About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2011
>>
[2011] ZAKZPHC 56
|
|
Dede Pine and Timber Products CC v Blick South Africa (Pty) Ltd (AR 226/11) [2011] ZAKZPHC 56 (1 September 2011)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO: AR
226/11
In the matter
between:
DEDE PINE AND
TIMBER PRODUCTS CC
…....................................
Appellant
and
BLICK SOUTH
AFRICA (PTY) LTD
…..............................................
Respondent
JUDGMENT
Date:
September 2011
PLOOS van AMSTEL J
[1] After the matter
was argued before us on 16 September 2011 we made an order dismissing
the appeal with costs on the attorney
and own client scale. These are
the reasons for that order.
[2] The appellant
was the defendant in an action instituted by the respondent in the
magistrate’s court at Stanger for payment
in terms of a written
rental agreement relating to a Biometric Unit and the software
required for its operation. I will refer to
the parties herein as
they were referred to in the court below.
[3] The plaintiff’s
operational manager explained in his evidence that the Biometric Unit
is a fingerprint clocking machine
which is used to record the time
when employees arrive for work and when they leave. It is activated
by the employee putting a
finger on a part of the equipment, which
recognizes his fingerprint and records the relevant information. At
the end of the trial
the magistrate gave judgment in favour of the
plaintiff for the amount claimed, together with interest and costs.
[4] The only basis
on which the judgment was attacked before us was the contention that
the plaintiff had not proved that the defendant
was a party to the
contract. The contract refers to Dede Pine and Timber Products,
whereas the defendant is Dede Pine and Timber
Products CC. If I
understood the contention correctly it was that in the absence of
rectification of the agreement the plaintiff
could not have succeeded
against the defendant as the contracting party had a different name.
[5] The best place
to start is the pleadings. Rule 17(2) of the Magistrates’ Court
Rules provides that the defendant shall
in its plea either admit or
deny or confess and avoid all the material facts alleged in the
combined summons or declaration or
state which of the said facts are
not admitted and to what extent, and shall clearly and concisely
state all material facts upon
which the defendant relies. Rule
17(3)(a) provides that every allegation of fact in the combined
summons or declaration which is
not stated in the plea to be denied
or to be admitted, shall be deemed to be admitted. (It would appear
that the word ‘not’
should be read into rule 17(3), so
that the deeming provision applies to every fact which is not stated
in the plea to be denied
or to be not admitted.)
[6] It is the
function of the pleadings to define what is in issue and what is not.
Fortunately the rule maker seems to have been
alive to the evasive
habits of some draftsmen and endeavoured to cater for this problem in
rule 17(3)(a).
[7] The defendant
was described in paragraph two of the particulars of claim as ‘Dede
Pine and Timber Products CC, a close
corporation, incorporated in
terms of the
Close Corporations Act 69 of 1984
, with
registered physical address at 23b Lindley Street, Stanger, KwaZulu-
Natal and with principal place of business and chosen
domicilium
citandi et executandi at 429 District Road, Richards Bay, KwaZulu-
Natal’. The response to this in the defendant’s
plea was
as follows: ‘Save to deny that 23B Lindley Street is the
registered address of the defendant, defendant notes the
rest of the
contents of this paragraph’.
[8] The effect of
rule 17(3)(a)
is that the defendant is deemed to have admitted that
it is Dede Pine and Timber Products CC, a close corporation with its
principal
place of business and chosen domicilium citandi et
executandi at 429 District Road, Richards Bay, KwaZulu- Natal.
[9] It will be noted
from the rental agreement that the party which contracted with the
plaintiff is Dede Pine and Timber Products
with its physical site
address at District Road 429, Richards Bay. The person who signed the
agreement on behalf of the contracting
party is described as Aslam
Amra, with the title of director.
[10] In paragraph
three of the particulars of claim the plaintiff pleaded the agreement
as follows: ‘On or about 17 May 2006
the plaintiff duly
represented by an authorised representative and the defendant, duly
authorised and represented, concluded a
written agreement in the name
and style of a rental agreement (herein after referred to as “the
agreement”), a copy
which is attached hereto marked as annexure
A. Plaintiff incorporates the contents thereof herein as if it is
specifically traverse
(sic).’ The response to this paragraph in
the plea is as follows: ‘Defendant notes the contents of this
paragraph but
denies that this was the agreement between the
parties.’ In amplification thereof the defendant averred that
on or about
17 May 2006 Mr Aslam Amra, a member of the defendant,
entered into a written agreement with the plaintiff. It was said Mr
Amra
duly signed the written agreement on behalf of the defendant. It
was alleged however that the words ‘In variance to clause
3.1…
for 60 months’ were added to the agreement after signature, as
well as the initial insurance value of R44 100.00
plus vat of R
6174.00 and the total of R 50 274.00. It was further pleaded that the
defendant was always under the impression that
the total annual
rental was R 10 054.80 (vat inclusive) and that had the defendant
been aware of the initial insurance value it
would not have entered
into the agreement with the plaintiff, and that in January 2007 the
defendant advised the plaintiff that
it disputed the debit charges.
[11] A number of
points need to be made with regard to the defendant’s plea. The
date on which Mr Amra is said to have signed
the agreement, namely 17
May 2006, is the date reflected on the first page of the agreement
annexed to the particulars of claim.
The words which are said to have
been added to the agreement after signature appear on the last page
of the document. The figures
referred to in the plea relating to the
initial insurance value, VAT and the total are the figures which
appear in the column on
the last page of the document.
[12] The allegation
in the plea that the words to which I have referred were added after
the agreement had been signed was not pursued
at the trial as no
evidence was led on behalf of the defendant.
