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[2012] ZAWCHC 243
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Manwood Underwriters (Pty) Ltd and Others v Old Mutual Life Assurance Company (South Africa) Ltd (23787/10) [2012] ZAWCHC 243; [2013] 1 All SA 701 (WCC) (5 December 2012)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH court of
South Africa
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
REPORTABLE
CASE NO: 23787/10
In the matter between:
MANWOOD
UNDERWRITERS (PTY) LTD
.................................................
First
Plaintiff
PERCIVAL
COLIN MONTGOMERY
.......................................................
Second
Plaintiff
TASMIN
MONTGOMERY
...........................................................................
Third
Plaintiff
and
OLD
MUTUAL LIFE ASSURANCE COMPANY
(SOUTH
AFRICA) LIMITED
............................................................................
Defendant
JUDGMENT DELIVERED ON
5 DECEMBER 2012
DAVIS AJ
:
Introduction
[1] This is an
application brought by the plaintiffs for leave to amend their
particulars of claim in terms of rule 28(4) of the
Uniform Rules of
Court (“the rules”), which relief is opposed by the
defendant.
Background
[2] On 5 October 2006 the
second and third plaintiffs (“the Mongomerys”), who were
then resident in the United Kingdom,
entered into a contract with the
defendant (“Old Mutual”), through a branch of defendant
styled “Old Mutual Guernsey”
situate in Guernsey, Channel
Islands, in terms whereof the Mongomerys invested an amount of
£ 260 000,00 with Old
Mutual (“the investment
contract”).
[3] The investment
contract provided, in essence, that the Montgomerys would pay an
amount of £ 260 000, 00 to Old
Mutual which would be
invested by Old Mutual, and that the Montgomerys would be entitled to
withdraw the monies so invested upon
notice given in accordance with
the investment contract (“notice of encashment”), at
which time the value of the funds
invested, calculated in accordance
with a pre-determined formula, would become due and payable to the
Montgomerys. The investment
contract stipulated certain requirements
as to where, how and by whom notice of encashment had to be given to
the defendant (“the
notice requirements”).
[4] On 26 October 2010
the plaintiffs instituted action against the defendant in which they
claimed payment of an amount of R 4 342 233.89,
being
the rand equivalent of £ 275 288.39, which amount
represented the value of the investment which was allegedly
due to
the Montgomerys in terms of the investment contract as at 14 February
2008 (“the encashment value”).
The pleadings
[5] In their particulars
of claim, as originally framed, the plaintiffs based their claim
squarely on the investment contract, alleging
that notice of
encashment had been given by the Montgomerys’ agent, that the
defendant’s refusal to pay the encashment
value to the
Montgomerys represented a breach of the investment contract, and that
they were therefore entitled to damages in the
sum of £ 275 288. 89,
which was equivalent to the encashment value which they ought to have
received. Although
the claim is couched as one for damages, it seems
to me that it is in reality a claim for payment, ie performance of
the contract.
[6] On 15 December 2010
defendant delivered a plea on the merits in which it disputed that
the Montgomerys had given a valid notice
of encashment in terms of
the investment contract, and accordingly denied that there was any
amount due and payable to the Montgomerys
in terms of the investment
contract.
[7] On 21 February 2012
plaintiffs delivered a notice of intention to amend their particulars
of claim by the introduction of an
additional paragraph which is
evidently aimed at meeting the defendant’s contention that the
notice of encashment did not
comply with the notice requirements.
Defendant objected in writing to the proposed amendment on 9 March
2012, prompting the plaintiffs
to bring the present application for
leave to amend.
[8] The notice of
intention to amend seeks to augment the particulars of claim by the
introduction of an additional paragraph 29.A
which comprises five
sub-paragraphs, each of which is further broken down into sub
sub-paragraphs. As the notice of intention to
amend runs to ten
pages, it is too lengthy to quote in full. It suffices, for present
purposes, to outline the structure of the
proposed amendment:
(i) paragraph 29A. is an
introductory paragraph which indicates that the averments in the
ensuing sub-paragraphs are made in the
alternative and in the event
of its being found that the notice of encashment did not comply with
the requirements of the investment
contract;
(ii) paragraphs 29A.1 to
29A.3 contain factual allegations regarding representations allegedly
made by the defendant, and reliance
thereon by the Montgomerys and
their agent, to the Montgomerys’ detriment;
(iii) paragraph 29A.4
contains conclusions of law based on the facts set out in paragraphs
29A.1 to 29A.3, it being asserted that
the defendant, in the
circumstances, waived strict compliance with the notice requirements
and is estopped from relying thereon;
(iv) paragraph 29A.5
contains a further alternative claim, which is also based on the
facts set out in paragraphs 29A.1 to 29A.3.
