IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NA T AL LOCAL DIVISION , DURBAN
CASE NO: 0369/2023
In the matter between:
SHAYNE EDWARD MCGEE PLAINTIFF
and
RHO-TECH DEFENDANT
ORDER
The following order is granted:
1. The defendant is ordered to render an account in respect of plaintiffs commissions
within 15 days from date of this order.
2. The defendant must pay costs of the action.
2
JUDGMENT
HLATSHWAYO AJ
Introduction
[1] Before me is an action instituted by the plaintiff against the defendant for rendering
an account and debatement of that account. The dispute has its genesis to the alleged
outstanding commission arising out of employment agreement between the parties, which
was entered into around 11 June 2018.
[2] The material terms of the agreement between the parties were that the plaintiff
would be employed by the defendant as the Account Manager and would be assigned
customers for purposes of securing sales and maintaining contacts with those clients.
When work has been done for the customer, the plaintiff would be entitled to commission
of 7 per cent on the gross profit earned from the sales, after the said customer has made
payments and _upon completion of the defendant's internal processes .
Background
[3] It is not in dispute that on 14 May 2020, plaintiff was suspended and was instructed
to remain at home. This was at height of the COVID-19 pandemic , and the employmen t
relationship between the parties thereafter ended around June or July 2020.
[4] There is some history of litigation that ensued subsequently . It is common cause
that the plaintiff issued summons in Durban Magistrate 's Court (Magistrate 's Court),
claiming commission for sales in respect of a client known as Subtech Pty Ltd. In addition
to this claim for commission, the plaintiff also sought an order compelling the defendant
to render an account and for debatement of that account.
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[5] The plaintiff subsequently obtained judgment in respect of the outstanding
commission ; but, was unsuccessful on the relief for the defendant to render the account
and for the debatement of that account. The Magistrate 's Court found that it had no
jurisdiction to determine this relief.
[6] I digress to mention that the plaintiff pursued further action by referring the dispute
to the Commission for Conciliation , Meditation , and Arbitration (CCMA}, and thereafter
referred the dispute to the Labour Court alleging unfair dismissal. The litigation in the
labour court is still pending.
[7] In this court, the plaintiff alleges that, as of May 2020, he had no access to the
records of the defendant and is not in possession of sales agreements , records of profits
earned, or payment by customers.
Summary of evidence
[8] The plaintiff was the only witness that testified in support of his case. He testified
about the process by which customers were allocated to him. Once customers are
assigned, they would be entered in his name to a programme or app known as Customer
Relations Management (CRM). In this programme the profile of all existing and new
clients were loaded.
(9] The purpose of loading information into the CRM programme was to manage
customer relations. In this programme , quotations and responses from customers would
be entered. If a customer agrees to a purchase order, the status that will be reflected on
the CRM would be that the contract is "successful " or "won".
[1 O] Following this a job cut would be completed and a meeting of all relevant parties
including the plaintiff would be scheduled to discuss the parameters of the job. This
meeting would also address and approve the costs associated with the project.
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[11] When it comes to payment by customers , the defendant would either open a credit
facility for the customer or the relevant customer would pay in cash. However, the records
of payments by customers were not recorded on the CRM system but were kept by the
defendant's administration section.
[12] The plaintiff's responsibility was to record quotations and the sale on the CRM
system, and a copy would be made available to the Sales Manager. The defendant
debtor's clerk and administrative staff would allocate costs of the job in question on the
system known as Jobsys. This is then be integrated into the Sage accounting system
from which an -Excel sheet reflecting clients and commission would be printed. If plaintiff
is satisfied with the information , he would affix his signature thereon. If unsatisfied , he
would raise the necessary query. Once all queries are resolved, the Sales Manager would
sign the spread sheet, the General Manager and Chief executive Officer would
respectively sign, authorising payment of the plaintiff's commission .
[13] The plaintiff's case is that, when he was suspended on 14 May 2020, he had no
access to the defendant's CRM system nor did he have access to other records of the
defendant. However, prior to his suspension , there were jobs and orders that had been
received. While the plaintiff retained copies of quotations and email correspondences , he
lacked access to the details of the prior jobs.
[14] The plaintiff further alleged that the terms of the agreement in the particular section
"F" outlines the procedure regarding sales however, not all the procedures were followed
and the details of quotations and sales waited until end of the month. Nevertheless , he
would be entitled to and did receive commission when it was due.
