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[2011] ZAECELLC 5
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Diamond Igoda View (Pty) Ltd and Another v Igoda Farm CC (EL 790/10, ECD 1590/10) [2011] ZAECELLC 5 (14 June 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO.: EL 790/10
ECD
1590/10
In the matter between:
DIAMOND IGODA VIEW (PTY) LTD
…..............................................
First
Applicant
CHARLES ROBIN DIAMOND
…...................................................
Second
Applicant
And
IGODA FARMS CC
….........................................................................
RESPONDENT
JUDGMENT
BESHE J:
[1] This is an application for an
order in terms of Rule 30 of the Uniform Rules of this court setting
aside as irregular the service
of summons purportedly served upon the
applicants (defendants in the main action).
[2] Respondent issued summons against
the applicants on the 28
th
of August 2010 claiming:
(a) An order declaring the sale
agreement entered into between the plaintiff who is the respondent in
this application and the defendants
who are applicants in this
application, to be null and void and of no further effect.
(b) An order directing the plaintiff
to repay to the defendants the purchase price and such monies as may
become owing in terms
of the provisions of section 28(1)(a) after the
deduction of such monies as may be due to it in terms of section
28(1)(b).
Alternatively:
(c) Payment of the sum of R1 230
000-00, together with interest thereon at the prescribed legal rate
calculated from date of service
of the summons to date of payment.
(d) Cost of suit, together with
interest thereon at the prescribed legal rate calculated from a date
14 days after allocatur to
date of payment.
(e) Further and or alternative relief.
[3] The applicants are described as
follows in the summons:
Diamond Igoda View (Pty) Ltd, a
Company duly incorporated in terms of the Company Laws of the
Republic of South Africa, with its
registered office and chosen
domocilium citandi et executandi
at Bate Chubb & Dickson
Inc, No 3 Norvia House, Western Avenue, Vincent, East London
(hereinafter called the First Defendant);
and
Charles Robin Diamond, an adult male
businessman of Hennerton, Wargrave, Berkshire, England, has appointed
Bate Chubb & Dickson
Inc, at No 3 Norvia House, Western Avenue,
Vincent, East London
AND/OR
Bax Kaplan Inc, No 2 Clevedon
Road, Selbourne, East London; as his authorised agents in respect of
the administration of his financial
and commercial interests and
related legal affairs. There will accordingly be service of these
proceedings upon the aforesaid agents.
[4] It is common cause that service
was indeed effected upon the said agents.
[5] Applicants contend that there has
not been proper service in that first applicant’s registered
address is 21 A Western
Avenue, Vincent, East London and not 3 Norvia
House, 34 Western Avenue, Vincent, East London which is the address
of Chubb &
Dickson Inc.
[6] In so far as second applicant is
concerned, applicants contend that neither Bate Chubb & Dickson
Inc. Or Bax Kaplan Inc.
are authorised to accept service of summons
nor are they “authorised agents in respect of the
administration of his financial
and commercial legal affairs”.
[7] Before I deal with the merits of
this application, I will deal with the two points that have been
raised by the respondents
in limine
, they are that:
1. The original returns of service of
copies thereof being the subject matter of the complaint are not
attached to the papers;
2. The application having been brought
in terms of Rule 30 of the Uniform Rules of Court, the applicants
have not complied with
Rule 30 (2) before resorting to the
utilisation of the Rule.
[8] It is indeed so that that the
return of service is not attached to the papers.
[9] In my view however nothing turns
on this point because the fact that the summons were served upon the
agents aforementioned,
is not in dispute, it is the manner of service
that is the subject matter of the application.
[10] Regarding the second point raised
in limine
, namely failure by applicants to comply with Rule 30
(2):
Rule
30 which deals with an Irregular Proceedings provides:
A
party to a cause in which an irregular step has been taken by
another party may apply to court to set it aside.
An
application in terms of subrule (1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if –
the
applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
the
applicant has, within 10 days of becoming aware of the step, by
written notice afforded his opponent an opportunity of removing
the
cause of complainant within 10 days;
the
application is delivered within 15 days after the expiry of the
second period mentioned in paragraph (b) of subrule (2).
[11]
In casu,
summons having
been served on the 26
th
of October 2010, at the offices of
attorneys Bax Kaplan Incorporated, the latter attorneys, addressed a
letter to respondent’s
attorneys – Squire Smith and
Laurie Incorporated dated the 30
th
of October 2010.
[12] The letter reads as follows:
“
Dear
Madam,
We
refer to the summons which was served at our offices on the 26 August
2010 and are instructed to record the following:-
The
Particulars of Claim amount to an irregular step entitling our
client to act in accordance with the provisions of Uniform
Rule 30
inasmuch as they do not comply with the provisions of Rule 18(1) in
that they have not been signed by an Advocate or
by an Attorney with
right of appearance in terms of Section (2) of the Right of
Appearance in Courts Act, 1995. It is trite law
that where an
attorney purports to sign pleadings in the High Court in compliance
with Rule 18(1), such attorney is obliged to
sign twice, once as an
attorney representing the Plaintiff’s firm and secondly as an
attorney who has been duly certified
in terms of Section 4(2) of the
aforesaid Act. The Particulars of Claim also require to state that
the attorney who is signing
is so duly certified.
