IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
Case No.: 04/30267
In the matter between:
PEET, JASON REUBEN Applicant
and
ROSS, STEVEN M (CEO) - EDCON Respondent
(EDGARS CONSOLIDATED STORES LIMITED)
JUDGMENT
[1] The applicant seeks a money judgment for unliquidated damages against the
respondent in this application. In prayer (a) of his notice of motion , the applicant
claims “payment that is just and equitable (R7, 6 million), justice must the refore
be seen t o be done.” The respondent is the managing director and chief
executive officer of Edgars Consolidated Stores Limited (“Edcon”).
[2] The app licant’s claim arises out of his arrest and detention for the alleged
theft of a compact disc , entitled “Trouble in Shangri-La” by Stevie Niks , from a
2
CNA store in the Lakeside Mall, Benoni, on 19 August 2002. The applicant was
criminally charged for the alleged theft . H e stood trial in the Regional Court ,
Benoni, on 25 September 2002 and on 18 Octobe r 2002 . The applicant was
acquitted on 18 October 2002. The applican t’s version is that the compact disc
in issue was on e of two compact discs which belonged to him and which he had
in his possession when he entered the CNA store on the day in question . The
compact disc was confi scated from the applicant’s person by a member of the
staff at the CNA store on 19 August 2002 . The value of the compact disc was
approximately the sum of R170.00.
[3] On 12 August 2003 , the applicant addressed a letter to the responde nt in his
capacity as the CEO of Edcon. In this letter the applicant demanded the return of
the confiscated compact disc . He further advised the respondent that he would
institute legal proceedings against the respondent i n his personal capacity in the
Small Claims Court should his demand not be met.
[4] Edcon’s Group Legal Adviser and Company Secretary, Elizabeth Bagley, met
with the applicant on 21 January 2004 in an endeavour to address the applicant’s
unhappiness. The meeting did not yield the des ired result and, at the end of the
meeting, the applicant handed to Ms. Bagley a second letter of demand wherein
he notified the respondent that , should his previous demand not be met, the
applicant would present his case to the Small Claims Court and summ ons the
respondent personally to appear as the responsible party.
3
[5] By letter dated 22 January 2004, signed by the respondent, Edcon denied
any liability to the applicant and informed the applicant that Edcon purchased the
business carried on by Consolidated News Agencies (Pty) Ltd (in liquidation) and
Central News Agency (Pty) Ltd (in liquidation) under the name and style of “CNA”
(“the CNA companies”) with effect from 21 October 2002.
[6] The applicant then sued the respondent personally in the Small Claims Court,
Benoni on 25 February 2005, for payment of the sum of R3000.00, being “money
owing for replacement of CD.” Edcon is a large public company carrying on
business as a group of 641 retail stores operating under various names
throughout the Republic of South Africa. The respondent states that he, in his
capacity as the CEO of Edcon, has numerous duties and responsibilities and,
whilst Edcon and the respondent denied any liability to the applicant for the
return of the compact disc or for pa yment of the sum of R3000.00, he had
important commitments toward Edcon o n the date of the trial in the Small Claims
Court. The matter in the small claims court was accordingly settled and payment
in the sum of R3 000.00 was made to the applicant. Such payment was made to
avoid litigation with the applicant and in the interest of maintaining good customer
relations.
[7] The applicant thereafter launched the present motion proceedings against the
respondent on 1 December 2004. The applicant claims R7,6 million as damages
4
from the respondent and he lists a number of alleged violations of his rights in
paragraphs “(b)” to “(z)” of the notice of motion, all arising out of the same
incident, namely his arrest, detention and criminal prosecution pursuant to the
accusation of theft of the compact disc made against him.
[8] Mr. P.N. Levenberg, who appeared for the respondent, submitted that no
basis for liability has been established against the respondent. This was
disputed by the applicant, who appeared in person.
[9] The applicant states in his founding affidavit that Edcon is liable for the
wrongs committed against him , because it is the “umbrella body ” of the CNA
companies and the respondent is vicariously liable on the basis of the “King 2
Report on C orporate G overnance” as he is the chief spokesperson for the
companies under the Edcon umbrella.
[10] The respondent’s version is that Edcon and the CNA companies are
separate legal entities and they had no connection at the time when the delict
against t he respondent allegedly occurred. Only the business of the CNA
companies, and not the companies themselves, was thereafter acquired by
Edcon and it never became liable for the delict allegedly committed by the CNA
companies.
[11] The necessary factual foundation for a finding of personal liability on the part
5
of the respondent, is, however, not furnished by the applicant, such as a wrongful
act performed or authorised, directed or procured by the respondent (see:
Blackman Jooste Everingham: Commentary on the Companies Act, Vol 2 at p 8-
230 et seq. ; Joubert: The Law of South Africa (1 st Reissue), Vol 4 Part 2 at p
293).
[12] Mr. Levenberg submitted that motion proceedings are inappropriate in order
to obtain a money judgment for unliquidated damages . I agree. It was
specifically held in Williams v Tunstall 1949 (3) SA 835 (TPD) , at p 839, and in
Room Hire Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155
(T), at pp 1160 – 1161, that motion proceedings are not permissible in cases of
illiquid claims for damages. Insufficient facts have in any event been furnished
by the applicant for a proper judicial assessment of his damages, and the amount
thereof, even if unliquidated damages could be pursued in motion proceedings.
[13] Mr. Levenberg submitted that the applicant’s claim against the respondent is
vexatious, he previously unjustifiably sued the respondent in his personal
capacity in the small claims court for payment of the sum of R3000.00, being the
alleged value of a CD, which was w orth less than R200.00, there is no legal
basis for his present claim , and that an end should be put to the applicant’s
harassment of the respondent through an exemplary costs order. There is
justification for such an order of costs.
6
[14] In the result, the application is dismissed with costs on the scale as between
attorney and own client.
________________________
P.A. MEYER
Acting Judge
3 November 2005