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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

            PARTIES:

 SOUTHERN STAR ORGANISATION (PTY) LTD PLAINTIFF

And

THORNBURN SECURITY SOLUTIONS (PTY) LTD DEFENDANT

• Case Number:  1027/04          

• High Court: SOUTH EASTERN CAPE LOCAL DIVISION

Date Heard: 2 August 2007

Date Delivered: 15 November 2007

JUDGE(S):    DAMBUZA J

LEGAL REPRESENTATIVES-      

Appearances:

• Plaintiff(s): Adv Eksteen SC, Adv Nepgen

• Defendant(s):     Adv Pienaar                

Instructing attorneys:

• Plaintiff(s):   De Villiers & Partners                    

• Defendant(s):  Joubert Galpin & Searle                                     

CASE INFORMATION –

• Nature of proceedings : Application for amendment

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

CASE NO: 1027/04

In the matter between:

SOUTHERN STAR ORGANISATION (PTY) LTD PLAINTIFF

and

THORNBURN SECURITY SOLUTIONS (PTY) LTD DEFENDANT

JUDGMENT

(IN AN APPLICATION TO AMEND THE PARTICULARS OF CLAIM)

DAMBUZA J:

1. This is an opposed application for amendment of plaintiff’s particulars of claim. In the proposed amendment, the plaintiff seeks to import a tacit term into a written agreement entered into between the parties on 22 September 2002.

2. The plaintiff conducts business as a public carrier, transporting new motor vehicles for, inter alia, Delta Motor Corporation Ltd (Delta), a motor vehicle manufacturer conducting business in Port Elizabeth. As a matter of practice the plaintiff would accept delivery of such motor vehicles from Delta and store them at its premises at Markman Township, Port Elizabeth.

3. In terms of the written agreement, the defendant undertook to provide security services and security personnel to the plaintiff at plaintiff’s premises in Markman, where the vehicles were stored.

4. On 21 March 2003, whilst the defendant’s security personnel were on watch, four Isuzu double cab TDL vehicles belonging to Delta and awaiting carriage at plaintiff’s premises were stolen. Consequently, plaintiff paid to Delta an amount of R837 625.41 being the cost of the stolen vehicles. The plaintiff now claims this amount from the defendant.

5. In the summons the plaintiff states that:

“On or about 20 September 2002 and in Port Elizabeth the Plaintiff entered into a written agreement with the Defendant in terms of which:

4.1 the Defendant undertook to provide security services and security personnel for the sole purpose of reducing the risk of loss or damage by fire, burglary, theft, terrorism, vandalism, civil commotion or riot;

4.2 the Plaintiff undertook to hold the Defendant liable for loss or damage sustained, from whatever cause arising, only in the event of such loss or damage being sustained as a result of the willful act or willful omission to act, on the part of the Defendant or its personnel whilst they were engaged in the course and scope of their employment pursuant to the contract;

4.3 the Defendant will only be liable to the Plaintiff in circumstances referred to in paragraph 4.2 above;

4.4 . . . . . . . . . .

5. On or about 21 March 2003 four Isuzu KB300 double cab TDL vehicles entrusted to the Plaintiff by Delta for purposes of carriage were stolen from the Plaintiff’s premises at Markman Township, Port Elizabeth, within the area of jurisdiction of this Court;

6. The said theft occurred as a result of a willful act, alternatively, a willful omission to act on the parts of employees of the Defendant more in particular that:

6.1 . . . . . . . . . .

8. 8.1 In consequence of the said theft the Plaintiff became liable to

Delta in the sum of R837 625,41 being the cost of the said

vehicles;

8.2 The Plaintiff has paid the said amount of R837 625,41 to Delta.

9. In the circumstances:

9.1 The Plaintiff has suffered damages in the sum of R837 625,41.

9.2 The Defendant is liable to the Plaintiff in the amount of R837 625,41,

which amount the Defendant has failed or refused to pay, demand notwithstanding.”

6. The defendant pleads thereto that:

“4. Ad para 8 thereof:

4.1 The allegations in this paragraph are admitted.

4.2 The defendant however further pleads that in terms of the provisions of clause 17 of the service agreement between the parties (annexure “SS01”) the defendant inter alia was not to incur liability for the assets of a third party, in the present instance Delta, and the plaintiff indemnified and held the defendant free from liability against all and any claims of any nature whatsoever by a third party, in the present instance Delta.

4.3 In the premises the plaintiff is precluded by the provisions of clause 17 of the service agreement to claim against the defendant and the plaintiff therefore has no claim against the defendant.”

7. Subsequent to the filing of the plea the plaintiff sought to amend its particulars of claim by adding the following to paragraph 4 thereof, that:

“4(bis).1 In terms of the provisions of Clause 3.1 of the written agreement the parties agreed on the specific services to be performed by Thornburn’s security personnel, which are recorded in Annexure “A” to the contract.

4(bis).2 The security services agreed upon, as set out in Annexure “A” to Annexure “SSO1” to the Particulars of Claim related predominantly to security services in respect of motor vehicles being the property of Delta Motor Corporation or other motor manufacturers which are held by and fall under the control of the Plaintiff in the course of the Plaintiff’s business activities.