This
firm has not been and is not authorised to accept service of summons
on the Second Defendant and accordingly the service
at our offices
is defective and of no effect.
Our
clients deny that the offices of Bate Chubb & Dickson Inc have
been chosen as the
domicilium citandi et executandi
for
purpose of service of any summons. The domicilium clause apparently
relied upon by the Plaintiff which appears in the Deeds
of Sale
attached to the Particulars of Claim clearly relates to the delivery
of notices in terms of the Deeds of Sale and cannot
in any manner be
construed as relating to the service of legal process some six years
later.
A
Deeds Office Search has revealed that the Plaintiff is not possessed
of any fixed property and our clients have reason to believe
that
the Plaintiff does not have the funds necessary to settle any
adverse costs orders which may be obtained against the Plaintiff
and
if this matter is to proceed our instructions are to make
application for security costs.
We
believe, with respect, that the Particulars of Claim are excipiable
for reasons which we believe will be apparent to you upon
a careful
consideration thereof.
For,
inter alia, the aforesaid reasons, we invite you to withdraw the
action and to tender payment of our clients’ costs before
your
client becomes mulcted in substantial legal costs in attempting to
pursue this action.
Any
attempt to rectify the aforesaid defects by amendments will be
opposed, inter alia, on the grounds that the claims have become
prescribed as the summons is defective for the aforesaid reasons, and
an amendment cannot be allowed to resuscitate a prescribed
action.
Our
clients believe that the summons was served in order to avoid
prescription and on order to satisfy the Development Facilitation
Tribunal.
Would
you please urgently revert to us before we take the appropriate steps
in regard to the aforesaid deficiencies and/or defects.”
On the 20
th
of October 2010
the applicants served a notice of the present application.
[13]
Mr Kincaid
for the
respondent argued that this letter is not a notice as envisaged in
Rule 30 (2) (b) but a letter of persuasion.
[14] In
Chelsea Estates and
Contractors CC v Speed-O-Rama
1993 (1) SA 198
ECD at 202 E
Mullins
J
stated that: “All that Rule 30 (2) requires is that the
notice must specify the particulars of the irregularities complained
of.” In my view this also applies to Rule 30 (2) (b).
[15] I have not been referred to any
authorities that suggest in what form the notice envisaged in Rule 30
(2) (b) should be. I
have not been able to find any such authorities.
[16] However my understanding of the
written notice – is to warn or give notice in advance of ones
intention in writing to
another.
[17] In the letter dated the 30
th
of August 2010 the applicants state clearly what their causes of
complaint are. The first line of paragraph one of the letter makes
reference to Rule 30.
[18] The remarks of
Leach J
as
he then was in
Ex Parte
Monnie et Uxo 1996 (3) 97
SECLD
in a case counsel for the respondent referred this
court in regard to the merits of this application, appear to be
opposite in
regard to the question whether the letter aforementioned
served the purpose envisaged in Rule 30 (2) (b). He had this to say
at
page 99 D-E:
“
Insofar
as procedural matters are concerned, our law today inclines towards
flexibility rather than rigidity as substance, rather
than form, is
of primary importance – see the remarks of
Didcott
J
in
Ex
Parte Mason
1981 (4) SA 648
D at 651 E-F.
”
[19] In my view the letter in question
made it clear than an intention exists to utilise the Rule 30
mechanism should the respondents
not remove the causes of complaint.
It is for these reasons that I am unable to uphold the two points
raised by the respondent
in limine
.
[20] Coming to the merits of the
application, namely whether the service of summons was proper as
provided for in Rule 4 of the
Uniform Rules of this Court.
[21] Rule 4 provides for the manner in
which notice of legal proceedings or process should be brought to the
attention of the person
against whom legal proceedings are sought to
be instituted.
Rule 4 service provides:
(1)
(a) Service of any process of the court directed to the sheriff and
subject to the provisions of paragraph (aA) any document
initiating
application proceedings shall be effected by the sheriff in one or
other of the following manners:
(i)
By delivering a copy thereof to the said person personally: Provided
that where such person is a minor or a person under legal
disability,
service shall be effected upon the guardian, tutor, curator or the
like of such minor or person under disability;
(ii)
by leaving a copy thereof at the place of residence or business of
the said person, guardian, tutor, curator or the like with
the person
apparently in charge of the premises at the time of delivery, being a
person apparently not less than sixteen years
of age. For the
purposes of this paragraphwhen a building, other than an hotel,
boarding-house, hostel or similar residential building,
is occupied
by more than one person or family, ‘residence’ or ‘place
of business’ means that portion of
the building occupied by the
person upon whom service is to be effected;
(iii)
by delivering a copy thereof at the place of employment of the said
person, guardian, tutor, curator or the like to some person
apparently not less than sixteen years of age and apparently in
authority over him;
(iv)
if the person so to be served has chosen a
domicilium
citandi,
by
delivering or leaving a copy thereof at the
domicilium
so chosen;
(v)
in the case of a corporation or company, by delivering a copy to a
responsible employee thereof at its registered office or
its
principal place of business within the court’s jurisdiction, or
if there be no such employee willing to accept service,
by affixing a
copy to the main door of such office or place of business, or in any
manner provided by law;
(vi)
by delivering a copy thereof to any agent who is duly authorized in
writing to accept service on behalf of the person upon
whom service
is to be effected;
(vii)
… … .
