About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 30
|
|
Tlale NO and Another v Momentum Group Ltd (3471/2007) [2011] ZAFSHC 30 (17 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3471/2007
In the case between:
PHUTI JOYCE TLALE
N.O.
….............................................
1
st
Applicant
PHUTI JOYCE TLALE
…....................................................
2
nd
Applicant
and
MOMENTUM GROUP
LIMITED
….......................................
Respondent
JUDGMENT:
VAN DER MERWE, J
_____________________________________________________
HEARD ON:
11 FEBRUARY 2011
_____________________________________________________
DELIVERED ON:
17 FEBRUARY 2011
_____________________________________________________
[1] This is an
application for leave to appeal against the judgment delivered on 11
November 2010. For convenience, I will refer
to the parties as in the
action.
[2] On 11 November 2010
the following orders were made:
“
1. The
exception against the third party notice is upheld.
The third party notice is struck out.
The application for leave to amend is
dismissed.
The defendants are granted leave to
amend the third party notice within ten days of date of this
judgment.
The defendants are ordered to pay the
costs of the exception and the notice of amendment and application
for leave to amend the
third party notice.”
[3] The defendants intend
to attack all these orders on appeal. I prefer not to decide this
application on the basis that paragraph
3 of the order is not
appealable and I assume that it is. The test to be applied is well
known, namely whether there are reasonable
prospects of success on
appeal.
[4] The judgment
recognises that the claim of the defendants against the third party
is based on delict. The problem lies with the
relief claimed. The
judgment holds that the third party notice is excipiable, and would
remain so even if amended as proposed,
on two grounds, each dealing
with a substantive prayer. The first ground is that an order that the
third party is obliged to make
payment to the defendants’
creditor in order to extinguish the debt of the defendants, cannot in
law be claimed in delict.
The second ground is that the third party
notice contains no allegation that the defendants suffered damages
consisting of a remaining
balance of the proceeds of the policy had
the proceeds been timeously utilised to extinguish the debt owed to
the plaintiff.
[5] The argument that the
first ground was not covered by the exception or argued before me, is
without substance.
In part of the exception
the claim of the defendants was misconceived as one in terms of the
policy, but to this was added that
the defendants
“…
also
have no claim in law that the third party is liable to pay the
plaintiff”
and
“…
have
not pleaded any basis in fact or law to substantiate the allegation
that the third party is liable to pay ‘
any
amount that is required in law to extinguish the defendant’s
indebtedness to the plaintiff’
,
such being a different amount to the sum assured in terms of the
policy.”
The point was argued
before me
inter
alia with reference to
DODD v ESTATE
CLOETE AND ANOTHER
1971 (1) SA 376
(EC) specifically at 379G
where the following is stated:
“
My
conclusion therefore is that, if the respondents have any claim
against the excipient at all, their claim is for the payment
of
damages. Such a right cannot be equated to a right to claim
indemnity. It is the converse of such right.”
[6] Counsel for the
defendants did not contest the legal position in this regard. There
can be no doubt that an order that a third
party must satisfy the
judgment entered against the defendants in favour of the plaintiff,
would oblige the third party to make
payment to the plaintiff. It was
argued however that the third party notice and the application to
amend it should have been considered
separately and that the
unamended third party notice contains reference to payment to the
defendants in the following paragraph:
“
In the
premises, the third party is liable to pay to the plaintiff,
alternatively
,
the defendants any amount that is required in law to extinguish the
defendants’ indebtedness to the plaintiff.”
[7] There are two
difficulties with this argument. The first is that the third party
notice does not state any relief or remedy
claimed. It therefore
falls foul of rule 13(2) and this point was specifically taken in the
exception. The third party notice can
therefore not stand on its own.
The second is that this paragraph is retained in the third party
notice as proposed to be amended
but not followed by a prayer for
payment of damages to the defendants.
[8] The defendants are
also not without any remedy. The plaintiff claims from the defendants
payment of the amount of R322 344,37
together with interest thereon
calculated at the rate of 13% per annum from 13 June 2007 to date of
payment thereof. The claim
against the third party is expressly
premised thereon that the defendants are liable to the plaintiff for
payment of this amount
and interest. That would therefore represent
the defendants’ damages as a result of the delict pleaded. The
defendants should
simply claim payment to them by the third party of
damages in this amount and interest thereon.
[9] Regarding the second
ground counsel for the defendants could only refer to paragraph 6.8
of the third party notice as proposed
to be amended. In paragraph 6.7
thereof it is alleged that the plaintiff received payment in the
amount of R172 902,30. In paragraph
6.8 it is alleged that this
amount was equal to or exceeded the amount that was owed to the
plaintiff by the defendants. This is
followed by paragraph 6.9 in
which it is stated that in the premises the debt that was owed by the
defendants to the plaintiff
was extinguished when the payment
referred to in paragraph 6.7 was made. Then follows paragraph 7
quoted in the judgement. In paragraph
9 it is stated:
“
The amount
payable in terms of the insurance policy as at the date of the
deceased’s death and the amount that was claimed
by the
plaintiff from the third party, and the balance of the bond account
as at the date of the death of the deceased are known
to the third
party and the plaintiff, but are not known to the defendants.”
[10] Apart from the
provisions of rule 18(10), there is clearly no allegation that the
defendants suffered damages because a balance
of the proceeds of the
policy would have remained after payment of the debt.
[11] It was argued that
paragraphs 2 and 4 of the order are inconsistent. I do not understand
how an appeal on this point can have
any practical effect or result.
But in any event in terms of a longstanding practice of our courts, a
pleading that has been struck
down or set aside on exception, may be
amended, because the pleading nevertheless remains on the file and in
existence. See
GROUP FIVE BUILDING LTD v GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA (MINISTER OF PUBLIC WORKS AND LAND AFFAIRS)
[1993] ZASCA 4
;
1993 (2) SA 593
(A) at 603E – H and
CONSTANTARAS v BCE
FOODSERVICE EQUIPMENT (PTY) LTD
2007 (6) SA 338
(SCA) at 348
to 349.
[13] There is no merit in
an appeal against costs only and certainly no exceptional
circumstances within the meaning of section
21A(3) of the Supreme
Court Act, nr 59 of 1959.
[14] The application is
dismissed with costs.
_________________________
C. H. G. VAN DER
MERWE, J
On behalf of the
applicants: Adv. F. R. Memani
Instructed by:
Boiu Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. J. Reinders
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
/eb