Zandry v Randle Yachts cc (AC53/02) [2003] ZAWCHC 37; 2006 (5) SA 301 (C) (25 August 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2003
>>
[2003] ZAWCHC 37
|

|

Zandry v Randle Yachts cc (AC53/02) [2003] ZAWCHC 37; 2006 (5) SA 301 (C) (25 August 2003)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: AC53/02
In
the matter between:
JEAN DANO
ZANDRY
Plaintiff
and
RANDLE YACHTS
CC
Defendant
JUDGMENT: 25 AUGUST
2003
VAN REENEN, J:
1] The
Plaintiff (Zandry) sued the defendant (Randle Yachts) in admiralty
for the payment of damages in an amount of R140 314,67
as well as
interest thereon.
2] Zandy’s
claim is based on an alleged breach by Randall Yachts of the terms of
a number of written and oral contracts entered
into during the period
10 March 2000 to 29 March 2001 in terms whereof Randle Yachts
undertook to build a “Vickers 45” pilot
house yacht called the
“Modia” for Zandry.
3] Zandry
in his particulars of claim alleges that Randle Yachts failed to
perform its contractual obligations in the following respects
-
a) it
failed to render the “Modia” watertight including failing to
install the keel properly;
b) it
failed to supply and install the inside bilge pump;
c) it
failed to complete the drain fittings;
d) it
failed to properly install the windows; and
e) it
failed to comply with the instructions of the marine surveyor one
Cox.
4] Randle
Yachts gave notice of its intention of opposing Zandry’s claim;
filed a plea amounting to a denial of the material averments
on which
the claim is based; and filed a counterclaim for the payment of an
amount of R22 979,72 (inclusive of value-added tax),
payable by 30
March 2001, in respect of material purchased by Randle Yachts to be
used in the building of the “Modia” and reflected
in invoices
that had to be provided.
5] Zandry
filed a plea to the counterclaim in which he pleaded that payment was
dependent upon invoices being provided and the satisfactory
completion of the work in which the materials had to be used and
averred that he is excused from making payment because no invoices
had been provided to him and that the work has not been completed
satisfactorily.
6] A
trial date has not been allocated as yet.
7] It
is not in dispute that the “Modia” is presently at anchor in
Analalava, Madagascar and that Zandry is presently either in
Antanarivo, Madagascar or in France.
8] On
25 April 2003, Randle Yachts’ attorneys delivered a notice in terms
of Rule 36(6) to Zandry’s attorneys in the following
terms: -
“
Kindly take notice that Defendant
requires the Plaintiff within 10 (ten) days of receipt of this
notice, to make available the Yacht
“Modia”, the subject of the
above action, for an inspection or examination at a mutually
convenient time and place to be arranged”
They
also requested a copy of the plans of the “Modia”. That part of
the notice has been complied with.
9] Zandry’s
attorneys in a facsimile letter dated 22 May 2003, advised the
attorneys of Randle Yachts that the “Modia” was
available for
examination and inspection in Madagascar.
10] Randle
Yachts’ attorneys found the attitude adopted by Zandry and his
attorneys, namely that rule 36(6) did not oblige Zandry
to submit the
“Modia” for inspection in South Africa unacceptable. They on 30
May 2003, delivered a notice in terms of rule
30A in which it was
recorded that Zandry had failed to comply with the rule 36(6) notice
and notified him that should he fail to
comply therewith within 10
(ten) days, an application would be made to this court for an order
that it be complied with, alternatively,
that his claim be struck
out, alternatively, for such an order as this court may deem fit.
11] In
response to the rule 30A notice, Zandry’s attorneys in a facsimile
letter dated 3 June 2003, advised Randle Yachts’ attorneys,
inter
alia, as follows –
“
It
has previously been conveyed to your offices that the yacht “Modia”
has been available for inspection by the defendant at
her anchorage
in Analalava, Madagascar.
As
such, the Plaintiff has not failed and/or refused and/or neglected to
comply with the Rule 36(6) Notice and as such is not in default”
12] Randle
Yachts’ attorneys, on 28 July 2003, brought an application in terms
of rule 30A(2) for an order in the following terms:
“
i. Defenant’s Rule 36(6) and Rule
30A notices served and filed during 25 April 2003 and 30 May 2003
respectively be complied with
within 4 (four) weeks of the date of
this order failing which;
ii. Application
may be made on the same papers duly supplemented without further
notice for plaintiff’s claim to be struck out.”