[15] During cross-examination , the plaintiff admitted albeit reluctantly that his contract
reflects the name of the defendant on the top right corner as a close co-operation. The
same close co-operation with registration numbers were reflected on the pay slips that he
received monthly. He thus conceded that he knew the description of his employer and
that the defendant was incorrectly cited as a sole proprietary in the particulars of claim.
s
[16) He further conceded that the salary advices which were handed to court as exhibit
"D", was a statement reflecting his commission. He also admitted that he did not discover
pleadings for his Labour Court case and the audio recordings of the initial oral agreement
with the defendant which he alleges contained further terms of the agreement on
commission. The plaintiff then closed his case.
[17) The defendant also closed its case without calling any witnesses. It is appropriate
at this stage to note that the defendant in its plea raised two special pleas of res judicata
and prescription. These special pleas were not vigorously pursued during submission but
were also not withdrawn. I am therefore constrained to briefly consider them.
Res judicata
[18] The defendant submitted in its plea that the plaintiffs claim was dispositively
finalised in the Magistrate's Court where the plaintiffs claim for the same relief was dealt
with. It was submitted that in the Magistrate's Court, the defendant pleaded and denied
the plaintiffs right to such relief, and such relief was dismissed.
[19) It is trite that the basic requirements for the plea of res judicata to be successful ,
the cause of action and relief claimed in the finalised case must be the same as in the
subsequent case. The principles underpinning the plea of res judicata has been
thoroughly judiciary considered in numerous cases. In Smith v Porritt, 1 the following was
said regarding this plea:
'Following the decision in Boshoff v Union Government 1932 TPD 345 the ambit of the exceptio
rei judicata has over the years been extended by the relaxation in appropriate cases of the
common law requirements that the relief claimed and the cause of action be the same in both the
case in question and the earlier judgment. Where the circumstances justify the relaxation of these
requirements those that remain are that the parties must be the same and that the same issue
must arise. Broadly stated, the latter involves an inquiry whether an issue of fact or law was an
1 Smith v Porrit and Others [2007] ZASCA 19; 2008 (6) SA 303 para 10.
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essential element of the judgment on which reliance is placed.'
[20] In Democratic Alliance v Brummer ,2 the court outlined how this issue must be
approached. It held:
'The first question is to determine whether, as a matter of fact, the same issue of fact or law which
was determined by the judgment of the previous court is before another court for determination .
This is so because if the same issue (eadem quaestio) was not determined by the earlier court,
an essential requirement for a plea of res judicata in the form of issue estoppel is not met. There
is then no scope for upholding the plea.'
[21] In this matter, the plaintiff submitted that the Magistrate 's Court dealt with and
granted the plaintiff's claim in respect of a client known as Subtech (Pty) Ltd (Subtech) .
However, the Magistrate 's Court did not deal or make a finding on the merits or demerits
of the claim for rendering an account.
[22] When this was pointed out, counsel for the defendant conceded that the
Magistrate 's Court only dealt with the abovementioned client. Indeed, it is clear, from the
particulars of claim filed in the Magistrate's Court3 and from the evidence of the plaintiff,
that the claim in the Magistrate 's Court was in respect of client known as Subtech from
which judgment was granted.
[23] It is also undisputed that the claim for rendering of an account was dismissed by
the Magistrate 's Court for lack of jurisdiction . As no determination was made regarding
the merits of the rendering an account, this Court cannot conclude that the same issue is
now before it. Consequently , there is no basis for the defendant's special plea of res
judicata, and it was unnecessary for the defendant to persist with this plea.
Prescription
[25] The second special plea raised by the defendant is based on prescription. The
2 Democrat ic v Brummer [2022] ZASCA 151 para 13.
3 See exhibit "A" at 1 o.
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defendant submitted that it received summons from the plaintiff in January 2023, and that
any claim that arose before 19 January 2020 have expired through prescription . The
defendant further contends that the plaintiffs request for rending an account would be
limited to any period after January 2020 until the plaintiff left employment in July 2020.
[26] This special plea seeks to attack claims, if any, for period prior to January 2020.
Section 11 (d) of the Prescription Act 68 of 1969 (the Prescription Act) provides that a debt
prescribes after three years from the date the debt is due. However, the plaintiff's
contention is that service of the summons in this matter was on 8 February 2023 and this
service interrupts prescription .
