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
>>
2008
>>
[2008] ZAFSHC 52
|
|
MBT Petroleum (Pty) Ltd v Meyer (825/2008) [2008] ZAFSHC 52 (29 May 2008)
IN
THE
HIGH COURT OF SOUTH AFRICA
(ORAN
GE
FREE STATE PROVINCIAL DIVISION)
Case
No
.
: 825/2008
In
matter
between:
MBT
PETROLEUM (
PTY)
LTD
Plaintiff
And
PIETER
FREDERIK MEYER
Defendant
HEARD
ON
:
8
MAY 2008
JUDGMENT
BY
:
K.J.
MOLOI, AJ
_____________________________________________________
DELIVERED
ON
:
29
MAY 2008
[1] The
plaintiff is a private company based in Pretoria doing business as a
supplier of diesel pro
ducts.
The defendant is a dealer in diesel products and operates a filling
station from premises leased from one Frikkie Albertse
outside
Bloemfontein on the N1 road.
[2] The
plaintiff issued a provisional sentence summons against the defendant
based on an acknowledgement of debt allegedly signed
by the defendant
on 7 December 2007 attached to the summons as annexure “A”.
The claim was for payment of an amount
of R530 098,77 being in
respect of goods sold and delivered at the defendant’s instance
and request. According to the acknowledgement
of debt the amount was
to be paid in two instalments interest-free, namely R200 000,00 on
date of signature and the balance of
R330 089,77 on 19 December 2007.
[3] The
summons called upon the defendant to pay the said amount to the
plaintiff failing which to appear before court personally
or through
a legal representative on 20 March 2007 to admit or deny his
liability and that if he denied liability, he should file
an
affidavit by 19 March 2008 wherein he should setout the grounds of
his defence. The summons also stated the consequences of
his failure
to do so.
[4] On
14 March 2008 defendant filed the required affidavit wherein he
indicated his intention to oppose the granting of provisional
sentence and set out his defence. He raised two points
in
limine
relating
to the defects in the summons, namely:
“
(a) that the
summons did not require him to admit or deny his signature on the
said acknowledgement of debt nor call upon him to
admit or deny the
authenticity of the signature or authority of his agent;
(b) that the
summons did not state that the amount claimed was due and payable.
”
[5] The
affidavit further sets out the grounds of defence namely that the
claim has been extinguished by the conclusion of an oral
agreement in
terms of which the defendant “made over” his lease
agreement with Frikkie Albertse to the plaintiff.
A copy of a letter
dated 7 December 2007 addressed to Mr Frikkie Albertse was attached
as annexure “A” to the defendant’s
affidavit to
confirm the purported verbal agreement and read as follows:
“Mnr
Frikkie Albertse
Plaas Avenham
Bloemfontein
Oom
Na aanleiding van ons gesprek gister
asook oom se gesprek met Mnr Johan Fouche van MBT Petroleum PTY Ltd
vandag net die volgende.
1. Ek is onder verpligting om voor
einde van besigheid op Woensdag die 12de December 2007 R 300 000 aan
MBT te betaal.
2. Sou ek in
gebreke bly met die bogenoemde staan ek die huurkontrak wat tussen
myself en u ten opsigte diesel depot af.
3. Verder verleen die afstandoening
van die depothuurkontrak die reg aan MBT Petroleum om met die
huurkontrak voort te gaan en besigheid
vanaf die perseel te bedryf.
Geteken te Bloemfontein op 07 Desember
2007
PF Meyer Mnr
Frikkie Albertse”
It
must be mentioned that the said letter was signed by two officials of
the plaintiff, namely, J Fouche and C E Pietrie as witnesses.
[6] In
its reply the plaintiff denied the existence of the alleged oral
agreement and, consequently, the alledged extinction of
the debt.
[7] After
receiving the defendant’s opposing affidavit the plaintiff
filed a notice of intention to amend its summons to address
the
points raised
in
limine
.
The notice was delivered on 7 April 2008 and did not mention that
the defendant, if he intended objecting to the intended amendment,
should do so within ten (10) days of the service of the notice upon
him as required by Rule 28 of the Uniform Rules of Court.