It is averred that the
defendant breached a contractual obligation alternatively a general
(delictual) duty which rested on it
to ensure that correct
information was furnished to the Montgomerys and their agent.
[9] The gist of the
proposed amendment is to the effect that, if it is found that the
notice of encashment was not compliant with
the notice requirements
prescribed in terms of the investment contract, then the plaintiffs
aver that:
(i) during the period
late 2006 to early 2008 Old Mutual made representations to the
plaintiffs that the notice requirements were
no longer applicable and
need not be complied with for purposes of withdrawing an investment,
and that the notice of encashment
given on behalf of the Montgomerys
was sufficient for purposes of withdrawing the investment (“the
representations”);
that the Montgomerys had relied on the
representations to their detriment by failing to ensure that the
notice of encashment complied
strictly with the notice requirements;
and that in the circumstances Old Mutual had waived strict compliance
with the terms of
the investment contract, and was in any event
estopped from relying on the notice requirements. Consequently
defendants were barred
as a matter of law from asserting that the
notice of encashment was invalid (paragraphs 29A.1 to 29A.4);
(ii) in the alternative,
plaintiffs aver that the representations made by Old Mutual were
false and negligently made, and that Old
Mutual thereby breached a
contractual obligation owed to the Montgomerys to provide them with
correct information, alternatively
wrongfully breached a delictual
duty owed to them to ensure that the correct information was provided
to them, as a result of which
breach the Montgomerys suffered damages
in the amount claimed (paragraph 29A.5, read with paragraphs 29A.1 to
29A.3).
[10] For the sake of
convenience I shall refer to that part of the amendment which
pertains to waiver and estoppel as “the
waiver and estoppel
part” and to that part which deals with negligent misstatement
as “the negligence part”.
The objections raised
by the defendant
[11] The defendant
objects to the proposed amendment on the grounds that it is said to:
(i) introduce a new cause
of action based on negligence which was not previously pleaded and
which has prescribed (“the prescription
point”);
(ii) incorporate an
alternative claim based on estoppel, which is a ground of defence and
cannot be raised as a cause of action
(“the estoppel point”);
(iii) include an averment
which lacks the particularity required by rule 18(4) of the rules
(“the particularity point”).
The impact of Guernsey
law
[12] It is common cause
on the pleadings that the investment contract is governed by the law
of Guernsey. Given that Guernsey law
is the proper law of the
contract, it is necessary at the outset to consider what role, if
any, the chosen foreign law has to play
in the determination of this
application.
[13] In
Society
of Lloyds v Price; Society of Lloyds v Lee
1
(“
Price
”
),
Van Heerden JA set out the relevant conflict of laws rule as follows:
2
‘
According
to principles of South African private international law, matters of
procedure are governed by the domestic law of the
country in which
the relevant proceedings are instituted (the
lex
fori
).
Matters of substance are, however, governed by the law which applies
to the underlying transaction or occurrence (the proper
law or
lex
causae
).
’
[14] The characterisation
of an issue as procedural or substantive has traditionally been done
solely according to the law of the
lex
fori.
3
In
Price
,
however, the Supreme Court of Appeal
4
endorsed the application
of a
via
media
approach
to characterisation, which involves a consideration of both the rules
of the
lex
fori
and
the
lex
causae
pertaining
to classification. What is advocated is the making of a provisional
classification having regard to both systems of law,
followed by a
final characterisation which takes into account policy considerations
and which enables the court
‘
to
determine in a sensitive and flexible manner which legal system has
the closest and most real connection with the dispute before
it.’
5
[15] In the nature of
things, the application of the
via
media
approach
requires that there be evidence before the court of the relevant
foreign law rules. In this matter, however, there is no
evidence
before me regarding the content of Guernsey law as this is an
interlocutory application without affidavits. No doubt evidence
regarding the relevant foreign law principles will be led at a later
stage in the proceedings. I do not consider that I am able
to take
judicial notice of the content of Guernsey law, as provided for in
Section 1(1)
of the
Law of Evidence Amendment Act No. 45 of 1988
,
6
as it is not capable of
being ascertained readily and with sufficient certainty.
