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[2008] ZAFSHC 37
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Shell SA Marketing (Edms) Bpk v JG Wasserman h/a Wasserman Transport (681/2004) [2008] ZAFSHC 37; 2009 (5) SA 212 (O) (5 June 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. : 681/2004
In
the matter between:-
SHELL
SA MARKETING (EDMS) BPK
Applicant
and
JG
WASSERMAN h/a WASSERMAN TRANSPORT
Defendant
______________________________________________________________
HEARD
ON:
31
JANUARY 2008
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
5 JUNE
2008
[1]
These are interlocutory proceedings. The matter was brought by way of
an application in terms of rule 30(1). The application
was the
plaintiff’s
response
to the defendant’s proposed amendment of its plea and the
introduction of a counterclaim. The relief sought is to
have the
proposed
amendment
declared an irregular step and the notice thereof set aside. The
defendant opposes the plaintiff’s application.
[2]
Briefly stated the factual background is as follows: The plaintiff
sued the defendant in this court under case number 681/2004.
The
summons
was
issued and served on the defendant. The defendant opposed the main
claim. The defendant’s plea was delivered on 22 June
2004. No
counterclaim
was simultaneously filed with the defendant’s plea (rule
24(1)).
Litis contestatio
was reached in due course.
[3]
On 14 December 2007 the defendant delivered notice of amendment (rule
28). The proposed amendment concerned the defendant’s
plea.
However,
the amendment was drafted in such a manner that the defendant’s
plea would, after its amendment, effectively accommodate
the
introduction
of a counterclaim.
[4]
On 18 December 2007 the plaintiff delivered notice of its objection
(rule 30(2)(b)). The defendant was afforded an opportunity
of
removing the
cause
of the plaintiff’s complaint. The attitude of the defendant
apparently was that the plaintiff’s complaint was
groundless.
The defendant did not
do
anything to remove the cause of the plaintiff’s complaint. The
prescribed ten day period elapsed. The cause of the complaint
remained. The
plaintiff
then initiated these proceedings on 22 January 2008.
[5]
In the notice of amendment of its plea dated 14 December 2007 the
defendant alleged that from 1 December 1999 the plaintiff
supplied
the
defendant
with certain goods and that every month the plaintiff calculated the
amount owing by the defendant to the plaintiff in
respect of diesel,
lubricants
and tollgate charges. On the 15
th
of each month the plaintiff then recovered such amount through
a direct debit order against the
defendant’s
bank account. In terms of the agreement the plaintiff was obliged to
furnish the defendant with written monthly
statements or reports
of
the goods supplied to the defendant by the plaintiff during the
previous month.
[6]
As a result of the plaintiff’s failure to provide such written
monthly statements, the proposed amendment goes on, the
defendant was
not in a
position
to control or to verify the monthly amount the plaintiff had debited
against the defendant’s bank account. During
November 2005 the
defendant
received, for the first time, written monthly statements of account
from the plaintiff although they were incomplete.
The defendant then
embarked
upon the exercise of reconciling the amounts the plaintiff recovered
directly from its bank account as against the quantities
of the
goods
supplied to the defendant tanker or truck by truck. After proper
reconciliation of the plaintiff’s documentation the
defendant
discovered that
during
the period of June 2003 to July 2003 the plaintiff had recovered from
its bank account the sum of R364 601,51 more than the
plaintiff was
entitled
to. This then is the sum of money the defendant wants to recover from
the plaintiff by way of a counterclaim.
[7]
Together with the notice of amendment of the plea, the defendant also
delivered the proposed counterclaim as referred to in
paragraph 1 and
2
of the notice of amendment. The counterclaim is an eight page
pleading. I shall try as best as I can to condense it. The defendant
avers that the
parties
entered into a written agreement at Harrismith on 1 September 1999
whereby the plaintiff supplied the defendant with certain
goods and
the
defendant paid the plaintiff by way of a debit order. The plaintiff
failed to provide the defendant with written monthly reports
of how
the amounts
debited
against
the defendant’s bank account were made up and calculated.
[8]
As a result of the plaintiff’s failure to carry out this
contractual obligation, the defendant was not in a position to
verify
the correctness of the
amount
so debited against its bank account. In November 2005 the defendant
discovered that the plaintiff had incorrectly debited
its bank
account
with
an excessive sum off R364 601,51 for the period June 2003 to July
2003. According to the reconciliation done by the defendant,
the
amount
of
R364 601,51 was, in fact, not owing by the defendant to the
plaintiff. On that premise the plaintiff was indebted to the
defendant
in the sum of
R364
601,51 plus interest thereon. This in brief was the gist of the
defendant’s counterclaim against the plaintiff.
[9]
The crisp question in the case is whether it is permissible for a
defendant to introduce a counterclaim long after a plea has
been
delivered by
amending
a plea in such a manner that an amended plea, unlike the original
plea, now accommodates a counterclaim.