The
amendment itself was, in fact, delivered on 18 April 2008, i.e. two
(2) days before the expiry of the prescribed ten-day period
calculated from the 7
th
April 2008.
[8] The
summons was signed by the applicant’s Pretoria-based counsel
and attorney Smith of the firm Du Plessis Phukubye Smith
also of
Pretoria. It was furthermore signed by the registrar of this court,
though she was indicated on the summons as the Registrar
of the High
Court, Pretoria.
[9] At the hearing of
this matter on 8 May 2008 the following points were raised by the
defendants:
1. that
the summons was a nullity as it was signed by an attorney who is not
practising within the area of jurisdiction of this
court as required
by Rule 18 and was purportedly issued by the Registrar of the High
Court, Pretoria;
2. the
amendment was meant to rectify the fact that the summons failed to
call upon the defendant to verify his signature on the
acknowledgement of debt and to introduce the allegation that the debt
was due and payable. The amendment did not comply with the
requirements of Rule 28 and there was no application made to condone
this defect;
3. the
signing of the letter of the 7
th
December 2007 by the two officials of the plaintiff, one of whom had
been acting as its representative throughout, made the plaintiff
a
party to that agreement and consequently constituted an agreement
extinguishing the debt owed to the plaintiff by the defendant;
and
4. there was no
allegation that the defendant had defaulted with the payments in
terms of the acknowledgement of debt, making the
debt amount due and
payable.
[10] It
was argued on behalf of the plaintiff, on the other hand, that the
insertion of the word Pretoria where the registrar of
this court was
meant to sign is simply an error and that the word must be read as
referring to Bloemfontein and that this alone
cannot nullify the
summons. An affidavit by one Barbara Cordier, an attorney attached
to the plaintiff’s Bloemfontein correspondents
was handed in
and she confirmed having attended to the issuing of the summons at
this court before service. I personally verified
that the registrar
or someone authorised by her duly issued the summons and signed it.
Cordier, however, did not say, who signed
the summons as an attorney.
[11] As
regards the points
in
limine
,
it was contended on behalf of the plaintiff that the plaintiff was
entitled to amend the summons and that the court cannot refuse
the
same unless the summons was incurably defective. This is, indeed
correct. Furthermore, it was argued that the proposed amendment
was
not objected to and it could consequently not be contended that the
court should not grant the same. This is not entirely
correct as
will be seen hereunder. It was further argued that as the
acknowledgement of debt was not disputed it consequently
established
a
prima
facie
case against the defendant. This is not correct as this would be the
case only upon proof or admission by the defendant that the
signature
on the acknowledgement was, in fact, his.
[12] As
regards the alledged oral agreement in terms of which the lease
agreement was
“made
over”
to the plaintiff, it was argued that the force of an oral agreement
cannot supersede that of a written agreement and that defendant
still
had to prove the existence of the oral agreement, which was, at any
rate, disputed. Moreover, so it was argued, it is improbable
that
the plaintiff would enter into an agreement in terms of which he
would write off an amount of R530 089.77 for the mere
“making
over”
of a lease agreement. The defendant had stopped operating the
business as the plaintiff had ceased the supply of diesel products
and the plaintiff could directly negotiate a lease agreement of the
premises with Albetse if needs be. It was also argued that
the
plaintiff, as a wholesaler of diesel-products, may, by law, not
operate a filling station. These are issues for another day.
[13] Provisional
sentence proceedings are extra-ordinary and drastic by nature and are
regulated by rule 8 of the Uniform Rules.
The Rule reguires the
summons to contain the following for validity:
“
(a) a call upon the defendant
to pay the amount claimed or to appear (personally or represented) to
admit or deny liability;
(b) a day for the said appearance in
court;
(c) a proper cause of action set out
with sufficient particularity and clarity;
(d) a call upon the defendant to file
an affidavit setting forth the grounds of his defence;
(e) a call upon him to admit or deny
his own or his agents’ signature;
(f) informing the
defendant of the consequences of his failure to pay the amount
claimed and of his right to receive security
de
restituendo
if he should pay the claim:
Civil
Procedure in the Supreme Court
,
Harms, Butterworth B79 Issue 35.”
