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[2008] ZAWCHC 232
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Espadon Marine (Pty) Ltd v Jik Abalone Farm (Pty) Ltd (15788/2007) [2008] ZAWCHC 232 (6 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISIONS
CASE NO
:
15788/2007
DATE
:
6
AUGUST 2008
In
the matter between:
ESPADON
MARINE (PTY) LIMITED
APPLICANT
and
HIK
ABALONE FARM
(PTY)
LIMITED
DEFENDANT
JUDGMENT
DAVIS.
J
The
defendant in a notice of motion initially applied for the following
relief;
"1.1
Setting aside the plaintiff's notice of bar dated the 18th of January
2008 an appfication for judgement of default dated
8 February 2008;
1.2
Directing the platntiff to comply with the provisions of Rule
18(6) as tt was called upon to do so in terms of
the
defendant's notice in terms of Rule 30(A) dated 22
January 2008;
1.3 Granting
the defendant leave to reapply on these papers duly supplemented for
further relief in the event of the plaintiff
failing to comply with
orders sought in 1.2 above within ten days;
1.4 Directing
the plaintiff to pay the costs hereof.
2.
Alternative to 2.1 condoning the defendant's failure to respond to
the plaintiffs notice of bar dated 18 January 2008.
2.2 Uplifting
the bar pursuant to the plaintiff's notice of bar dated 18 January
2008 and setting aside the notice of bar an application
for judgment
by default delivered pursuant thereto.
2.3 Condoning
the late delivery of the plaintiff's notice in terms of Rule 30(A)
dated 22 January 2008.
2.4
Directing the plaintiff to pay the costs hereof only in the event of
it opposing same."
It
now appears from the submissions made by
Mr
Sievers
on behalf of the defendant that
all
that
defendant now seeks is relief in terms of the alternative prayer,
that is that the bar be uplifted, that it be given leave
to file its
plea and the costs of the application stand over for determination
of trial.
It
appears to be trite law that two requirements are necessary to be
established prior to such an application being successful.
a
reasonable explanation as to the failure to pose the notice of bar;
a
measure of particularity to be shown by the applicant in the case
relating to the merits of its case. Indeed I shalf return
to both
of these requirements presently.
The
chronology in this case is of critical importance. It appears that
in November 2007 platntiff instituted an action against
the
defendant, which action plaintiff is characterised as involving a
multi-milfion rand damages claim. On 19 November 2007 defendant
delivered an entry of appearance to defend. On 16 January 2008,
defendant delivered a Rule 35(14) notice requesting that plaintiff
make available for inspection any written agreement in respect of
the joint venture project referred to in paragraph 5 of its
Particulars of Claim by plaintiff. On 18 January 2008 plaintiff
delivered a notice of bar to defendant's Cape Town service address.
On 21 January 2008 defendant delivered a Rule 30 notice calling upon
plaintiff to comply with Rule 18(6) in that it had failed
in its
Particulars of Claim to allege whether the agreement set out in
paragraph 5 thereof was written or oral.
On
22 January 2008 plaintiff served a Rule 35(14) notice on defendant
calling for certain documentation for "purposes of
possible
replication to defendant's plea". On 23 January 2008 defendant
filed a Rule 30(A) notice calling upon plaintiff
to comply with Rule
18(16) in respect of the agreement relied upon as the Particulars of
Claim. On 4 February 2008 it appears
that the notice of bar came to
the defendant's attention for the first time.
On
6 February 2008 defendant filed a Rule 30 notice alleging that the
delivery of a notice of bar was an irregular step in that
plaintiff
had failed to comply with defendant's notice in terms of Rule 35(14)
of the 15th of January 2008. On 5 February 2008
defendant's
attorney wrote to plaintiff's attorney requesting that they
uplift the notice of bar and if agreement
existed in respect of the
joint venture that they furnish a response to that effect. On 8
February 2008 plaintiff delivered an
application for default
judgment to be heard on 18 February 2008. On 13 February 2008
defendant delivered the present application
for removal of the bar.
On 13 February, being the same date, defendant's attorney wrote to
plaintiff's attorney proposing that
should the plaintiff consent to
the relief sought by the defendant as I have outlined it, no cost
would be sought against the
plaintiff.
On
18 February 2008
Waglav,
J
made an order postponing the matter to today. Accordingly the
application brought by defendant was not heard but postponed for
today's hearing.