7
Nor would it be
appropriate for me to do so
mero
motu
and
without hearing the parties in that regard. In these circumstances,
therefore, I must necessarily classify the relevant issues
solely in
accordance with the
lex
fori
.
[16] Clearly the ultimate
question of whether or not the plaintiff ought to be given leave to
amend its particulars of claim is
a procedural matter. Likewise, the
estoppel and particularity points concern the manner of pleading,
which is a question of procedure.
These objections must therefore be
decided in accordance with South African law. The issue of
prescription, however, requires closer
scrutiny to determine whether
the issue should be classified as a matter of procedure or substance,
and therefore whether South
African or Guernsey law applies in that
regard.
The prescription point
[17] The defendant argues
that the claim sought to be introduced in terms of the misstatement
amendment has prescribed since it
is based on conduct which allegedly
occurred during the period late 2007 until early 2008, and that the
misstatement amendment
ought therefore to be disallowed. The
defendant apparently bases this contention on the three year
prescription period contained
in section 11(d) of the Prescription
Act 68 of 1968 (“the Prescription Act”).
[18] Much of counsels’
argument was centred on the question whether or not the claim(s)
sought to be introduced in paragraph
29A.5 of the proposed amendment
related to the same debt as that claimed in the original particulars
of claim. Mr Walters, who
appeared for the plaintiff, contended that
the claim(s) raised in the amendment involve the same debt as the one
already pleaded,
namely the Montgomery’s claim to payment of
the amount of £ 275 281.39. It seems to me that this
argument
overlooks the fact that a debt, or obligation, is the
correlative of a right of action,
8
and that where a creditor
has two rights of action, there are two corresponding debts.
9
[19] The right of action
sought to be enforced in the original particulars of claim is payment
in terms of the investment contract.
The rights of action involved in
the amendment are claims for damages based on negligent breaches of a
contractual duty, alternatively
a delictual duty, to furnish correct
information. To my mind the latter claims involve rights and
obligations which are essentially
different from those involved in
the former, and the debts are therefore not the same.
10
[20] Indeed the very fact
that the claims sought to be introduced in the amendment are couched
as alternatives to the main claim
for payment seems to indicate that
they involve different debts. As was pointed out by Eksteen AR in
Sentrachem
v Prinsloo:
11
‘
Die
eintlike toets is om te bepaal of die eiser nog steeds dieselfde, of
wesenlik dieselfde skuld probeer afdwing. Die skuld of
vorderingsreg
moet minstens uit die oorspronklike dagvaarding kenbaar wees, sodat
’n daaoropvolgende wysiging eintlik sou
neerkom op die
opklaring van ’n gebrekkige of onvolkome pleitstuk waarin die
vorderingsreg, waarop daar deurgaans gesteun
is, uiteengesit word …
So
’n wysiging sal uiteraard nie ’n ander vorderingsreg naas
die oorspronklike kan inbring nie
…’
(my
emphasis)
[21] It seems to me,
therefore, that the claims sought to be introduced in paragraph 29A.5
of the amendment have likely prescribed
under South African law. As
will become apparent, however, that is not a question I have to
decide. On the view I take of the matter,
the pertinent question is
whether the issue of prescription falls to be determined in
accordance with South African or Guernsey
law.
[22] A distinction has
traditionally been drawn in South African law between those
prescription statutes which operate to extinguish
rights, and those
which merely bar a remedy by imposing a procedural limit on the
institution of action to enforce the right. Statutes
of the former
kind are regarded as substantive in nature, while the latter are
regarded as procedural.
12
Section 10(1) of the
Prescription Act makes it clear that prescription under the Act
operates to extinguish a right. This means
that prescription in South
African law is classified as a matter of substantive law and not
procedure,
13
and as such is not a
matter for the
lex
fori.
Thus
the Prescription Act does not apply in this case.
[23] One must therefore
look to Guernsey law in order to ascertain whether prescription is
regarded as substantive or procedural
in Guernsey. If it is regarded
in Guernsey as substantive, Guernsey law will apply to determine the
issue of prescription. If,
however, prescription is characterised as
procedural in Guernsey, one will be faced with the conundrum of the
‘gap’
described by Booysen J in
Laconian
Maritime Enterprises Ltd v Agromar Lineas Ltd (“Laconian”)
14
where the
lex
fori,
being
substantive, does not apply, and the
lex
causae,
being
procedural, also does not apply. The court would in that event be
required to make a policy based choice as to which legal
system to
apply to resolve the issue.