[22] As indicated in paragraphs 5 and
6 above, applicants contend that the purported service upon the
applicants is not in compliance
with Rule 4 and the law and therefore
of no effect.
[23] According to the applicants,
first applicant has its registered office at 21 A Western Avenue,
Vincent, East London and not
Bate Chubb & Dickson Inc, No 3
Norvia House, Western Avenue, East London. This is not denied by the
respondent.
[24] It is however not clear on what
basis respondent’s claim that first applicant chose Bate Chubb
& Dickson Inc. as
its
domicilium citandi et executandi.
[25] The subject matter of the main
application is an agreement of sale entered into between the
respondent (the seller) and the
second applicant (the purchaser) on
the 27
th
of August 2004 as would appear from Deed of Sale
marked annexure “A”.
[26]
Domicilium
is dealt with
in clause 4 of the Deed of Sale which reads as follows:
“
All
notices intended for the Purchaser shall be sent to him by registered
mail to c/o Bate Chubb & Dickson Inc, Suite 3, Norvia
House,
Western Avenue, East London, which address he selects as his
domicilium
citandi et executandi
and
any such notices shall be deemed to have been duly delivered to the
Purchaser 5 (five) days from date of posting thereof by
the Seller or
his agent.” (my underlining)
[27] According to the Trilingual legal
dictionary, 2
nd
edition by V A Hiemstra and H L Gonin;
domicilium citandi et executandi
means: plek van dagvaarding
en eksekusie, domicile of summons and execution.
[28] In its particulars of claim
respondent alleges that:
7.
After the execution of annexure “A” and without the
knowledge and or agreement of the plaintiff, a corporate entity
described as
Shell
Case 91 (Pty) Ltd
was
substituted as the purchaser.
8.
But for the substitution of the purchaser, no further amendments were
effected.
9.
A copy of the “substituted deed of sale” is annexed
hereto marked “B”.
[29] It is indeed so that in annexure
“B” the
domicilium
is the same as it appears in
annexure “B”.
[30] It is clear from what I have
stated above that the name of first applicant does not appear on any
of the two annexures. As
indicated in paragraph 23 above, first
applicant has its registered office at 21 A Western Avenue, Vincent,
East London. No allegation
is made in the respondent’s
particulars of claim that second defendant authorised Bate Chubb &
Dickson Incorporated and
or Bax Kaplan Incorporated in
writing
to accept service of the summons as envisaged in Rule 4 (i) to (vi).
[31] This being the case I am of the
view that there has not been a proper service insofar as first
applicant is concerned in the
event of the first applicant not being
a party to the Deed of Sale (Sale Agreement).
[32] Insofar as second applicant is
concerned,
Mr De La Harpe
argued that upon the plain reading
of clause 4 of annexures “A” and “B” the
obvious and patent intention
of the parties was that the
domicilium
nominated was effective only in respect of “all notices
intended for the purchaser” and no more. He further argued that
even if the phrase “
domicilium citandi et executandi
”
were to be given a broader meaning encompassing service of process,
such a nomination cannot remain valid/effective three
years later and
well after transfer of the immovable property that was the subject of
the agreement of sale.
[33] In my view, bearing in mind, the
meaning of
domicilium citandi et executandi
there is no reason
why the nomination should be read to be limited only to notices
intended for the purchaser. More so that these
proceedings arise from
that agreement.
[34] It is a feature of this
application that it was made outside of the time limits stipulated in
Rule 30 (2) (c). In an affidavit,
applicant’s attorney,
Lesley
Nelson Clarke,
explains the reasons for the non-compliance and
request condonation of same.
[35] In the result the following
order is made:
(i) Condonation of non-compliance
by the applicants with time limits laid down by Rule 30 (2) (c) is
granted.
(ii) The service of summons issued
by the respondent on the first applicant, in the event that he is not
a party to the agreement
of sale entered into in respect of portion 1
of farm number 1009 Igoda Mouth, East London entered into on the 24
th
of August 2004 is declared to be of no effect and is set
aside.
(iii) The respondent is directed to
take steps to re-serve the summons on the first applicant at its
registered office or principal
place of business within the court’s
jurisdiction.
(iv) The application for the
setting aside of service in respect of second applicant is dismissed.
(v) Respondent is ordered to pay
70% of the costs of this application.
_____________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For Applicant ADV: D H De La Harpe
Instructed by BAX KAPLAN INC.
For Respondent ADV: Kincaid
Instructed by SQUIRE SMITH &
LAURIE INC.
Date Heard 16 November 2010
Date Reserved 16 November 2010
Date Delivered 14 June 2011