[10]
Mr. Loubser argued, on behalf of the plaintiff, that it was
impermissible and irregular for the defendant to attempt to introduce
the counterclaim
in
an action where the defendant’s plea had long been delivered,
by simply amending the defendant’s plea in such a manner
that
the amended
plea
now accommodates a counterclaim.
[11]
Mr. Snyman argued, on behalf of the defendant, that it was regular
and therefore permissible for the defendant to introduce
a
counterclaim by
way
of an amendment. The foundation of his submission was that rule 24(1)
did not (and does not) prohibit such a procedure. [12]
Rule 24(1)
provides:
“A defendant who counterclaims shall, together
with his plea, deliver a claim in reconvention setting out the
material facts
thereof in accordance with rules 18 and 20
unless
the plaintiff agrees, or if he refuses, the court allows it to be
delivered at a later stage. The claim in reconvention shall
be set
out either in a separate document or in a
portion
of the document containing the plea, but headed ‘Claim in
Reconvention’. It shall be unnecessary to repeat therein
the
names or descriptions of the parties to the
proceedings
in convention.”
[13]
Rule 28(1) provides:
“Any party desiring to amend
a pleading or document other than a sworn statement, filed in
connection with any proceedings,
shall notify all other
parties
of his intention to amend and shall furnish particulars of the
amendment.”
[14]
Rule 30(1) 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.”
[15]
In
SEARLE v SEARLE
1967
(2) SA 19
(O) at 21 A – C the court decided per Erasmus J that
a counterclaim could not be introduced after a
defendant’s
plea had been filed.
[16]
In
VAN JAARSVELDT v NEL
1974
(1) SA 103
(T) at 107 F–108 C the court held per Viljoen J that
a counterclaim could still be introduced
after
a defendant’s plea had already been filed.
[17]
It appears that the legislative organ preferred the generous
construction of the rule as was adopted in the latter decision
of
VAN
JAARSVELDT
-case,
supra
, to the
strict construction as was adopted in the earlier decision of
SEARLE
’s-case,
supra
. It was,
presumably, in
response
to the
SEARLE
’s
decision that the legislature amended the rule in 1987 to provide for
the two exceptions. Where a counterclaim has
not
been simultaneously delivered with a plea, it may now be subsequently
delivered with the consent of the plaintiff or with the
leave of the
court,
if
the plaintiff refuses.
[18]
The delivery of a counterclaim contrary to the rule constitutes an
irregular step liable to be declared as procedurally impermissible
and to be
set
aside - Harms:
Civil
Procedure in the Supreme Court
on p. B172 at par. B24.3.
[19]
It is generally permissible and regular for a defendant to amend its
existing pleadings, including its plea and counterclaim,
in order to
have the
real
dispute clarified where the wording of a pleading, for one reason or
another, might be incomplete, ambiguous or technically
incorrect. It
seems
crystally clear to me that rule 28(1) was designed to provide for the
amending of a pleading that already exists and already
filed in
connection
with any pending civil proceedings. It was not designed to serve as
an avenue for the creation and introduction of new
pleadings.
[20]
The procedure for the lodging of a counterclaim is regulated by rule
24.1. In terms of the rule there are three possible ways
of
delivering a
counterclaim.
In the first place, a counterclaim must be simultaneously delivered
with a plea. This is the ideal and preferred method.
The
defendant
has an automatic right to do so. In the second place, a defendant
may, with the consent of the plaintiff, deliver a counterclaim
after
a
plea
has been delivered. In the third place, a defendant may, where the
consent is refused, deliver a counterclaim with the leave
of the
court, first
sought
and obtained, after a plea has been delivered. In the last two
scenarios the defendant has no automatic right – rule
24(1).
[21]
In the instant case the defendant has not followed any of the three
regulatory methods. The defendant’s counterclaim
was not filed
together
with
its plea at the same time, namely 22 June 2004. This is the first
problem. The plaintiff’s consent to accept the late
delivery of
the defendant’s
counterclaim
has not first been sought and obtained. This is the second problem.
There is no formal and substantive application
before the court
to
authorise the late delivery of the defendant’s counterclaim.
This is the third problem. I am in the dark as to why the
defendant
ignored the
relevant
rule.
[22]
I have earlier observed that the defendant had an automatic
procedural right to deliver its counterclaim together with its
plea.
That right availed
to
the defendant until the moment its plea was filed. The moment the
plea was delivered the defendant automatic procedural right
ceased to
exist.
Since
the defendant did not simultaneously exercise such right, it was
extinguished through effluxion of time.
[23]
After the extinction of the defendant’s automatic procedural
right, he was not remediless. By law the defendant acquired
a
relative procedural
right
to deliver its belated counterclaim provided the plaintiff agreed,
failing which provided the court sanctioned the late delivery
thereof
on
application
by the defaulting defendant. Upon the demise of the defendant’s
automatic right to deliver its counterclaim simultaneously
with its
plea,
the
plaintiff acquired an absolute procedural right to be first consulted
and its consent sought before the defendant could approach
the court
to
allow
the late delivery of its counterclaim.