15
That, however, is a
dilemma for another day – if it arises at all.
[24] I have already
adverted to the absence of any evidence before me regarding the
relevant content of Guernsey law. I am not in
a position, therefore,
to determine whether prescription in Guernsey is classified as a
matter of procedure or substance and, if
it is substantive, whether
the claim contemplated in the negligence part of the amendment has
prescribed under Guernsey law.
[25] Mr Oosthuizen, who
appeared for the defendant, submitted that I need not decide whether
South African or Guernsey law governs
the question of prescription in
this case. He argued that it is for the party relying on foreign law
to plead it and prove it,
and that it was therefore incumbent upon
the plaintiffs to raise the applicable foreign law principles in an
affidavit in support
of the application for leave to amend. What it
amounts to is that the plaintiffs should have anticipated the defence
of prescription
and provided proof that the claims had
not
prescribed
under
Guernsey law. I cannot accept this submission. It is well established
in our law that it is for the party relying on prescription
to allege
and prove prescription.
16
There was therefore no
onus resting on the plaintiffs to raise and deal with the issue of
prescription in their application for
leave to amend.
[26] I am therefore faced
with the situation where it is possible that Guernsey law governs the
issue of prescription in this case,
and that the claims sought to be
introduced in terms of the negligence part of the amendment might be
alive and enforceable under
Guernsey law.
17
In these circumstances I
consider that it would be wrong for me to close the doors of the
court on the plaintiffs by disallowing
the amendment. As Van Heerden
JA pointed out in
Price
-
18
‘
Considerations
of international uniformity of decisions suggest that claims which
are alive and enforceable in terms of the law
of the country under
which such claims arose should as a general rule also be enforceable
in South Africa.’
[27] Furthermore, it
seems to me that the cases show that the courts are slow to refuse
leave to amend on the grounds of prescription,
which should usually
be raised by way of a special plea
19
thereby allowing for the
possibility of a replication to the defence of prescription, and that
it is only appropriate to disallow
an amendment where the claim is
‘
known
to have prescribed’,
20
or, in other words, where
it is
beyond
dispute
that
the claim has prescribed.
21
[28] I therefore consider
that the objection based on the prescription point must fail and the
negligence part of the amendment
allowed.
The estoppel point
[29] In the original
particulars of claim plaintiffs alleged that notice of encashment had
been given to the defendant. Defendant
pleaded that the notice of
encashment did not comply with the requirements of the investment
contract. Plaintiffs seek to answer
this allegation in the waiver and
estoppel part of the amendment by pleading that, if it is found that
the notice of encashment
did not in fact comply with the requirements
of the investment contract, it is then averred that the defendant
waived its right
to rely on the notice requirements by virtue of the
circumstances pleaded in paragraphs 29A.1 to 29A.3 of the amendment,
and is
in any event estopped from doing so.
[30] In essence the
plaintiffs wish in their particulars of claim both to plead a waiver
of the notice requirements, and also an
estoppel barring the
defendant from relying on the notice requirements. The question is
whether it is permissible so to do.
[31] Mr Walters contended
that estoppel was not being used to found the plaintiffs’ cause
of action, but rather as a shield
against the anticipated defence of
non-compliance with the notice requirements of the investment
contract. Mr Oosthuizen argued
that this approach is unprecedented
and contrary to established authority. He referred to the case of
Mann v
Sydney Hunt Motors (Pty) Ltd
22
in which Diemont J
referred
23
to the well-known
dictum
of Sir Norman Birkett LJ
in
Combe
v Combe
24
that
‘…
the
plaintiff is using estoppel as a sword whereas it can only be used as
a shield,’
and
went on to hold that:
25
‘
An
estoppel pleaded by the plaintiff in his replication to meet
allegations raised in the plea is not the same thing as an estoppel
used in the declaration as an instrument of attack. In our law
estoppel remains a weapon of defence.’
[32] There are indeed
many cases which state that estoppel cannot found a cause of action,
and that it is a weapon of defence, not
one of offence.