It
is also relevant to note the following: After the application had
been lodged by the defendant, together with the supporting
affidavit
deposed to by defendant's attorney, Mr
Inglis
on 12 February 2008, a lengthy answering affidavit was deposed to by
Mr
Coetzee
.
the attorney acting on behalf of the plaintiff, on 15 February 2008.
Three days later, that is the morning, before the matter
came before
Waglav,
J
,
defendant deposed to a replying affidavit again by way of
Mr
Inglis
.
The
matter, having been postponed, a further supplementary affidavit was
filed, this time by Mr Haw who described himself as the
director of
the defendant, such affidavit being deposed to on 9 July 2008.
Attached to this affidavit was a copy of defendant's
plea in
response to plaintiff's Particulars of Claim.
With
this chronology, I turn to an evaluation of the two requirements,
which need to be established for a successful application
of this
kind.
1.
The
explanation for the delay
In
the founding affidavit to this application
Mr
Inglis
states as follows;
"On
the afternoon of 4 February 2008 I opened amongst the defendant's
attorneys incoming mail for that day an envelope addressed
to the
defendant's attorneys by the office of Mr H W Hurter, the Sheriff
for the District of the Cape, the defendant's attorneys
Cape Town
service address in this matter. Contained in the envelope were the
following documents.
13.1
A
notice of bar that had been served by the plaintiff's attorneys upon
the office
of the sheriff on 18 January 2008 ...
13.2
Plaintiff's
notice in terms of Rule 35(14) served upon the office of the sheriff
on the 22
nd
of January 2008 ...
In
addition to this explanation, in the replying affidavit, to which I
have already made reference,
Mr
Inglis
states as follows;
"When
the plaintiff's notice of bar came to my attention on 4 February
2008 it was immediately apparent to me that the time
within which
the defendant was to have delivered its plea back in terms of the
notice of bar (at any event) had expired. This
created for the
plaintiff (and for myself) an immediate practical problem. I could
see little point in embarking upon a witch
hunt to try and identify
and punch the person responsible with the situation that had arisen.
However as I have stated in the
founding papers I did telephone Mr
Hurter and was entirely satisfied with his reaction to the
situation. However, I had not bargained
upon the approach that had
been adopted by the defendant in its answering papers. As the
plaintiffs attorney in its answering
papers points out, I am an
attorney of some 23 years experience. In my experience even in
matters where the parties have litigated
on a less than amicable
basis my experiences have been that I have been treated in the
collegial (a formal) manner. My experiences
have not been of a
series of "ambushes" such as I believe the plaintiff had
endeavoured to lay in the current matter.
(There is some confusion
in this paragraph as to whom
Mr
Inglis
represents. I have quoted the paragraph as it appears in the
affidavit but it must be borne in mind that
Mr
Inglis
is the attorney for the defendant).
When
I approached Mr Hurter to request that he act as my Cape Town
service address I did so because he being an officer of the
Court of
many years standing was accustomed to dealing with court process and
documents. I also have a personal and business
reiationship with
him, having represented him on a number of occasions in legal
matters. The arrangement, which was agreed (and
implemented) was
that in the case of shortage notices (such as formal court notices,
notices of contention and further the like)
these would be
transmitted to my offices by the Sheriff's office by way of fax.
This has been successfully implemented since
the inception of the
arrangement between myself and Mr Hurter, the notable (and
regrettable) exceptions being those relating
to the plaintiff's
notice of bar and notice in terms of Rule 35{14). In the case of
longer documents (such as applications etc)
the arrangement was that
my office would be telephoned and arrangements would be made for the
collection of the article. I have
discussed the current allegation
with both Mr Hurter and Mrs Theresa Withers, to whom the plaintiff
incorrectly referred to as
Willois. Pn this regard I refer to the
affidavit by Mr Hurter."
Mr
Hurter confirms the contents of
Mr
Inglis
'
affidavit in the confirmatory affidavit.
Mr
Spamer
,
who appeared on behalf of the plaintiff, did not appear to take much
issue with this aspect of the case and rightly so. There
had been an
administrative mistake which it would be difficult to attribute to
the defendant. The explanation itself is of a
reasonable and
plausible kind which would satisfy the requirement insofar as the
application is concerned.