[27] Section 15( 1) of the Prescription Act deals with judicial interruption of prescription
and provides that the 'The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any process whereby the
creditor claims payment of the debt'.
[28] Accordingly , the service of summons upon the defendant on 8 February 2023
interrupted any prescription for claims arising three years prior to this date. However, the
plaintiff's reliance on the above interruption does not address the defendant 's complaint.
The defendant's plea is directed at claims emanating before January 2020 which is not
covered by the interruption . It is nonetheless obvious from the evidence and documents
filed that plaintiff issued summons in the Magistrate 's Court in October 2020 which simply
means that claims arising three years before the magistrate 's court summons were valid.
Again, counsel for the defendant abandoned this plea during submission despite the
earlier persistence with this defence. Consequently , there is no substance to the
defendant's special plea.
Discussion on merits
[29] The defendant contended that the plaintiff's citation of the defendant as a sole
proprietor instead of a close corporation is incorrect. This is despite the plaintiff's full
8
knowledge of his employer and the defect brought to the attention of the plaintiff as far
back as 2020 when the defendant pleaded in the Magistrate 's Court. Before this court,
the defendant again disputed its citation in its plea filed in May 2023 and to date no
amendment was sought. The defendant contended that this defect is fatal to the plaintiffs
claim.
[30] It is abundantly clear that plaintiff has either had knowledge or the very least ought
to have known the description of the defendant for a very long time. The contract of
employment he signed on 11 June 2018 bears the details of the defendant as a close
corporation bearing its registration number and not a proprietor . The pay slips he admitted
receiving monthly, also reflects the details of the close corporation. Moreover , in the
pleadings both in the Magistrate 's Court and subsequently in this court, the defendant
persistently denied that its citation was correct and this should have sounded alarm bells
to plaintiff regarding the Irong citation. Accordingly , the plaintiff has had ample
opportunity to remedy this d feet and his failure to rectify it is simply inexplicable.
[31] Counsel for the plaintiff submitted that the employment contract lists a number of
subsidiaries of the defendant. In his evidence, the plaintiff also testified that he worked on
clients for different subsidiaries and therefore took a cautious approach. This submission
is unsound. Subsidiaries listed by the defendant has no legal status in light of an
unambiguous description of the defendan t as a close corporation and counsel correctly
did not take the argument further. She submitted that, in the event of the court finding that
the defendant was not correctly cited, as I have now found, she applies in terms of Rule
28 for the amendment of the particulars of claim to reflect the correct citation of the
defendant as a close corporation. This application is opposed by the defendant.
Amendment
[32] It is apposite to restate to approach of our courts when faced with the application
for an amendment. This court enjoys a wide discretion to grant the amendment in order
to facilitate a proper ventilation of disputes unless the defendant will suffer prejudice that
9
cannot be cured by an appropriate costs order. In this regard, I can do no better than to
borrow from the words of Ngcobo J in Affordable Medicines Trust and Others v Minister
of Health and Another,4 where he said:
'The principles governing the granting or refusal of an amendment have been set out in a number
of cases. There is a useful collection of these cases and the governing principles in Commercial
Union Assuranc(_!J Co Ltd v Waymark NO. The practical rule that emerges from these cases is that
amendments will always be allowed unless the amendment is ma/a tide (made in bad faith) or
unless the amendment will cause an injustice to the other side which cannot be cured by an
appropriate order for cost, or "unless the parties cannot be put back for the purposes of justice in
the same position as they were when the pleading which it is sought to amend was filed.'
[33] More pertinent to this matter, the remarks by Heher JA in 8/aauwberg , 5 are
important. He said the following:
"While the entitlement of the debtor to know it is the object of the process is clear, in its case the
criterion fixed in s 15(1) is not the citation in the process but that there should be service on the
true debtor (not necessarily the named defendant) of process in which the creditor claims payment
of the debt. The section does not say ' ... claims payment of the debt from the debtor'. Presumably
this is so because the true debtor will invariably recognise its own connection with a claim if details
of the creditor and its claim are furnished to it, notwithstanding any error in its own citation."
