded to enquire whether the amendment
corrected a misnomer or whether it introduced a new plaintiff
5
.
It concluded that the finding of Hodes AJ was wrong and that the
incorrect citation of the plaintiff was a misnomer and dismissed
the
special plea of prescription. This finding was overturned on appeal
by the defendant to the Supreme Court of Appeal. I referred
above to
the judgment of the Supreme Court of Appeal. Although the appeal
succeeded, the court did not question the correctness
of the finding
of the Full Bench that Hodes AJ had not been bound by the decision of
Cleaver J and that he was entitled to reconsider
whether or not the
citation of the plaintiff was a misnomer and whether or not the
plaintiffs claim had become prescribed.
[9]
I am in respectful agreement with the above findings by the Full
Court. An application for amendment is an interlocutory application.
Any findings of fact made in such application will not bind a
subsequent court unless such finding can be said to finally dispose
of an issue in the action between the parties. The finding of
Potterill J is not such a finding. It follows that the defendant
was
entitled to raise a special plea of prescription after the amendment
was granted and that the plaintiffs plea of issue estoppel
or res
judicata must be dismissed.
[10]
I therefore proceed to consider whether or not the plaintiffs claim
had become prescribed by the time the amendment was granted.
Section
15(2) of the Prescription Act, 68 of 1969, provides that the running
of prescription shall be interrupted by the service
on the debtor of
any process whereby the creditor claims payment of the debt. The
question therefore is whether the summons which
was served on the
defendant was a process whereby Aviation claimed payment of the debt.
[11]
The Supreme court of Appeal in Blaauwberg was critical of the Full
Court for not considering whether a difference in approach
was called
for between applications for amendment of pleadings and the
determination of whether there has been compliance with
a statutory
provision such as s. 15(1) of the Prescription Act
6
,
and said the following in paragraphs [12] to [14] of the judgment:
[12]
.............................. Amendments are regulated by a wide and
general discretion
which
leans towards the proper ventilation of disputes and are granted
according to a body of rules developed in that context. Whether
there
has been compliance with a statutory injunction depends upon the
application of principles wholly unrelated to the rules
just
mentioned and without the exercise of a
discretion..................................
[13]
For obvious practical reasons the Legislator ordained certainty about
when and how the running of prescription is interrupted.
That
certainty is important to both debtors and creditors. It chose an
objective outward manifestation of the creditor's intentions,
viz the
service on the debtor of a process in which the creditor claims
payment of the debt. That is not a standard which allows
for
reservations of mind or reliance on intentions which are not
reasonably ascertainable from the process itself. Nor does it,
as a
general rule, let in, in a supplementation of an alleged compliance
with s 15(1), the subjective knowledge of either party
not dehved
from the process.................................
[14]
Applying these considerations to the facts of the case, the question
which requires answering is 'Was summons served on the
defendant
before prescription in which the creditor which asked for judgment,
viz Exports, claimed payment?' That there was no
exact compliance is
beyond dispute, because the original plaintiff was not the creditor
and did not seek judgment. Of course the
identity of a creditor does
not depend only on its name. Place of residence or business,
registered office, occupation or nature
of business, details of some
or all of which one would expect to find in a process, may also serve
to establish identity or clarify
an ambiguous or incorrectly stated
name. (There may be other indicators, such as a previous name of a
company, company registration
details or an identity number, which
are sometimes encountered.) In the present instance, however, the
only possibly pertinent
details in the summons are that UK was 'a
company with limited liability registered in accordance with the laws
of England with
registered office at Arkwright Road, Highfield
Industrial Estate, Eastbourne, East Sussex, United Kingdom'.
When
Exports was later introduced into the summons exactly the same
description was applied to it. Of itself that is insufficient
to
assist Exports. The fact remains that the summons failed entirely to
communicate to it the intention of Exports to claim payment.
The
summons did not, therefore, achieve the objects of s 15(1) and was
not effective to interrupt prescription."
[12]
In my respectful view, the facts of the present matter cannot, in
principle, be distinguished from the facts in Blaauberg.
The summons
is not, objectively, a process in which Aviation claims payment of
the debt from the defendant. To allow the reference
in the
declaration to the lease agreement concluded between Aviation and the
defendant to supplement the description of the plaintiff
in the
summons would be to introduce the subjective knowledge of the parties
which is not derived from the process, i.e. the summons.
What is
more, the declaration is not a process as contemplated by s. 15(1) of
the Prescription Act. The fact that the defendant
admitted in its
plea that it had concluded the lease agreement with Aviation does not
avail Aviation because it did not bring about
an automatic
substitution of one plaintiff for another
7
.
As in Blaauwberg, the summons failed to communicate to the defendant
the intention of Aviation to claim payment and did therefore
not
achieve the objects of s. 15(1) of the Act. It therefore did not
interrupt prescription.
[13]
It follows that Aviation's claim against the defendant had become
prescribed at the time when the amendment was allowed. The
claim is
accordingly dismissed with costs, such costs to include the costs of
two counsel.
Plaintiffs
counsel: Adv. D. Vetten
Defendant's
counsel:Adv. M.C. Erasmus SC
Adv.
N.C. Hartman
Plaintiffs
attorneys: Darryl Furman & Associates
Johannesburg
Ref: D. Furman
Defendant's
attorneys: Mathys Krog Attorneys
Pretoria
Ref: M. Krog
1
2004(3)
SA160 (SCA)
2
This
passage of the judgment of Cleaver J is quoted in para. [4] of the
judgment of the SCA.
3
Also
at [200] JOL 9908 (C)
4
See
paras. [13] to [20] of the judgment.
5
Paras
[20] to [47] of the judgment.
6
See
para [12] of the judgment
7
See Associated Paint & Chemical Industries (Pty Ltd t/a Albestra
Paints and Lacquers v Smit 2000 (2) SA 789 (SCA) paras [5]
- [6];
Dischem Pharmacies (Pty) Ltd t/a Mondeor Pharmacy v United
Pharmaceutical Distributors (Pty Ltd t/a UPD Lea Glen, 2004
(2) SA
166 (W), para [8
]