Bona
Fide
defence
I
turn therefore to deal with the second of the two requirements, that
is that there is some indication of a
bona
fide
defence
to the plaintiff's claim, which
prima
facie
has
some prospects of success (see rule 27(1)).
Mr
Spamer
focused
most of his argument, which he eloquently presented to me this
morning on this issue. In essence, the argument runs along
the
folEowing lines: The founding affidavit provides little indication
of the contents a
bona
fide
defence
to plaintiffs claim. The replying affidavit is at best skeletal in
its description of defendant's case; to the extent
that there is
evidence, which would satisfy Rule 27(1), it is contained in the
defendant's supplementary affidavit of Mr Haw
of 9 July 2008, which
is hopelessly late and which provides, in
Mr
Spamer
's
view no indication as to why it has come at the 'proverbial 11
th
hour',
nor is there any appropriate procedure followed in order for this
affidavit to be duly admitted to Court.
On
this basis
Mr
Spamer
submitted that, if the Court is not prepared to take account of the
contents of the supplementary affidavit, then insufficient
evidence
has been put up by the defendant to meet the requirement, as I have
outlined it in terms of Rule 27(1).
In
his
Mr
Spamer
correctly sets out the law in the following fashion:
It
is required of a defendant who wishes to lift a bar to set out
sufficient information to enable the Court to come to the conclusion
that the defence is
bona
fide
and
not put up merely for the purpose of delaying such satisfaction on
the plaintiff's claim. The defendant does not, as a rule
of law,
necessarily have to set out the nature of the defence, nor does he
necessarily have to make out a
prima
facie
defence
in his affidavit. There may however be occasions when the defendant
will be obliged to do one or other, or even both,
in order to
satisfy the Court that it is
bona
fide
in
its intention to defend, whether he be obliged or not will depend
upon
inter
alia
the
amount of information the Court can abstract from the pleadings
which may be before it. See
Dalhouzie
v Bruwer
1970(4)
SA 566 (C) at 571 - 572. See also
Colvn
v Tioer Food Industries Ltd t/a Mead Meadow Feed Mills (Cape)
2003(6) SA 1 (SCA) at 9.
The
question, crisply is the following: Is there enough information for
the Court to satisfy itself that there is a
bona
fide
intention
to defend.
Mr
Sievers
contended that in matters of this kind which are brought on motion,
a court must follow the usual rules with regard to motion
proceedings and examine the contents of the founding affidavit and
answering affidavit. In the founding affidavit
Mr
Ingiis
says that;
"The
defendant's legal representative has experienced some
difficulty with the question of plea arising more particularly
from
the allegations contained at paragraph 5 thereof."
He
then continues;
"The
plaintiff however in his particulars failed to state, as it was
obliged to have done in terms of the provisions of Rule
18(6)
whether the contract (for within the context of the plaintiff's
Particulars of Claim that is what the joint venture project
is) was
"written or oral and when, where and by whom it was concluded".
In
short
Mr
Sievers
submitted that, in the founding papers the defendant had stated that
it was having considerable difficulty in puzzling out the
very
nature of the plea in order to develop an adequate defence thereto.
In
the replying affidavit of 18 February with the advantage of the
answering papers which have been deposed to on 15 February
Mr
Inglis
is able to take the matter slightly further.
"With
the plaintiff's statement now before the above Honourable Court that
the very thing upon which the plaintiff relies
for its relief it
seeks in its claim against the defendant is not based upon agreement
between the parties, the defendant is
even more at a loss to know
how it is to plead to the plaintiff's claim.
To
the extent that the defendant is able to guess at the true nature of
the plaintiff's alleged claims, defendant denies a joint
venture
project alleged by the plaintiff, the duty of care alleged pursuant
thereto, indeed any contractual privity between plaintiff
and
defendant of the nature alleged by the plaintiff in its Particulars
of Claim.
Such
contractual bonds as may attach to the parties for the purpose of
the subject matter alleged by plaintiff exist between the
individual
parties and Hatcheries. The defendant strongly suspects that the
reason the plaintiff has formulated its claim with
itself as
plaintiff is to avoid the exclusion of liability by the defendant
Hatcheries as set out in the
Agreement
of Lease between defendant and Hatcheries, a copy of which is
annexed and from which it is evident, the term is Hatcheries
and not
as the plaintiff has suggested."