[34] The premise of the application before me is that summons was served at the
correct address of the close corporation. The defendant has defended the action
throughout and has engaged with every step of the litigation including in the Magistrate's
Court as far back as in 2020. There is no prejudice to be suffered by the defendant should
the amendment be allowed. Counsel for the defendant on the other hand argued that
there was no application for amendment since plaintiff insist that the citation of the
defendant was correct, and the application is conditiona l upon the court's finding that the
defendant was incorrectly cited.
4 . Affordable Medicines Trust and Others v Minister of Health and Another (2005] ZACC 3; 2006 (3) SA
247 (CC); 2005 (6) BCLR 529 (CC) para 9.
5 Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd (2003] ZASCA 144; 2004 (3) SA
160 (SCA) para 18. See also Foxlake Investments (Pty) Ltd t/a Foxway Developments (Pty) Ltd v Ultimate
Raft Foundation Design Solutions CC tla Ultimate Raft Design and Another (2016] ZASCA 54 para 13.
10
[35] The argument by the defendant has no substance . There is nothing that militates
against seeking a relief in the alternative. Nonetheless , the defendant has not alleged any
form of prejudice or mala tides as outlined in Affordable Medicines6. At best the defendant
alleges that the misdescription by the plaintiff was not inadvertent but was deliberate
considering that the correct description was always in his knowledge. This submission
fails to take into account that A party may be under a mistaken belief that the citation is
correct. There is no requirement in terms of Rule 28 for Plaintiff to show that failure to
correctly cite the defendant was not deliberate.
[36] From the facts, there is no doubt that the defendant recognised its connection with
the claim upon receipt of the claim hence it has engaged with the claim in every step of
the litigation and as per the evidence of the plaintiff, it also paid his judgment from the
Magistrate 's Court arising out of the claim. There is therefore no prejudice to be suffered
by the defendant as a result of the amendment and the application for amendment is
accordingly granted.
Rendering and debatement of the account
[37] I turn now deal with the main reason for the action before me. It is trite that the
plaintiff is entitl_ed to receive an account if he establishes a right to it whether by virtue of
a contract or by fiduciary relationship , some contractual circumstances or terms having a
bearing on the account he seeks, and the defendant's failure to render an account.7 In
this matter I have no hesitation that, from the nature of the contract between the parties
and from plaintiffs evidence that he had performed work prior to his suspension , a
contractual right to an account exists. There is however some dispute whether the plaintiff
has established some basis that he requires the account and whether he was provided
with an account.
[38] It was argued that plaintiff was required to comply with sales administrative
6 Affordable Medicines above fn 5 para 32.
7 See Doyle and Another v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A).
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procedures referred to under section F of the contract in order be entitled to commission.
It was submitted that his entitlement has nothing to do with the CRM programme and the
plaintiff cannot rely on the oral agreement. The defendant led no evidence in support of
the submission that failure to comply with the said procedures disentitled the plaintiff to
his commission and that he was not paid commission . The agreement itself provides no
such consequence. The plaintiff on the other hand testified about a significantly similar
procedure which resulted in payment of his monthly commission during the duration of
his employment with the defendant. Contrary to the defendant 's submission , the CRM
programme , as described by the plaintiff, is specifically recorded in the agreement where
orders were recorded.8
[39] The defendant further submitted that the plaintiff failed to put up documents or
clients showing that he is entitled to commission. The evidence of the plaintiff is that he
activated certain jobs and received orders prior to his suspension and that he is in
possession of some of the documents. The demand by the defendant that he must show
that he is entitled to commission is without merit. The undisputed evidence of the plaintiff
is that he had no access to the records of the defendant where the details of his clients
are kept including payments by those clients to the defendant. The very nature of the
relief sought is rendering an account and the subsequent debatement thereof. To expect
the plaintiff to prove his entitlement to commission even before the account is rendered
is irrational.
[40] It was the defendant 's submission that it had rendered an account to the plaintiff
as alleged in its plea. In support of this contention the defendant placed before court
salary slips of the plaintiff9 reflecting payment of his commission. The defendant argued
that because the plaintiff failed to replicate, his relief is not for the rendering of an account
but rather that the account provided is incorrect or insufficient. It was further submitted
that the plaintiff failed to separate the relief and claimed both an account and debatement.
The only time debatement may be ordered is where an account has already been
8 See exhibit 8 page 10 paragraph F (v).
9 See exhibit D at 1-7.
12
received but is incorrect or insufficient. There is nothing in the plaintiff's case to suggest
that the account he received was inadequate . Reliance was placed on Video
Parktown North (Pty) Ltd.10 Which quoted Ooy/e11 to conclude that the right to an account
and the adequacy of the account may be dealt with separately.