26
Rabie gives the following
illustration of the application of this rule in the context of
pleading:
27
‘
This
means, as far as the question of pleading is concerned, that a
plaintiff cannot, in formulating a claim, allege – to
take a
simple illustration – that the defendant is estopped from
denying that X was his or her agent for the purchase of
certain goods
from the plaintiff and that the defendant is therefore liable for the
purchase price. What the plaintiff should do,
it is said, is to make
the positive allegation when setting out the claim that X was the
defendant’s duly authorised agent,
and then, if that allegation
is denied by the defendant, meet the denial in the replication by
pleading that the defendant is estopped
from denying X’s
authority. By pleading in such a way, it is said, estoppel is used as
a weapon of defence and not as an
instrument of attack.’
[34] It is worthy of note
that the view that estoppel cannot found a cause of action has been
much criticised.
28
Visser and Potgieter
29
consider that the law
ought to recognise that estoppel has substantive legal consequences.
A number of authors argue for recognition
of the notion that
ownership can be acquired through estoppel.
30
McLennan, in a review of
Visser and Potgieter’s work, writes that:
31
‘
This
branch of the law remains bedevilled, as the authors point out, by a
number of hoary myths. One of the worst – if not
the
worst
– is the notion that estoppel operates as a kind of fiction.
Where, for instance, estoppel succeeds in a vindicatory
action, the
only logical conclusion is that ownership actually passes. The
arguments advanced by the authors show convincingly
that the
alternative theory yields untenable and even ludicrous results.
Such
misconceptions are probably linked to the other anachronistic idea
that estoppel is purely a defence and never a cause of action
–
a “shield, not a sword”.
I
cannot for myself ever recall having heard one persuasive argument
why this should be so. Indeed, in at least one branch of the
law it
effectively acts as a cause of action. This is the situation of
ostensible authority of an agent.
If
the third party sets up the estoppel in his particulars of claim, he
will be met with an exception. The trick, as we all know,
is to
allege actual authority, and when this is denied by the principal in
his plea, to replicate estoppel. The problem is solved
by procedural
subterfuge.
“
Our
law should accept a more advanced view of the concept of estoppel,
namely as a remedy not merely giving limited recognition
to a
fiction, but as a way of turning a representation into actual fact as
far as the law is concerned” (at 35). I agree
entirely.’
(Emphasis added.)
[35] While the last word
may not yet have been spoken on the question of whether or not
estoppel is capable of founding a cause
of action, it is not
necessary for me to express a view in this regard. To my mind this
case can and should be decided in the light
of the well-established
principles governing the amendment of pleadings.
[36] It is recognised
that waiver and estoppel are frequently relied upon in the
alternative in litigation involving insurance contracts.
32
In the present case the
plaintiffs seek to rely in their particulars of claim on waiver and
estoppel,
based
on the same pleaded facts
.
Certain conduct is alleged, on the basis of which it is concluded
that the defendant both waived reliance on the notice requirements,
‘
and,
in any event, is estopped from so doing’
.
The waiver and the estoppel function as defences which negative the
defendant’s reliance on non-compliance with the notice
requirements, and in this manner serve to establish the cause of
action indirectly.
[37] It is clear that
there can be no objection to a plaintiff alleging in its particulars
of claim that a condition or requirement
in a contract, which would
otherwise be destructive of any right of action based on the
contract, has been
waived
by the defendant.
33
I can see no reason why,
in such a situation, estoppel cannot be pleaded in the alternative to
waiver – as was done in the
plaintiff’s declaration in
Norris v
Legal & General Assurance Society Ltd.
34
It seems to me that where
the same conduct is alleged to found both a waiver and/or an
estoppel, it would be highly artificial -
or ‘
procedural
subterfuge’
to
use the words of McLennan
-
to insist that the plaintiff refrain from referring to estoppel in
the particulars of claim and raise in in a replication instead.
[38] Even although the
plaintiffs’ pleading in the amendment may not be strictly
correct in the light of the received wisdom
that estoppel cannot
found a cause of action, I am reminded by the familiar
dictum
of Innes CJ in
Robinson
v Randfontein Estates Gold Mining Co Ltd
35
that,
‘
pleadings
are made for the Court and not the Court for pleadings.’
[39] I am also mindful of
the many cases in which it has been held that amendments ought to be
allowed in order to determine the
real issues between the parties so
that justice may be done, and ought only to be refused where an
amendment would cause prejudice
to the other party not remediable by
an order for costs.
36
I cannot think that the
defendant would be prejudiced by the pleading of waiver and estoppel
at once as alternatives in the particulars
of claim, rather than
holding over the estoppel to be raised in a replication. Indeed Mr
Oosthuizen did not contend that any such
prejudice would arise.