[13] In para 4 of
the particulars of claim the plaintiff pleaded the terms of the
agreement, including the fact that in terms thereof
it undertook to
lease to the defendant the equipment described therein, namely a
Biometric Unit, the software and the cabling and
installation. The
response to this in the plea is that the defendant ‘notes the
contents of this paragraph but avers that
plaintiff has breached the
terms of the agreement’.
[14] In para 7 of
the plea the defendant admitted that it failed to pay the annual
rental but averred that ‘same was due to
the breach of the
plaintiff’.
[15] In para 9 of
the plea the defendant averred that the equipment never functioned
since the date of the installation and that
the plaintiff failed to
provide the necessary training regarding the operation of the
machine, which was faulty and of no use to
the defendant due to the
lack of training.
[16] How it can be
argued in those circumstances that the defendant did not admit the
agreement on the pleadings is beyond me (subject
of course to its
contentions with regard to the content of the document).
[17] Before I refer
to the evidence I wish to deal with the application for a rescission
of the default judgment which the plaintiff
had obtained. The
defendant’s affidavit in support of the rescission application
was deposed to by one Moosa Motala, who
described himself as a member
of the defendant. In paragraph 5 of his affidavit he says: ‘On
or about the 17 May 2006, Mr
Aslam Amra, a member of the applicant,
entered into an agreement with the respondent. The said Mr Amra duly
signed the agreement
on behalf of the applicant. However, additions
were made to the agreement after signature of same.’ Further on
in the same
paragraph he says: ‘The equipment has never
functioned since the date of installation. I personally contacted the
respondent
on numerous occasions regarding same without any success.
I annex hereto marked MM4 a copy of letter dated 10 January 2007
addressed
to the respondent in this regard.’
[18] Annexed to Mr
Motala’s affidavit is the last page of the agreement annexed to
the particulars of claim, signed on behalf
of the defendant by Aslam
Amra. Also annexed to his affidavit are two letters which he wrote to
the plaintiff and in which he referred
to the agreement relating to
the “Blick clocking machine’. The last letter attached to
the affidavit is a letter from
the defendant’s attorney to the
plaintiff’s attorney, dated 15 April 2008, in which he says:
‘We act for Dede
Pine and Timber Products. Your letter dated 3
March 2008 has been handed to us with instructions to reply. We are
instructed that
the machine was never utilised by our client as your
client failed to provide the necessary training to our client
regarding the
operation of the machine. Your client is requested to
uplift the machine.’
[19] At the hearing
before the magistrate counsel for the defendant made an opening
statement in which he explained that the defendant’s
case was
that the agreement annexed to the particulars of claim was not in its
original format. He told the magistrate that the
primary issue in the
matter was whether the plaintiff had performed in terms of ‘its
own agreement’.
[20] Turning to the
evidence, Mr Naicker, the plaintiff’s operational manager,
testified that after the agreement had been
signed (which did not
involve him) it was sent to him. He contacted the defendant to make
arrangements for the installation of
the equipment as it required a
computer for the installation of the software. He personally made
arrangements with an employee
of the defendant and went there to
install the equipment. He identified the agreement which is annexed
to the particulars of claim
as the document which was given to him by
the sales department and pursuant to which he contacted the defendant
with regard to
the installation.
[21] Counsel for the
defendant put it to Mr Naicker in cross-examination that the machine
was removed on the 3 Sept 2009. He also
put it to him that the
evidence of the defendant would be that the system was not fully
operational and that from time to time
it gave problems.
[22] In his address
to the magistrate at the end of the trial counsel for the defendant
submitted that the written agreement did
not show that the subscriber
was the defendant. He said there was no dispute that there were
discussions between the parties, and
it was not in dispute that the
plaintiff supplied a Biometric system to the defendant. He submitted
that the plaintiff proved the
agreement that was annexed to the
particulars of claim, but that it was not an agreement with the
defendant, as it did not describe
the defendant as a close
corporation. He also made it clear that it was not the defendant’s
case that the document that was
annexed to the particulars of claim
had not been signed by Mr Amra.
[23] There was no
need for the agreement to be rectified. The effect of the defendant’s
plea was that it was admitted, or
deemed to be admitted, that the
plaintiff and the defendant had concluded the agreement which was
referred to in the particulars
of claim. The evidence led by the
plaintiff established that the equipment referred to therein had been
installed at the defendant’s
business premises and one of its
employees was trained how to operate it. A dispute later developed
between the parties, after
which the plaintiff removed the machine
and uninstalled the software.
[24] The fact that
the defendant was not referred to in the agreement as a close
corporation is of no consequence. It is obvious
from the pleadings
and the evidence that the defendant and the entity referred to in the
contract are one and the same. It is not
unusual for close
corporations and companies to refer to themselves in their dealings
with others by their registered name, but
without the abbreviation CC
or (Pty) Ltd which forms part of it. This is recognised in
s 63
of
the
Close Corporations Act, 1984
, which provides for the joint and
several liability of a member who is responsible for or authorised or
permitted the omission
of the abbreviation ‘CC’ in the
circumstances set out in that section.
[25] I am not
surprised that the magistrate made a comment about playing games. The
basis on which the defendant tried to avoid
liability by seizing on
the omission in the agreement of the abbreviation CC behind its name
was deplorable. This appeal was frivolous
and misguided. It never had
any prospects of success. The agreement between the parties provides
for costs on the attorney and
own client scale. In the absence of
such agreement I would have awarded costs on that scale anyway.
[26] For the
aforegoing reasons the appeal was dismissed with costs on the
attorney and own client scale.
_____________________
RADEBE
J: I agree: _____________________