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[2009] ZAGPPHC 85
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Deli Chicken (Pty) Ltd v Van Den Heever NNO (20738/06) [2009] ZAGPPHC 85 (1 June 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
DATE:
01/06/2009
CASE:
20738/06
UNREPORTABLE
In
the matter between:
DELI
CHICKEN (PTY) LTD Plaintiff
And
T
W VAN DEN HEEVER N.O.
1
st
Defendant
E
MOTALA N.O. 2
nd
Defendant
P
D BERMAN N.O. 3
rd
Defendant
M
T MASILO N.O. 4
th
Defendant
K
S MANAMELA N.O. 5
th
Defendant
J
Z H MU
LLER
N.O. 6
th
Defendant
THE
REGISTRAR OF COMPANIES 7
th
Defendant
RONETTE
RALL 8
th
Defendant
SANGIRO
ESTATES (PTY) LTD
(IN
LIQUIDATION) 9
th
Defendant
______________________________________________________
JUDGEMENT
______________________________________________________
MOLOPA
J
The
Plaintiff issued summons against the defendants
on 30 June 2006 for the order set out in paragraph 26 of the
Plaintiff’s Particulars of claim. The Plaintiff’s
Particulars
of claim comprise a bundle of about 37 pages inclusive of
the annexures.
The
Defendants excepted to the P
laintiff’s
Particulars of Claim on the grounds that it is vague and embarrassing
and/or that it lacks averments which are
necessary to sustain a cause
of action.
The
Defendants go on to elaborate in what respect are the Particulars of
Claim excipiable. This is contained in the Defendant’s
notice
of exception dated 18 July 2006 (p140-145 of the papers). The
Defendants afforded the Plaintiff an opportunity of removing
the
cause of complaint within 15 days of service of the notice aforesaid.
The Defendants initially did not respond and/ or react
to the
Defendants’ notice of exception, as a result of which the
Defendants filed an exception dated 22 August 2006 in which
the
Defendants prayed that the Plaintiff’s Claim be dismissed with
costs (p147-153) of the papers.).
S
ubsequent
to receiving the exception aforesaid the Plaintiff filed a notice of
amendment dated 26 September 2006, filed at court
on 02 October 2006,
setting out in what respects it proposes to amend the Particulars of
Claim (p1-5 of the papers). The Plaintiff’s
proposed amendments
are set out below.
The
Defendants objected to the amendment on the basis that
:
the
introduction of the amendment would render the Particulars of Claim
excipiable on the grounds set out in the notice of objection
aforesaid
;
that
the reli
ef
claimed in prayers 26.1 and 26.2 is in respect of issues which are
res
iudicata
between
the parties (based on the judgement of Van Den Heever AJ DATED
11/5/04 at p7 of the papers);
that
the proposed amendment does not address all the issues raised in the
Defendant’s notice of exception
aforesaid;
that
th
e
Defendants will be prejudiced if the amendment is allowed because
they will then have to take exception and/or file a special
plea,
resulting in the wasting of time and costs (p27 of the papers).
The
Defendants’
objection to the proposed amendment was met by a Notice of Motion
filed on 02 November 2006 by the Plaintiff for leave to amend
its
Particulars of Claim on the lines indicated (p32 of the papers). The
Defendants also filed an Answering Affidavit setting out
the
grounds/basis for their objection (p40 of the papers).
The
issues
to be decided on the papers before this court thus involve the two
interlocutory applications aforesaid: for the upholding
of the
Defendants’ exception and the other for the Plaintiff’s
proposed amendment to the Plaintiff’s Particulars
of Claim.
At
the beginning of the hearing the court was informed that the parties
had
agreed that the aforesaid interlocutory applications be heard
simultaneously as both involve the same subject matter and questions
of law.
In
essence the basis of t
he
Plaintiff’s cause of action is that certain shares held by
Sangiro Farms (Pty) Ltd, in liquidation, (“Sangiro”),
had, prior to Sangiro’s liquidation, been pledged to the
Plaintiff. The Plaintiff avers that it has loaned and advanced R400
000.00 to Sangiro, and that as security for the repayment of the R400
000.00 aforesaid Sangiro pledged some shares (900 ordinary
shares of
Sangiro Estates (Pty) Ltd , which shares comprise 90% of the issued
shares in Sangiro Estates) to the Plaintiff. That
this was done
in
securitatem debiti,
and was conditional upon due payment of the R400 000.00 together
with interest at the prime overdraft rate, as charged from time
to
time by Standard Bank of South Africa limited, on or before 31 July
2000 (“the due date”).