[40]
Furthermore, in
Cross
v Ferreira,
37
Van Winsen AJ (as he then
was) recognised
38
a possible departure from
the general rule that an amendment ought not to be allowed where it
would render the pleading excipiable,
in ‘
exceptional
cases where the balance of convenience or some other such reason
might render another course desirable.’
I
consider this to be just such a case.
[41] Accordingly, in my
view the objection based on the estoppel point must fail.
The particularity
point
[42] In paragraph 29A.1
of the notice of intention to amend the plaintiffs allege as follows:
‘
During
the period late 2007 and until early 2008, and thus both prior and
subsequent to 29 February 2008, and at all material times,
Old
Mutual, represented,
inter
alia
,
by
Marc Bradshaw, represented
,
expressly and by conduct, …’ (my emphasis)
[43] The defendant
objects to the use of the words
inter alia
on the basis that
they do not convey the identity of the persons alleged to have made
the representations with sufficient particularity
to enable the
defendant to plead thereto, as required by rule 18(4).
[44] Mr Oosthuizen
contended that the defendant needs to know the identity of the
alleged representors to enable it to take instructions,
to plead and
to come to trial prepared to meet the case against it. Mr Walters
countered that the defendant is not embarrassed
and is able to plead
to the amendment. He pointed out that the test, at this stage of the
proceedings, is whether the amendment
sought is so phrased that
the defendant can
reasonably and fairly be required to plead thereto,
39
and that the defendant
would later be entitled to request further particulars for purposes
of trial, in terms of rule 21.
[45] I not agree that the
defendant can reasonably and fairly be required to plead to the
amendment as presently worded. To my mind,
the amendment is vague in
regard to the identity of the persons alleged to have made the
representations, and the defendant could
not be expected to respond
thereto with anything other than a bald denial.
[46] It is not good
practice for parties to content themselves with vague allegations and
bald denials in pleadings, leaving it
to the stage of trial
preparation to cure these defects by means of requests for further
particulars. Apart from the fact that
this is contrary to the rules,
it is desirable that parties be informed as soon as possible in the
litigation of the case they
have to meet in order to promote
prospects for the early settlement of matters, rather than at the
eleventh hour before trial when
considerable expense has been
incurred.
[47] I am therefore of
the view that the objection based on the particularity point must be
upheld. Mr Walters indicated that, if
I were otherwise disposed to
grant leave to amend, he would be loath to sacrifice the entire
amendment by virtue only of the words
“
inter
alia”
in
paragraph 29A.1, and he requested me, in that event, to grant leave
to amend subject to the striking out of these words. In
Stuttaford
& Co Ltd v Scher
40
and
Heinze
v Friedrich
41
the Court grant leave to
file amendments in an altered form, as defined in the judgment. I
intend to follow a similar course by
acceding to Mr Walter’s
request.
Costs
[50] It remains only to
deal with the question of costs. In this regard, Mr Walters fairly
and rightly conceded that if any of the
defendant’s objections
were upheld, it would entitled to costs. I agree. Notwithstanding the
fact that only one of defendant’s
objections was upheld, none
of the objections advanced were frivolous or unreasonable. Defendant
was entitled to oppose the indulgence
sought by the plaintiffs and
its costs of opposition should therefore be borne by the plaintiffs.
Conclusion
[51] In the result I make
the following order:
1. The
applicants are granted leave to amend their particulars of claim in
accordance with their notice of intention to amend dated
21 February
2012, subject to the proviso that the words “
,inter
alia,
”
which appear in paragraph 29A.1 of the said notice, shall be deleted.
2. The
applicants are ordered to pay the respondent’s costs of
opposition on the scale as between party and party.
D M Davis
Acting
Judge of the High Court
1
2006
(5) SA 393
(SCA).
2
Para
[10].
3
Laurens
NO v Von H
ӧ
hne
1993 (2) SA 104
(W) at 116 H;
Laconian
Maritime Enterprises Ltd v Agromar Lineas Ltd
1986
(3) SA 509
(D) at 518 D.
4
P
ara
[12] – [14].
5
Price
supra
n 1
at para [14].
6
The
relevant part of section 1(1) reads as follows, ‘
Any court
may take judicial notice of the law of a foreign state … in
so far as such law can be ascertained readily and
with sufficient
certainty...’.
7
Textbooks
and materials on Guernsey law are not readily available in South
Africa. Guernsey is a self-governing British Crown
Dependency
.