13] Zandry
opposes that application and filed an answering affidavit the gist
whereof is that he has not failed and/or refused and/or
neglected to
comply with the rule 36(6) notice as he has at all times been
prepared to allow Randle Yachts examination and inspection
of the
“Modia” but that it had to take place in Madagascar. Zandry also
contended that because of Randle Yachts’ breach of
contract the
“Modia” is not sufficiently sea-worthy to be sailed to South
Africa and provided details of the expenses that would
have to be
incurred if it had to be sailed to South Africa.
14] The
issue for decision is whether in terms of Rule 36(6) a party when
he/she/it is called upon to make available for inspection
or
examination movable property, the state or condition whereof may be
relevant with regard to the decision of any matter at issue
in any
action, is under an obligation to make it available for inspection or
examination at a place required by the party demanding
such
inspection or examination or whether the obligation is merely to make
it available at the place where such property is.
15] I
have, in the limited time at my disposal, not been able to find
decided cases in our own or other jurisdictions that could serve
as
an aid to the resolution of that issue.
16] Although
Randle Yachts’ attorneys could have applied in terms of Section
5(5)(i) of the Admiralty Jurisdiction Regulation Act,
No 105 of 1983
for the examination, testing or inspection of the “Modia” it
chose to invoke the provisions of rule 36(6) of
the Uniform Rules of
Court which, in terms of Admiralty Rule 24, finds application.
17] Rule
36(6) provides as follows:
“
If it appears that the state or
condition of any property of any nature whatsoever whether movable or
immovable, may be relevant with
regard to the decision of any matter
at issue in any action, any party may at any stage give notice
requiring the party relying upon
the existence of such state or
condition of such property or having such property in his possession
or under his control to make
it available for inspection or
examination in terms of this sub-rule, and may in such notice require
that such property or a fair
sample thereof remain available for
inspection or examination for a period of not more than ten days from
the date of receipt of
the notice.”
18] The
everyday dictionary meaning of the words “make available” in the
context, is to cause the property in question to be
placed at the
disposal of or to be accessible to the litigant requiring its
inspection or examination (See:
The
Shorter Oxford English Dictionary; The Random House Dictionary of
the English Language;
and
Webster’s Third International Dictionary
sv “make” and “available”). If rule 36(6) is so
interpreted, as in my view it should, the contentions of Zandry’s
attorneys
have to be upheld and those of Randle Yachs’ attorneys
rejected. On that construction Zandry, by having offered to make the
“Modia”
available for inspection in Madagascar has not refused
or failed to do what he is in terms of rule 36(6) obliged to do.
H.J.
Erasmus: Superior Court Practice,
31 – 268 under the heading “to make it available for inspection
or examination” states that “[t]he party merely has to
keep the
article available for inspection”.
19] In
my view the drafters of rule 36(6) could not have intended that the
person who is required to make an article available for
inspection
has to do more than to place it at the disposal of or make it
accessible. I say so for the following reasons. First,
in terms of
the sub-rule the party that has to make an article available for
inspection is the party who relies upon the existence
of a state or
condition therein that may be relevant with regard to the decision of
any matter in issue
or
the party having such property in his/her/its possession or under
his/her/its control. The framers of the rule could not have been
oblivious thereof that possession and control may exist apart of
ownership and that, depending on the legal basis upon which it is
exercised, such possessor’s or controller’s powers may exclude
any entitlement to deal therewith other than the exercising of
possession and control. Second, our courts appear to recognize
that the inspection or examination envisaged by rule 36(6) should
take place with as little inconvenience and disruption as reasonably
possible (Cf:
Mgudlwa
v AA Mutual
1967(4) SA 721 (E) at 723 C, 723 F). To require a party to do more
than merely placing the article at the disposal of the party
requiring inspection or examination in my view could in circumstances
such as the present, be irreconcilable with that approach.
Thirdly,
some indication that the framers of the rule envisaged that the party
requiring inspection or examination is to take the
steps required to
achieve it, is to be found in rule 36(6)(c) which provides that such
a party should bear the expense thereof and
that it shall form part
of such party’s costs.
20] Rule
36(6), prior to the amendment of the English text on 15 December
1967, provided that the party requiring inspection or examination
could require the party to which the notice is directed:
“…
to
submit
the thing or a fair sample thereof for inspection or examination
within a period of not more than ten days from the date of the
receipt
of the notice.”
(underlining
provided)
21] To
the extent that the use of the word “submit” was capable of
supporting an argument that the thing required for inspection
or
examination had to be presented for that purpose, that basis
disappeared as a result of the amendment because a deliberate change
of language in a statutory provision prima facie signifies a change
of intention (See:
Port
Elizabeth Municipal Council Port Elizabeth Electric Tramway Co Ltd
1947(2) SA 1269 (A) at 1279).
22] In
the premises the application in terms of Rule 30A(2) is dismissed
with costs.
_______________
D.
VAN REENEN