The
plaintiff further aver that prior to the due date Sangiro
was provisionally wound up and that the liquidators did not pay the
R400 00.00 owed to the Plaintiff. The Plaintiff maintains that
the
liquidators completely ignored and/or disregarded the pledge
aforesaid.
The
Plaintiff contends
(and this was argued by counsel for the Plaintiff) that, upon
liquidation, the previously in
securitatem
debiti
pledge, became an “out and out” pledge, entitling only
the Plaintiff to exercise voting rights in respect of the shares.
But
that the liquidators of Sangiro Estates (Pty) Ltd (in liquidation)
however took possession of the shares and exercised the
voting rights
attached to the shares with the effect of placing Sangiro Estates
(Pty) Ltd in voluntary winding-up. The Plaintiff
contends that this
was done unlawfully and thus pleaded this in the Particulars of
Claim.
As already stated above, the Defendants excepted to the Particulars
of Claim, alleging that it was vague and embarrassing and/or
lacks
averments which are necessary to sustain a cause of action, on the
grounds set out in the Defendant’s notice aforesaid.
The
Plaintiff now proposes amending the Particulars of Claim.
The
Plaintiff seeks to amend the Particulars of Claim by deleting
paragraph 16 thereof and substituting it to read as follows:
“
16.1
On date of the Deed of Pledge, the Plaintiff transferred the shares
in
securitatem debiti
to itself as is apparent from Annexures “E” and “F”
hereto.
16.2
On
28 July 2000 the winding-up of Sangiro Farms (Pty) Ltd commenced.
16.3
The
aforesaid resulted in Sangiro Farms being in breach of the terms of
the Deed of Pledge,
alternatively
constituted a breach thereof
per
se
on
said date.
16.4
As a further consequence of the aforesaid breach, the Plaintiff
irrevocably and
in
rem suam
became entitled and authorised to dispose of the shares forming the
subject matter of the Deed of Pledge or to cause transfer thereof.
16.5
The
Plaintiff acted in pursuance of the aforesaid authority on said date
of breach and also perfected the Deed of Pledge.
16.6
The
transfer of the shares to the Plaintiff thereupon became a permanent
transfer, as the Plaintiff was entitled to effect same”.
By
inserting further sub- paragraphs to the existing paragraph 25:
“
25.2
The affidavit made by the Eighth Defendant and the contents thereof,
which were material to the outcome of the aforesaid application,
were, in respect of the contents of paragraphs 3, 4, 5 and 6 of her
affidavit delivered in said application, false and untrue.
The
remainder of the contentions of the parties and the basis upon
which the prior application of the Plaintiff was opposed,
more
fully appears from a copy of the judgment, annexed marked Annexure
“H” hereto.”
In
essence the Plaintiff, contending that it was divested of its 25
shares obtained from Choice holdings, that its 25 shares purchased
from one Eric Aspelin(“Aspelin”) was ignored, and that it
was in effect divested from the 90% shares which had been
pledged to
it by Sangiro, also that it was never repaid the R400 000.00 referred
to here above, (i.e. that Sangiro was actually
in breach, thereby
that in terms of the pledge Plaintiff became the full owner), seeks
to place the contentions regarding its
shareholding before court
(through the pleadings) so that it can recover the ownership of its
shares, the consequences of which
would (if upheld) be that the
liquidators of Sangiro could not have taken the special resolution to
have Sangiro Estates wound
up, the effect of which would be to set
aside the winding up aforesaid.
The
Defendants contend (and it was argued by counsel for the Defendants)
that by virtue of section 341(2) of the Companies Act, after
the
liquidation of Sangiro (on 28 July 2000), and afterwards when their
debt became due and payable, there could not have been
a transfer of
shares to the Plaintiff. That therefore the proposed amendment on
this aspect introduces an excipiable allegation
to the pleadings.