It is a distinct legal jurisdiction with its own parliament, courts
and appellate structure. Guernsey common law represents
a fusion of
old Norman customary law, French and English law.
8
Sentrachem
Ltd v Prinsloo
1997 (2) SA 1
(A) at 15H.
9
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 842 F
10
See
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd
2004 (2) SA
622
(SCA) at 629 F - G
11
Supra
n 8 at 15J – 16C
12
Price
supra
n 1 at
para [10] and authorities cited at footnote 6.
13
Price
supra
n 1 at
para [16];
Kuhne & Nagel AG Zurich
v APA Distributors (Pty) Ltd
1981 (3)
SA 536
(W) at 538 D – F.
14
Supra
n
3 at 524 B.
15
This
would be the third stage in the
via
media
approach, referred in
Price
at para [26].
16
Gericke
v Sack
1978 (1) SA 821
(A)
17
My
research suggests to me that the period of prescription in Guernsey
law for civil claims, other than personal injury claims,
is six
years.
18
At
para [28].
19
Rand
Staple-Machine Leasing (Pty) Ltd v I.C.I. (SA) Ltd
1977 (3) SA
199
(W) at 202 F;
Union & SWA Insurance Co Ltd v Hoosein
1982
(2) SA 481
(W) at 482 G – H;
Cordier v Cordier
1984 (4)
SA 524
(C) at 535 G – I
20
Stroud
v Steel Engineering Co Ltd and another
1996 (4) SA 1139
(W) at
1142 D;
Grindrod (Pty) Ltd v Seaman
1998 (2) SA 347
(C) at
354 J – 355 A.
21
As
was the case in
Blaauwberg Meat Wholesalers CC
v Anglo Dutch Meats (Exports) Limited
2004
(3) SA 160
(SCA), where summons had been issued in the name of the
wrong creditor and had not interrupted prescription.
22
1958
(2) SA 102
(GW).
23
At
106 G – H.
24
1951
(2) KB 215
at p 224.
25
At
107 D
26
See
Union Government v National Bank of SA Ltd
1921 AD 121
at
128;
Pandor’s Trustee v Beatley & Co
1935 TPD 358
at 363 - 364,
Mann v Sydney Hunt Motors (Pty) Ltd supra
n 17
at 107;
Adriatic Insurance Co v O’Mant
1964 (3) SA 292
(SR) at 295 C;
Rosen v Barclays National Bank Limited
1984
(3) 974 (W) at 983 H – I;
De Klerk v Old Mutual Insurance
Co Ltd
1990 (3) SA 34
(E) at 41 B – J;
Sodo v Chairman
ANC, Umtata Region
[1998] 1 All SA 45 (Tk) 51.
27
P
J Rabie (updated by H Daniels) ‘Estoppel by Representation’,
9 Lawsa (2 ed) para 672; see too LTC Harms
Amler’s
Precedents of Pleadings
(6ed) p 166 regarding the pleading of
estoppel.
28
See
P J Visser and J M Potgieter
Estoppel: Cases and Materials
(1994); E Kahn
et al Contract and Mercantile Law: A Source Book
(1988) at p 308; M A Millner ‘
Totemic Law’
1958
SALJ
240.
29
Supra
n 28 at p vii and p 35.
30
See,
inter
alia,
HJO Van Heerden ‘
Estoppel: ’n Wyse van
Eiendomsverkryging?’
1970
THRHR
19
; J W Louw
‘
Estoppel en die Rei Vindicatio’
1975
THRHR
218
; S Van der Merwe and LF Van Huysteen ‘
A Perspective on
the Elements of Estoppel by Representation’
1988
TSAR
568
; P J Visser ‘
Estoppel en die Verkryging van Eiendomsreg
in Roerende Eiendom’
1994
THRHR
633.
31
J
S McLennan
1995
SALJ
730
at p 731.
32
M
F B Reinecke
et al
‘Insurance’, 12 Lawsa (First
Reissue) para 460
33
See
Adriatic Insurance Co v O’Mant supra
n 26 at 295 G - H
34
1962
(4) SA 743
(C) at 744 E - F
35
1925
AD 173
at 198
36
See
Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd and
another
1967 (3) SA 632
(D) and cases referred to therein;
37
1950
(3) SA 443
(C)
38
At
450 E - F
39
Trope
v South African Reserve Bank and another and two other cases
1992
(3) SA 208
(T) at 210 G – H.
40
1931
CPD 341
41
1927
SWA 100