About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 290
|
|
Nelbros Boukonsultante (Pty) Ltd and Another v Tsai and Others (16476/11) [2012] ZAGPPHC 290 (15 November 2012)
NOT
REPORATBLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE:
16476/11
DATE:
15 November 20 I 2
IN
THE MATTER BETWEEN:
NELBROS
BOUKONSULTANTE (PTY) LTD 1
st
Respondent/Plaintiff
PETRUS
JACOBUS NEL 2
nd
Respondent/Plaintiff
and
STEVEN
MARTIN TSAI Applicant/Defendant
AND
17 OTHERS
JUDGMENT
LEDWABA,
[1]
This is an application in terms of Rule 33(4) of the Rules of this
High Court in terms whereof the applicants seek an order
in the
following terms:
“
1.
That a special plea of prescription raised by the defendants be
decided separately from any questions of law or fact in the action
pending between the parties:
2.
That the respondents pay the costs of this application on an attorney
and own client scale, jointly and severally, the one paying
the other
to be absolved, only in the event of the respondents opposing this
application. ”
[2]
The respondents are opposing this application.
[3]
The applicants are the defendants in the main action and the
respondents are the plaintiffs. For convenience sake the parties
will
be referred to by their nomenclature in the action proceedings.
[4]
In the summons the plaintiffs are claiming an amount of R3 862 455.76
from the third defendant, and against all defendants,
an order for
the rendering and debatement of a full account pertaining to the
financial years ended February 2003 to February 2008.
Further that
whatever amount is to be due to them after the debatement of the
account.
[5]
The plaintiffs in the particulars in describing their claim alleged
inter alia that:
5.1
a first agreement was concluded on 28 June 1996 between the second
plaintiff and the first, second, fourth, fifth, sixth, eleven
and
twelfth defendants;
5.2
an amending agreement was concluded during or about June 1997 between
the second plaintiff and the then existing companies and
close
corporations of the first and second defendants (the “amending
agreement”);
5.3
an agreement was concluded during or about January/February 2002
between the first and second plaintiffs, and the third to fifteenth
defendants (the "substitution agreement”) in terms whereof
the first plaintiff was substituted as a party to the first
agreement
as amended by the amending agreement, in the place of the second
plaintiff.
5.4
The second plaintiff was appointed as Manager. Building Operations
for all the companies and close corporations of the first
and second
defendants, with commencement date 1 October 1996;
5.5
the second plaintiff would be paid 10% of the net profit of all the
then existing and future companies and/or close corporations
failing
under the control of the first and second defendants and conducting
building operations, earned in the period from date
of conclusion of
the agreement until the termination thereof, which 10% net profit
would be calculated in the manner set out in
paragraph 22.5 of the
particulars of claim.
5.6
the second plaintiff would be entitled to receive an annual account
supported by all relevant documents, reflecting the calculation
of
the 10% of the net profit to which he was entitled, which statement
of account and supporting documents would be made available
to him
within a reasonable time after the end of the financial year of the
company, and which reasonable time would be a period
of no more than
three months.
[6]The
plaintiffs allege that, in respect of the amending agreement, the
first agreement was amended as follows:
6.1
The 10% of the net profit of the companies close corporations to
which the second plaintiff was entitled would be paid to the
second
plaintiff six months in arrears, within a reasonable time (not
exceeding three months) at the end of each six month period
falling
within a financial year:
6.2
The first payment of net profit would be made to the second plaintiff
in August 1997, and subsequent payments would be made
six monthly in
arrears thereafter;
6.3
The remainder of the terms in the first agreement remained unaltered.
