Yellow Jacket CC and Another v Long Distance Transport (Pty) Ltd (809/99) [2002] ZANCHC 14 (10 May 2002)

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[2002] ZANCHC 14
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Yellow Jacket CC and Another v Long Distance Transport (Pty) Ltd (809/99) [2002] ZANCHC 14 (10 May 2002)

Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
no:
809/99
Date
heard:
2002-05-07
Date
delivered:
2002-05-10
In
the matter of
:
YELLOW
JACKET CC FIRST PLAINTIFF
USABCO
(PTY) LIMITED SECOND PLAINTIFF
versus
LONG
DISTANCE TRANSPORT (PTY) LIMITED DEFENDANT
Coram:
MAJIEDT
J
JUDGEMENT
MAJIEDT
J:
This
matter was set down for hearing on the issue of the quantum of the
respective claims herein only. The parties have settled
most of
their outstanding differences including the quantum of damages
payable to each other. That settlement is embodied in what
is
labelled a “
Settlement
Agreement”
,
the terms whereof I have been asked merely to note at this juncture
given the fact that there are still outstanding issues between
the
parties. These outstanding issues are the following:
Whether
the Plaintiffs are entitled to interest on the amounts claimed from
the date of service of summons on the Defendant and
if not, from
which date should such interest run?
What
costs awards should be made in the circumstances?
It
is important to note at the outset that the dispute as between the
First Plaintiff and the Defendant had been settled on
the basis of
an apportionment of 65/35 in favour of the First Plaintiff. The
dispute as between Second Plaintiff and Defendant
had been settled
on the basis that the Defendant pays to the Second Plaintiff an
amount which equals 50% of the Second Plaintiff’s
agreed
quantum.
The
nett result of the aforementioned agreement is that the Defendant
is indebted to the First Plaintiff in the sum of R120110,38
and to
the Second Plaintiff in the sum of R55726,85.
The
dispute in respect of the date from which interest should run
arises as follows:
For
the First Plaintiff Mr Combrinck has submitted that set-off should
apply whereby the respective debts would be extinguished
and
interest should be awarded on the amount which in the nett result
the Defendant would owe to the First Plaintiff. Such interest
should then run at the legally prescribed rate from the date of the
service of summons. In respect of the Second Plaintiff Mr
Combrinck has submitted that interest should run from the date of
service of summons.
Mr
Amiradakis for the Defendant on the other hand, has submitted that
set-off should not apply and that I should give judgement
on the
claim in convention as well as the claim in reconvention and make
the usual orders as to interest on the respective claims.
In
addition he has submitted that the Plaintiff’s particulars of
claim does not meet the requirements set forth in sec 4(ii)
of
the Prescribed Rate of Interest Act, no. 55 of 1975 (
“the
Act
”)
and in Uniform Rule of Court 18(10). With regard to the Second
Plaintiff’s claim for interest, he has submitted that
the Second
Plaintiff is only entitled to interest as from 24 April 2002,
the date on which a letter was written by the Second
Plaintiff’s
attorneys to the Defendant’s attorneys containing a description
of the movables destroyed in the collision which
is the subject
matter of the dispute and which had not been particularized in that
manner in the particulars of claim of the
Second Plaintiff.
I
find it convenient to deal first with the submissions advanced by
Mr Amiradakis concerning the adequacy of the Plaintiffs’
particulars of claim regarding the damages allegedly incurred by
them. Rule 18(10) requires a plaintiff suing for damages
to set
them out in a matter which would enable a defendant reasonably to
assess the quantum of such damages. In addition,
sec 4(ii)
of the Act reads as follows:
“
'demand'
means a written demand setting out the creditor's claim in such a
manner as to enable the debtor reasonably to assess the
quantum
thereof.”
Rule
18(10) quite clearly envisages that there should be more than a mere
broad statement of principles as to the basis on which
damages are
being claimed. See
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a LH Marthinusen 1992(4) SA 466(W)
at
472.
On
the other hand, however, there is a concomitant responsibility on a
Defendant to take the necessary steps to make a reasonable
assessment
of the Plaintiffs’ damages: a defendant is not a mere passive party
in this process. See:
Simmonds
v White and Another 1980(1) SA755(C)
where Friedman J said the following at 759A:
“
The
Rules do not contemplate that a defendant can sit back and expect to
be supplied with all the information he might require in
order to
make an adequate tender. It is expected of a defendant that he should
make his own investigations.”