[24]
The procedure adopted by the defendant is a radical departure from
the recognised procedure outlined in rule 24(1). Moreover,
it
bypasses
the
plaintiff and thereby negates the plaintiff’s absolute
procedural right and creates another new method whereby a belated
counterclaim may be
introduced.
There are only two specified subsequent methods whereby a belated
counterclaim may be introduced. However, amending
a plea so
that
such an amendment can be used as a vehicle for the introduction of a
counterclaim, is not one of such specified methods.
[25]
To allow the subsequent filing of a belated counterclaim via such an
obscure route would not only infringe the plaintiff’s
right and
undermine
the
authority of the court, but would defeat the purpose for which rule
24(1) was enacted. To allow the creation and filing of new
pleadings
years
after
the pleadings have been closed would render the principle of
litis
contestatio
virtually meaningless.
[26]
Although a defendant may amend its pleadings, including its plea and,
of course, its counterclaim where one has been duly and
previously
delivered,
in order to perfect the elegance thereof, that is not what we really
have here. It is not the defendant’s case
that the plea does
not
properly
reflect the real dispute between the parties on account of certain
incomplete or ambiguous or incorrect wording. The amendment
was
certainly
not necessitated by any such technical defects and the defendant’s
attendant intention to remove them.
[27
In the instant case the amendment of the plea was informed by the
defendant’s plain scheme to launch its belated counterclaim
by
using its
plea
as a springboard. Mr. Snyman argued that it was regular to
incorporate the defendant’s counterclaim in the amendment
of
the plea seeing
that
the counterclaim was so inextricably linked to the defendant’s
plea that it was not possible for the defendant to apply
in terms of
rule 24(1) in
order
to have the late delivery of its counterclaim condoned.
[28]
The contention is flawed. Nothing in the rule can be construed to
suggest that the rule was exclusively designed to cater for
counterclaims
that
were based on separate and autonomous causes of action. In my view,
it is impermissible to circumvent the rule on the grounds
that the
defendant’s
counterclaim originates from the
causa
that is substantively inseparable from the
causa
of the plaintiff’s main claim.
[29]
By means of the amendment contemplated in its notice dated 14
December 2007, the defendant seeks to deliver its claim in
reconvention
at
a
stage that is some 35 months later than the date of 22 June 2004 on
which the defendant delivered its plea. The defendant has
neither
sought
the
agreement of the plaintiff nor the leave of this court to deliver its
counterclaim subsequent to the date on which it delivered
its plea,
as the rule
requires.
[30]
I am persuaded by Mr. Loubser’s submission that the rules do
not provide for the introduction of a counterclaim by means
of an
amendment.
That
being the case, the defendant’s notice of its intention to
amend its plea so as to introduce its counterclaim without
using the
procedure as
laid
down in rule 24(1), in my view, constitutes an irregular procedural
step which justifies the plaintiff’s objection. Therefore,
I am
inclined to set it
aside.
[31]
Elsewhere in this judgment, I indicated that there were two
conflicting decisions about the subsequent and separate filing
of a
counterclaim.
The
lawmaker aware of the
obiter
dicta
in the
VAN
JAARSVELDT’S
-case amended the rigid rule and
liberalised it by adding two more options.
The
amendment option, as was intimated in that case and on which the
defendant now so heavily relies, was left out as no option.
The only
recognised
options for a defendant with a belated claim in reconvention are:
seek the permission of the plaintiff first and, if
needs be, the
leave of
the
court. That is the regular procedure. Both of the counsels were
agreed: rule 24(1) was not followed. It is sometimes said what
the
law does
not
prohibit is permissible. However, in this case what the law expressly
mentions seems implicitly to exclude what it does not,
the
expressio
unius
rule of interpretation applies.
[32]
Counsel for the defendant conceded that the plaintiff’s
application complied with all the procedural requirements of
rule
30(2) and that I was
only
called upon to determine the regularity or otherwise of the
defendant’s contemplated amendment of its plea along with
the
envisaged
introduction
of its counterclaim via such an amendment. Since I have already found
that the real underlying purpose of the proposed
amendment
was
to introduce the belated counterclaim rather than to perfect its
existing plea, it follows that the defendant is precluded to
effect
the
contemplated
amendment of its plea, the contemplated introduction of the
counterclaim falls away.
[33]
The application of the plaintiff in terms of rule 30(1) has been
successful. The plaintiff is entitled to the costs. The plaintiff’s
costs must be
borne
and paid by the defendant.
[34]
Accordingly I make the following order:
34.1
The defendant’s notice of its intention to amend its plea which
notice was dated 14 December 2007, is declared irregular
and set
aside.
34.2
The defendant is directed to pay the costs hereof.
______________
M.H.
RAMPAI, J
On
behalf of the plaintiff/applicant : Adv. P.J. Loubser
Instructed
by:
Webbers
BLOEMFONTEIN
On
behalf of the respondent: Adv. C. Snyman
Instructed
by:
E
G Cooper Attorneys
BLOEMFONTEIN