[7]
The plaintiffs alleged that, in terms of the substitution agreement,
the parties, in addition to agreeing that the first plaintiff
would
be substituted as a party to the first agreement in the place of the
second plaintiff, agreed as follows:
7.1
In respect of any commercial property constructed and developed by a
company which was a party to the agreement being let and
not being
sold, a sum equal to 15% of the cost of the land and the construction
of the building thereon, would be deemed to constitute
a net profit
earned by the company, and the first plaintiff would be entitled to
payment of 10% thereof:
7.2
Upon the determination, from time to time, of 10% or the net profit
to which the first plaintiff was entitled, the first plaintiff
would
invoice the company, as nominated by the first defendant or the
second defendant, with a tax invoice containing a VAT inclusive
amount, equivalent to the salary and bonuses described in annexure
“A" to the particulars of claim, and equivalent to
10% of
the net profit.
[8]
The plaintiffs alleged that the defendants have failed and/or refused
to comply with the obligations of rendering to the first
plaintiff
detailed statements of account, supported by the necessary vouchers
and documentations, of the calculations of the 10%
or the net profit
to which the first plaintiff was entitled for the period commencing 1
March 2002 and ending on 28 February 2008.
[9]
The plaintiffs further alleged that, in a letter dated 29 May 2008,
the third defendant admitted that it was indebted to the
first
plaintiff in an amount of no less that R3 862 455,67.
[10]
The defendants filed a special plea of prescription and a plea to the
plaintiffs action. They further filed a counter claim
and the
plaintiffs filed a replication to the defendants’ special plea
of prescription. I will deal with the special plea,
the replication
and the counterclaim later in the judgment.
[11]
On the merits of the action proceedings the defendants:
11.1
admitted the conclusion of the first agreement and the amending
agreement;
11.2
denied the plaintiffs’ allegations in respect of the second
plaintiffs entitlement to a statement and debatement of account
and
pleaded that the second plaintiff would be entitled to an annual
reconciliation and calculation of the 10% of the net profit
upon the
expiry of the financial year of all the companies and/or close
corporations;
11.3
denied the conclusion of the substitution agreement and pleaded the
conclusion of a second amending agreement.
[12]
At the pre-trial held by the parties’ legal representatives the
defendants requested the plaintiff to agree that the
special plea of
prescription be adjudicated separate but the plaintiff’s
attorney did not accede to the request hence this
application.
[13]
Advocate A C Ferreira SC for the defendants, has in the heads of
argument correctly set out in detail the legal principles
regarding
the objective of Rule 33
(4)
and Advocate N Maritz SC for the defendant has no issue with the
legal principles. It will suffice to state that I agree with
the
quotation in Civil Procedure in the Supreme Court by the learned
author D Harms on page B-228 that:
“
The
basis of the jurisdiction is convenience - the convenience not only
of the parties but also of the Court. The advantages and
disadvantages likely to follow upon the granting of an order must be
weighed, if overall, and with due regard to the divergent
interests
and considerations of convenience affecting the parties, it appears
that the advantages would outweigh the disadvantages.
the Court would
normally grant the application. When deciding an application under
the sub-rule, the Court is not called upon to
give a decision on the
merits. But it must consider the cogency of the point concerned,
because unless it has substance a separate
hearing would be a waste
of time and costs. So, the Court should not grant an application for
a separate hearing "unless there
appears to be a reasonable
degree of likelihood that the alleged advantages would in fact
result. ”
[14]
What is crucial is the application of the legal principles to the
facts or circumstances of the case before me. which aspect
I will
deal with hereafter.
[15]
In the replication to the defendants’ special plea, the first
plaintiffs raised the following issues:
15.1
That the defendants willfully prevented it to know about the amount
or the 10% share of the profit when it was entitled to.
In terms of
section 12 (2) of the Prescription Act (the Act), prescription did
not commence to run against it.
15.2
In terms of section 14(1) of the Act, the acknowledgement of debt
alleged in paragraph 29 of the particulars of claim interrupted
prescription.
15.3
That in terms of section 12(3) of the Act, the debt was not due and
prescription did not commence to run in term of section
12(1).
15.4
That the debt which the defendant’s seeks to enforce in their
counterclaim, has not become prescribed. In terms of the
Act and is a
reciprocal debt to the debt claimed by the first plaintiff, the
provisions of section 13(2) of the Act were therefore
applicable and
the debt which the first plaintiff seeks to enforce has not become
prescribed.