In
the present instance Mr Amiradakis’ complaint is that the First
Plaintiff has, unlike the Defendant in its counterclaim, had
failed
to specify the make and model of its vehicles and had simply
furnished the registration numbers thereof. With regard to the
Second Plaintiff, the complaint is that it had failed to specify the
damaged goods, as it has done in the aforementioned letter of
24
April 2002. It is notable that the Defendant, if indeed it had a
valid complaint regarding the adequacy of the Plaintiffs’
particulars of claim, has failed to avail itself of the various
remedies available to it. So for instance it has failed to:
Request
assessors’ reports and the like from the Plaintiffs;
Request
from the authorities details of the vehicles on the strength of the
registration numbers of the vehicles furnished by the
First
Plaintiff in his particulars of claim;
File
an exception as to the pleading being vague and embarrassing or
proceeding in terms of Rule 18(12) read with Rule 30;
Requesting
details of the vehicles and movables in a written request for
further particulars to prepare for trial.
In
my view Mr Amiradakis’ complaint has no merit and I am further of
the view that Plaintiffs’ particulars of claim pass muster
when
regard is had to Rule 18(10). A Defendant, confronted with
particulars of claim framed as those are in the present matter would,
with a little effort on its part, be in a position to ascertain the
quantum of the Plaintiffs’ damages. Section 4(ii) of
the Act,
quoted above, to my mind imposes no further obligation on a pleader
of fact in as much the section is almost identically
worded to
Rule 18(10). What I have held therefore in respect of
Rule 18(10) applies equally to sec 4(ii) of the Act.
I
now turn to the question of set-off as contended for by Mr
Combrinck for the Plaintiffs. It is well settled in our law that
set-off comes into operation when two parties are mutually
indebted to each other and both such debts are liquidated and

fully due. One debt would extinguish the other
pro
tanto
as
effectually as if payment has been made. Once set-off has been
established, the claim is regarded as extinguished from the
moment
the mutuality of the debts existed.
See
in this regard:
Schierhout
v Union Government (Minister of Justice)
1926 AD 286
at
290;
Mahomed
v Nagdee 1952(1) SA 410(A)
.
It
is not in dispute that:
the
parties hereto are mutually indebted to each other; and
both
such debts are liquidated (having been agreed upon) and are fully
due.
Set-off
should be clearly distinguished from payment of a debt in the
ordinary course of business.
See:
Absa
Bank Ltd v Standard Bank of SA Ltd 1998(1) SA 242 (SCA)
at 251 G.
In
my view what Mr Amiradakis proposes would amount to a simple payment
of a debt as agreed between the parties. His proposal may
lead to
startling results in practice. One such startling result as advanced
by Mr Combrinck is that the Defendant may be able to
execute on a
writ as a consequence of a judgement in its favour, whereas the
Plaintiffs may not be able to do so, for example by
reason of the
fact that the Defendant does not own sufficient realisable assets to
satisfy the writ. In the premises therefore I
am of the view that
set-off operates in this matter and that I should indeed eventually
grant judgement in an amount in favour of
the Plaintiffs once set-off
has been applied.
Section
2A of the Act, introduced by way of amendment on 5 April 1997,
drastically altered the common law in that interest may
now be
claimed on an unliquidated debt. The material portions of section
2A reads as follows:
“
2A(1) Subject
to the provisions of this section the amount of every unliquidated
debt as determined by a court of law, or an arbitrator
or an
arbitration tribunal or by agreement between the creditor and the
debtor, shall bear interest as contemplated in s 1.
(2)(a) Subject
to any other agreement between the parties the interest contemplated
in ss (1) shall run from the date on which payment
of the debt is
claimed by the service on the debtor of a demand or summons,
whichever date is the earlier.
............
(5) Notwithstanding
the provisions of this Act but subject to any other law or an
agreement between the parties, a court of law,
or an arbitrator or an
arbitration tribunal may make such order as appears just in respect
of the payment of interest on an unliquidated
debt, the rate at
which interest shall accrue and the date from which interest shall
run.”
Interest
is generally to be awarded in terms of the provisions contained in
sec 2A(2). In certain overriding, discretionary
instances,
interest could be awarded in terms of sec 2A(5)
supra
.