[14]
The
attack against the validity of the summons for failure to call upon
the defendant to admit or deny his or his agent’s
signature is
a material one. See
Van
Rensburg v De Lange
1947 (1) SA 664
(W) at 665 where the following was stated:
“
It is quite
clear that a plaintiff is not
entitled
to provisional sentence on a summons not containing these words,
which are absolutely vital as they represent the whole
theory and
practice on which provisional sentence is based.”
See
also
Gordon,
N.O. v Mc Donald
,
1958 (1) 713 (N) at F-H and
CRC
Engineering (Pty) Ltd v J.G. Dunbar & Sons (Pty) Ltd
;
1977 (1) SA 710
(W) at 7123 B-C.
[15] Since
provisional sentence is for the benefit of the plaintiff it is
imperative that the plaintiff ensures that he / it complies
strictly
with the requirements in order to be entitled to that benefit which
is drastic for the defendant and extraordinary by
nature.
[16] In
terms of Rule 28 an amendment is effected in two ways: Firstly, when
a party served with a proper notice fails to deliver
an objection
within the ten-days period. He is then deemed to have consented to
the amendment: R 8 (5). This consideration steps
in, however, only
after the expiry of the prescribed period of ten (10) days and not
before. Secondly, when he has delivered an
objection within the
prescribed period, the party seeking the amendment may lodge an
application to court for leave to amend.
This application must be
made like all the other applications the rules of which have
crystalised. It is in the latter circumstances
that the court has a
discretion to allow or disallow an amendment and the court’s
discretion to allow an amendment is,
“limited
only by considerations of prejudice or injustice to the defendant”
.:
Supreme
Court Practice: Erasmus
on p. 72.
The
court cannot interfere where the plaintiff, in disregard of the
rules, proceeded to file an amendment before the expiry of the
ten-days period and argue that defendant has not objected to the
notice.
[1
7]
In
casu,
the notice of the contemplated amendment was served on 7 April 2008.
The amendment itself was served on 18 April 2008 when the
ten days
period would only expire on 21 April 2008. It was argued on behalf
of the plaintiff that the defendant had not filed
an objection and
therefore the amendment ought to be granted. This despite the fact
that no application was made to the court
in terms of the rule. The
amendment was served two days before the expiry of the ten-day period
during which the defendant had
the right to object. The service of
an objection by the defendant at that stage would fall outside the
ambit of the provisions
of Rule 28 and would itself be improper as he
is expected to object to the notice of intention to amend and
certainly not to the
“amendment” itself.
[18] The
rules of court require compliance therewith as far as is possible.
Deviation from the provisions thereof can only be condoned
where the
circumstances justify it and without causing prejudice or injustice
to the other party. This is particularly so in extraordinary
and
drastic processes such as provisional sentence, amendment of
pleadings and summary judgements. See
Maharaj
v Barclays National Bank Ltd
1976 (1) AD 418
at 423 E-F where the following was stated:
“
While undue
formalism in procedural matters is always to be eschewed, it is
important in summary judgement applications under Rule
32 that, in
substance, the plaintiff should
do
what is required of him by the Rule. The extra-ordinary and drastic
nature of the remedy of summary judgement in its present form
has
often been judicially emphasised.”
See also cases quoted
therein.
[19] In
this case the plaintiff not only omitted a material aspect in his
summons, namely, to call upon the defendant to admit or
deny his
signature on the alleged acknowledgement of debt without which the
said document cannot be a liquid document entitling
the party relying
on it to provisional sentence, but also flouted the provisions
regarding the amendment of the summons in terms
of Rule 28. The
summons was consequently fatally defective.
[20] In
view of the finding above, I do not deem it necessary to deal with
the other issues raised in this judgment.
[21]
The
provisional sentence summons is consequently dismissed with costs.
___________
_____
K.J.
MOLOI, AJ
On
behalf of the Plaintiff
: Adv.
B.J. Coetzee
Instructed
by:
Du Plessis Phukubye Smith
Attorneys
c/o Coetzees Prokureurs
BLOEMFONTEIN
On
behalf of the Defendant
: Adv.
H.J. Cilliers
Instructed
by:
Kramer Weihmann &
Joubert Inc.
BLOEMFONTEIN
/ms