15.5
That the running of prescription was in respect of the debt that was
interrupted by the service of the summons under case no
40185/09 on
the defendants.
[16]
It is trite that I am not to decide on the merits of the special
plea. I need to consider whether it would be convenient to
grant a
separation as contended for by the defendant.
[17]
I should also determine, on the facts or circumstances of this case
the advantages and disadvantages that could flow from an
order of
separation. In Braaf v Fedgen Insurance Ltd
1995 (3) SA 938
(C) at
939, King J said Rule 33(4):
“
enjoins
the court to accede to an application and make the necessary order
‘unless it appears that the questions cannot conveniently
be
decided separately'. Thus it is incumbent on the plaintiff to satisfy
the court that the application should not be granted.
”
[18]
I do appreciate what was said in the Braaf case, however the court
should also consider carefully the nature, convenience and
complexity
of the main case vis-a-vis the issue to be raised when the special
plea is considered separately.
[19]
Advocate Ferreira SC argued forcefully that, prima facie, the
defendants special plea would succeed because it is clear that
when
the summons was issued on 14 March 2011 the period of three years had
already lapsed.
[20]
He submitted that even if the contents of the replication are taken
into account the evidence that would be led to deal with
the issue
raised would be limited if a separation is granted.
[21]
He further submitted that separation would be convenient because it
will also save time and costs in that the document to be
discovered
may be limited if separation is granted.
[22]
In considering the cogency of the special plea, in my view, it is
clear that the first plaintiffs claim in respect of the debatement
of
a full account pertaining to the financial year ended February 2008
the claim could not have prescribed because in terms of
the contract
on which the claim is based the plaintiff was entitled to receive an
annual account, supported by all relevant documents
reflecting the
calculation of the 10% or the net profit to which he was entitled
which statement of account and supporting documents
would be made
available to him within a reasonable time after the end of the
financial year of the company, and which reasonable
time would be a
period of no more than three months. This simply means the period to
claim the documents ended on the 31st of May
2008.
The
summons in respect of the period ending 2008 appears to have been
issued within three years.
[23]
I have also considered the financial period of the other previous
years and think evidence in respect of the said period is
relevant
for the period ending 2008, especially having regard to the
defendants’ counterclaim.
[24]
The first plaintiff, in the replication also raised the debt which
the defendants seek to enforce in terms of the counterclaim
on which
the issue of prescription has not been raised. The evidence to be
presented on the counterclaim and the plaintiff’s
claim of the
sum of R 3 866 455.75 may show that the debts are reciprocal. To
order separation may prolong the trial in that such
evidence may be
led in two trials,
[25]
The evidence to be led to deal with the issues raised in the
replication even though it may be limited, I think to avoid
unnecessary
delaying the trial which I was told the date has been
allocated for next year in about June it will not be convenient to
order
a separation.
[26]
I agree with Advocate N Maritz SC that the question of discovery of
the documents will not be affected by the separation.
[27]
I have carefully considered the legal issue raised in the papers and
in the heads of argument, the submissions made on legal
issues by the
respondents on certain aspects are not binding on me in deciding
whether a separation should be granted or not.
[28]
I am not persuaded that the separate adjudication of the special plea
would curtail the litigation and save the costs. There
is no way that
it would dispose of the action in its entirety as it was submitted on
the defendants behalf.
[29]
Regard being had to all of the aforesaid I make the following order:
29.1The
defendants’ (applicants) application in terms of Rule 33(4) is
dismissed.
29.2
The costs of this application are reserved and will be determined by
the trial court.
A
P LEDWABA
JUDGE
OF THE HIGH COURT
HEARD
ON: 5 November 2012
FOR
THE APPLICANT: Adv A C Ferreira SC and Adv J Ellis
INSTRUCTED
BY: Etienne Naude Attorneys.
Pretoria
FOR
THE RESPONDENT: Adv NGD Maritz SC
INSTRUCTED
BY: A B Lowe Attorneys, Pretoria