See:
Adel
Builders (Pty) Ltd v Thompson
1999 (1) SA 680
(SE)
at 692 G as confirmed on appeal at
2000(4)
SA 1027 (SCA)
at
1032 G-I.
In
the present matter the Plaintiffs ask for interest to run as from the
date of service of their summons. Mr Amiradakis has, based
on his
earlier submissions advanced in respect of the adequacy of the
Plaintiffs’ particulars of claim as regards the quantum of
the
damages, contended for a much later date. For the reasons which I
have set forth herein, I am of the view that interest should
indeed
run as contended for by the Plaintiffs. There are no compelling
considerations why it should not run from the date as provided
for in
sec 2A(2). In any event, even if I had had to exercise my
discretion in terms of sec 2A(5), the end result would
have been
the same.
There
remains the question of costs. I shall deal with the position of
the Second Plaintiff first, since it is the easier of
the two.
There has been agreement between the parties as per a letter
between the attorneys which was handed in by agreement
at the
hearing as exhibit E, that the Defendant will be liable for
50% of the Second Plaintiff’s costs up to and including
the 9
th
February 2001 which is the date of the said letter. At the
previous hearing when the merits were dealt with, counsel for the
Plaintiffs had indeed placed on record that Second Plaintiff is
not proceeding with its claim as against the Defendant. The
reason for that recordal is clearly in view of the contents of
exhibit E which had not been placed before me at that time.

Be that as it may, it seems to me therefore that Mr Combrinck is
correct that I should in accordance with exhibit E order
that
the Defendant pays
50%
of the Second Plaintiff’s costs up to and including 9
th
February 2001; and
the
Second Plaintiff’s full costs as from 16
th
February 2001 until date of payment.
With
regard to the position of the First Plaintiff, Mr Amiradakis has
advanced the following contentions: Firstly that I should
disallow
the qualifying fees of the expert witness
Lubbe
who testified during the merits for the Plaintiffs, and secondly that
I should make an apportionment as to the costs similar to the
apportionment agreed between the parties, i.e. 65/35.
The
first contention is based on the startling submission that, according
to Mr Amiradakis’ instructing attorney, the Plantiffs’
lay
witnesses were of such good quality that it was not necessary to have
called
Lubbe
.
This contention is so misguided that it warrants no further comment.
Suffice to say that since the matter had been settled on
the merits,
and no judgement on the credibility or otherwise of any witnesses had
been necessary in the circumstances, the contention
should be
rejected without much ado. The Plaintiffs were quite clearly
entitled to advance such evidence as they deemed necessary
in the
circumstances to prove their case on a balance of probabilities.
Such evidence to my mind include that of the expert witness
Lubbe
.
As
to the second contention I am of the view that it is not advisable to
make apportionments when it come to costs. The First Plaintiff
has
been substantially successful and deserves the normal costs order
which follows the result.
In
the premises I issue the following order:
The
terms of the settlement agreement, marked X and initialled by me
and dated 7
th
May 2002, is made an order of Court.
Judgement
is entered for First Plaintiff as against Defendant in the sum of
R120110.38.
Defendant
is ordered to pay interest on the aforesaid sum of R120110.38 at
a rate of 15.5% per annum from date of service
of summons to date
of payment.
Defendant
is ordered to pay First Plaintiff’s cost of suit.
Judgement
is entered for the Second Plaintiff as against the Defendant in
the sum of R55726.85.
Defendant
is ordered to pay interest on the aforesaid sum of R55726.85 at
the rate of 15.5% per annum from date of service
of summons to
the date of payment.
The
Defendant is ordered to pay 50% of the Second Plaintiff’s costs
up to and including 9
th
February 2001 and to pay the full costs of the Second Plaintiff
from 16
th
February 2001.
___________
SA
MAJIEDT
JUDGE
ADVOCATE
FOR THE PLAINTIFF
: L
COMBRINCK
ADVOCATE
FOR THE DEFENDANT:
AG
AMIRADAKIS
ATTORNEY
FOR THE PLAINTIFF:
DUNCAN
& ROTHMAN
ATTORNEY
FOR THE DEFENDANT:
VAN
DE WALL & PARTNERS
DATE OF
HEARING: 2002-05-07
DATE
OF JUDGEMENT: 2002-05-10