This cannot be correct in my view, since, if it were to be shown at
trial that the liquidators simply ignored/disregarded
the pledge,
that might be found to be a repudiation thereof. The proposed
amendment, in my view fully addresses this. The Defendant
will be
able to plead to the Particulars of claim. These are issues to be
fully ventilated by the parties at trial.
Basically
the Defendants appear to deny the Plaintiff’s rights consequent
upon a breach of the terms of the pledge and seek
to avoid the
consequences of an “out and out’ pledge. As already
stated, this is to be pleaded and decided on at trial
and cannot form
the subject matter of an exception or opposition to an amendment.
There cannot be any merit to the objection.
In
the event of the trial court finding that the agreement had been
breached, and then it would be consistent with the express terms
of
the pledge that the Plaintiff then became entitled to dispose of the
shares and to perfect its rights in terms of the pledge.
The
Defendants further contend that the disputes between the parties
regarding the registration of the shares had already been
decided by
this Honourable Court and is therefore
res
iudicata
.
The
Defendants contend that the subject matter of this claim was already
decided by a competent court on the same questions of
law involving the same parties, and relies heavily for this
contention, on the judgement of Van Den Heever AJ (p7 of the papers).
In
this regard the Plaintiff seeks to plead that subsequent to the
finalisation of the prior opposed application, he was informed
of the
extent of the perjury and fraud committed by, in particular, the
previous secretary (the eighth Respondent) on whose evidence
the
court previously relied. The court notes that the eighth Defendant
(Ms Rall) herself is not opposing this application.
The
Plaintiff’s counsel argued that the Plaintiff has been
defrauded and that the court has also been defrauded in prior papers
by Ms Rall. That in coming to its judgement the court previously
relied on her false and untrue evidence. The Plaintiff pleads
this in
paragraph 25 of its proposed amendment aforesaid.
From
the judgement of Van Den Heever aforesaid it appears that Ms Rall who
was a company secretary of Sangiro Estates had deposed
to an
affidavit wherein she alleged that Aspelin had sold his 25% shares to
one Van Der Merwe
,
a director of the Plaintiff, or his nominee. That Van Der Merwe had
nominated Sangiro (Sangiro farms) as the purchaser of the
shares,
thus Sangiro was reflected in the share register.
Refer
paginated
p15
l6-11.
It
is noted that reference is made in the judgement that in the share
register the name originally/initially was that of the plaintiff
(Deli Chicken (Pty) Ltd) but that this was deleted by drawing a line
through the name and substituting it for Sangiro Farms Pty
Ltd
(Sangiro), whereafter Ms Rall affixed her signature next to the
alteration.
Refer
paginated p14 l14-20.
Van Der Merwe apparently denied Ms Rall’s version, contending
that the shares aforesaid were issued to Deli Chicken (Pty)
Ltd, the
Plaintiff herein
.
Refer p15 l15-16.
If
one
has
regard to the judgement of Van Den Heever AJ aforesaid one sees that
the judge therein stated that he could not decide the issue
pertaining to Ms Rall and the correctness of the information on the
share register because of a dispute of facts on the papers.
However,
on the strength of what was stated by Ms Rall in her affidavit
aforesaid, Van Den Heever AJ found that the First Applicant,
i.e.
Plaintiff herein, failed to prove that it is a member of Sangiro
Estates, therefore lacked
locus
standi
.
Refer
p20 l1-5.
On
what is stated here above and on a proper analysis of Van Den Heever
AJ‘s judgement I do not think that the Defendant can
rely on
res
iudicata
.
Especially when the Plaintiff alleges that the judgement was
allegedly based on fraud. From the judgement it does not look like
the issue of fraud and/or false evidence on the part of Ms Rall was
ever canvassed. The view therein was that the information
in the
register was incorrect and/or that it was a mistake .
Refer
p15 l18, p16 lines 1 and 9-10.
The
Defendants have to plead to the proposed amendment and the issues
then have to be fully ventilated at trial.
If
one has regard to the grounds set out in the Defendants’
notices in conjunction with the Plaintiff’s proposed amendment,
in my view the Plaintiff’s proposed amendments addresses all
the issues raised in the Defendants’ notices aforesaid.
In
the circumstances the exception is dismissed with costs, and the
amendment is allowed with costs, such costs to include the costs
of
two counsel.
L
M MOLOPA
JUDGE
OF THE HIGH COURT