In
this particular connection,
Mr
Sievers
pointed out that it was only upon receipt of the answering papers on
15 February that various agreements which were alleged to
have been
concluded were referred to (see paragraph 11.5 of the answering
affidavit) and in which the plaintiff undertook to
be made available
at the hearing if the application should be required or necessary.
To
the extent that the plaintiff had a justifiable complaint with
regard to the explication of the defence as contained in the
supplementary affidavit
Mr
Sievers
submitted that the initial replying affidavit had been deposed to in
great haste, having been required to be placed before the
Court for
a possible hearing on 18 February 2008. The supplementary affidavit
of 9 July 2008, which I might add, is almost a
month prior to this
hearing, was completed in a 'more relaxed time frame
3
,
given that the parties knew that the matter had been postponed to
this day.
In
that affidavit
Mr
Haw
says;
"The
need for the supplementary affidavit has arisen from the view that
defendant is in the position to sufficiently plead
to the
plaintiff's Particulars of Claim in the light of the averments made
in the plain tiffs answering affidavit."
It
is significant that the plea, attached to this affidavit, to a very
large extent, contains a series of denials; a denial that
there is a
contract between the parties, a denial that the law of delect is
applicable to such a case.
Mr
Sievers
submitted that once the case turns on the question of a delictual
course of action as opposed to a contractuai course of action,
then
the very nature of plaintiffs case becomes markedly more complex in
the light of
dicta
of
the Supreme Court of Appeal in
Trustees
Two Oceans Aquarium Trust v Kantev and Templer (Ptv) Ltd
2006{3) SA 138 (SCA) where the Court adopted a cautious approach
about extending delictual liability to new situations. In
particular, it referred to the earlier decision in
Lillicrap
Wassenaar and Partners v Pilkinoton Brothers (Ptv) Ltd
1985(1) SA 475 (A), where it was held that concurrent delictual
liability for pure economic loss will not be allowed where the
parties relationship is governed by contract.
Mr
Sievers
submitted that the Court in the
Two
Oceans Aquarium
case extended its reasoning to a situation where the parties had not
yet been in a contractual relationship at the time of the
alleged
delict but where it had been anticipated that they would in the
future conclude a contract and where the claimant had
been in a
position to avoid the risk of harm by contractual means, but failed
to do so. The plaintiff, as an alleged joint venture
partner of the
defendant, was in a position to avoid the risk of harm by
contractual means.
Mr
Sievers's
point made, was that, if the factual edifice as set out in the
founding papers is examined together with the expansion, to some
extent in the replying papers, and developed in the supplementary
affidavit, it is clear that a
bona
fide
course
of defence has been raised. This was thus not a case where the
defendant had adopted a stratagem simply for the purposes
of delay.
Turning
to the applicable law in point, as I noted earlier the defendant
does not have to set out the comprehensive details of
a defence, nor
necessarily to make out a
prima
facie
defence
in its affidavit. What it has to do, it appears to me, is to comply
with the rule, which is to show that it has a
bona
fide
defence to plaintiff's claim, which
prima
facie
has
some prospect of success. How does the Court deal with this
requirement?; it examines what is put up to it on affidavit, and
with its own knowledge of the law, or alternativefy the knowledge of
the law which is advanced in this case by defendant, it
makes a
determination, a determination which has to weight other than to
examine whether the rather low threshold of Rule 27(1}
has been met.
It is important that the threshold not be placed at too high a
level. Consider the alternative. The alternative
is that the notice
of bar continues, the default judgment follows, and that rights
enshrined in Section 22 of the Constitution,
(Republic of South
Africa Constitution Act 108 of 1996), being
t
the right of access to a court, is to some extent limited, perhaps
unjustifiably so. I make no comment on this argument, save
to say
that in an interpretation of any such rule it is imperative to take
account of the objects and purport of the constitution
(see Section
39(2} thereof).
In
my view, the founding and replying affidavits provide some basis of
explanation. Furthermore, it was, in my view, not unreasonable
for a
further affidavit to be put up, particularly in that
Waglav,
J
had postponed the case to today. There was a month between the time
that that affidavit was filed and the hearing of this case,
more
than adequate opportunity for any further evidence to be placed
before this Court, had the plaintiff so wished to do
In
my view the defendant has met the requirements as set out in Rule
27(1) of the Act. Accordingly the notice of bar of 18 January
2008
is set aside. The plaintiff is given leave to file its plea. The
costs of this application will stand over for determination
at the
trial.
DAVIS,
J