[41] Indeed from the analysis of the leading authorities including Doyle, 12 it is clear that
the right to receive an account must be separated from the accuracy and adequacy of the
account. Clearly debatement would occur where the account is inaccurate and not from
failure to account. Depending on the circumstances, these claims may be dealt with in
stages. The fact that Plaintiff has not separated the relief sought is not a bar to the court
ordering the rendering of an account especially where it finds that the defendant has an
obligation to do so. This approach is consistent with the observations of Holmes JA 13 in
cases where plaintiff is seeks an account and debatement. He said the following:
"2. On proof of the foregoing , ordinarily the Court would in the first instance order only the
rendering of an account within a specified time. The degree or amplitude of the account to be
rendered would depend on the circumstances of each case. In some cases it might be appropriate
that vouchers or explanations be included. As to books or records, it may well be sufficient,
depending on the circumstances . that they be made available for inspection by the plaintiff. The
Court may define the nature of the account.
7. In general the Court should not be bound to a rigid procedure , but should enjoy such measure
of flexibility as practical justice may require."
(42] The duty to account is a substantive legal duty and is fulfilled when the party obliged
to account explains his actions and justifies his conduct.14 In this case the nature of the
account sought by the plaintiff and the question whether the defendant has explained and
10 Video Parktown North (Pty) Ltd v Paramount Pictures Corporation , Video Parktown North (Pty)
Ltd v Shelburne Associates and others, Video Parktown North (Pty) Ltd v Century Associates and
others 1986 (2) SA 623 (TPD) at 638E-G.
11 Doyle above fn 8.
12 Ibid.
13 Ibid.
14 Doyle above fn 8 at 763 .. See also Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services
(Pty) Ltd and Another. [2023] ZAGPJHC 475.
13
justified its actions is best determined by having regards to the pleadings , the evidence
of the plaintiff, the agreement and other documents.
[43] The plaintiff, in his testimony has outlined the process that was followed resulting
in payment of his commission. I do not intend to repeat his evidence. It would suffice to
mention that the process he outlined is not in conflict with the sales procedure in the
agreement and is in fact complementary in certain respects. Specifically, section F (ii)
dealing with quotations and F (viii) dealing with capturing of information to the CRM
programme is the similar to evidence. The plaintiff's evidence then tallies with paragraphs
5A (b), 5A(C), 6(b)and 6(C) of the particulars of claim which deals specifically with his
entitlement to a percentage of commission on the profit earned on the sales and from the
resultant payments by customers. This is exactly the account the plaintiff calls for and the
defendant has a duty in terms of the agreement to render.
[44] The defendant 's submission that it has rendered an account in the form of payslips
is flawed and unsustainable . It does not constitute an account consistent with its duty in
terms of the contract of employment to render an account on commission earned by the
plaintiff after the latter has, inter alia, secured orders from customers and payment from
those customers to the defendant in respect of the said orders. The payslips do not have
orders the plaintiff has secured, payments made by customers , profits earned from that
work for the plaintiff to be able to calculate his commission . They also do not address the
undisputed processes followed by the defendant in recording the sales on its CRM
system, Jobsys and the Sage accounting programmes . It was the plaintiff's evidence that
from these programmes an excel sheet showing how the commission was earned would
be generated. In relying on the payslips, the defendant expects the plaintiff to accept its
mere say so regarding commissioned earned.
[45] I am satisfied that the plaintiff has established that he is entitled and needs an
account regarding his commission. The defendant has failed to account and has failed to
justify its conduct. The defendant must therefore be ordered to render an account.
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Order
[46] In the result, the following order is made:
1. The defendant is ordered to render an account in respect of plaintiffs commissions
within 15 days from date of this order.
2. The defendant must pay costs of the action.
...---------
15
Appearances
Counsel for the Plaintiff: Ms. Bramdhew
Instructed by: Henwood Britter and Caney
Phone: (031) 303 3621
Email: rbd@henwoodbritter.com
Counsel for the Defendant: Mr. D William
Instructed by: John Dua Attorneys
Phone: (031) 701 5000
Email: john@dualegal.co.za
Date of Hearing: 10.02.2025 and 11.02.2025
Date Judgment Delivered: 12 03.2025