4(bis).3 It was a tacit term of the said agreement that such motor vehicles being the property of Delta Motor Corporation or other manufactures which are held by or fall under the control of the Plaintiff in the ordinary conduct of its business operations would be deemed to be assets of the Plaintiff for the purposes of the security services to be rendered by the Defendant.”

8. The defendant objects to the proposed amendment on three grounds:

9. THAT THE PROPOSED AMENDMENT RENDERS THE PARTICULARS OF CLAIM EXCIPIABLE:

The defendant contends that the particulars of claim, read with the proposed amendment, do not set out a cause of action, lack averments which are necessary to sustain a cause of action and are vague and embarrassing. Mr Pienaar submitted, on behalf of the defendant, that the following words would have to be added to the proposed amendment to cure the defect in the particulars of claim:

“and the defendant would accordingly be liable too for loss or damage, as set out above, to motor vehicles being the property of Delta Motor Corporation or other manufacturers”.

10. Mr Eksteen, who appeared on behalf of the plaintiff, submitted that if the tacit term contended for did form part of the particulars of claim, as the plaintiff contends, then it follows, as a matter of interpretation of the agreement, that the defendant would be liable for loss of the vehicles in question, subject to limitations contained in the agreement.

11. It has been held that, while a pleader’s first duty is to allege facts upon which he relies, his second duty is to set out the conclusions of law which, he claims, follow from the pleaded facts. The facts set out must constitute the premises for the relief sought, i.e. they must be such that the relief prayed for flows from them, and can be properly granted. Otherwise the summons will be excipiable as disclosing no cause of action. Prinsloo v Woolbrokers Federation Ltd 1955-(2) SA 298 (N) at 299 E; Trope v South African Reserve Bank & Another 1992 (3) SA 208 (T) at 210 H.

12. The effect of the proposed amendment, in my view, would be to extend the application of the contractual obligations already pleaded in the original particulars of claim, and to which the defendant has already pleaded, to Delta motor vehicles which were in plaintiff’s custody at the relevant time. I do not agree that such an amendment would render the particulars of claim excipiable. On a reading of the amended particulars of claim, the plaintiff will have pleaded that, in breach of its obligations under the agreement, the defendant failed to provide security services and/or personnel in respect of the Delta motor vehicles which were stolen, thereby causing loss to the plaintiff. It would therefore follow, as submitted by Mr Eksteen, that liability would flow from such breach of the terms of the agreement.

13. The plaintiff does plead, in paragraph 4.2 of the particulars of claim that it undertook to hold the defendant liable for loss or damage sustained as a result of a willful act or omission to act on the part of the defendant or its personnel.

14. It also bears mention, in my view, that, in order to succeed in its exception, the defendant would have to persuade the court that upon every interpretation which the amended summons can reasonably bear, it discloses no cause of action. First National Bank of South Africa Ltd v Perry NO [2001] 3 All SA 331 (A). An exception that a pleading is vague and embarrassing will generally not be allowed unless the excipiant will be seriously prejudiced if the offending allegations are not expunged. Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 C at 298 A. It has not been submitted that the defendant stands to suffer any prejudice in this case and I find no basis for such a conclusion. Consequently, I am not persuaded that an exception would succeed in the circumstances.

15. THAT THE TACIT TERM IS AT VARIANCE WITH, CONFLICTS WITH, IS IRRECONCILEABLE WITH, IS INCOSISTENT WITH OR CONTRADICTORY TO THE PLAINTIFF’S PARTICULARS OF CLAIM AND AGREEMENT ANNEXURE “A”, AND ALSO SUPPLEMENTS AND ADDS TO THE PARTICULARS OF CLAIM AND AGREEMENT

In this regard the defendant contends that the proposed amendment is at variance with the express terms of the agreement, particularly as expressed in paragraphs 3.2, 3.3, 5 and 8 of the existing particulars of claim and with clause 17 of the agreement. Accordingly, so the argument goes, the tacit term is impermissible at law.

16. Paragraph 3 of the particulars of claim states that:

“3.1 The Plaintiff has conducted business as a public carrier transporting new vehicles;

3.2 The Plaintiff carried motor vehicles for Delta Motor Corporation Limited (hereinafter referred to as “Delta”) from Port Elizabeth to, inter alia, Gauteng;

3.3 The Plaintiff accepted delivery of such motor vehicles from Delta for purpose of carriage at its premises at Markman Township, Port Elizabeth.”

(Paragraphs 5 and 8 are set out in paragraph 5 of this judgment)

17. Clause 17.1 provides that:

“It is hereby recorded that Thornburn shall render to the Client services in respect of only the premises which are occupied by the Client and the assets of the Client, and are not extended to any portion of the premises occupied by third parties nor to assets of third parties unless specifically agreed to in writing between the parties to this agreement.”

18. In my view, on a correct interpretation of the agreement, the tacit term neither varies from nor conflicts with paragraphs 3.2 and 3.3 of the particulars of claim. It also does not add to or supplement the agreement. The proposed tacit term merely explains what the parties to the agreement intended in it. Mr Eksteen correctly submitted that even if it were to be argued that the agreement is ambiguous (insofar as the annexure thereto refers to motor vehicles which are the property of Delta whereas clause 17 thereof seems to exclude any property not owned by the applicant), such ambiguity cannot be determined at exception stage.

19. Mr Pienaar submitted that it is improbable that the defendant would have agreed to incur the extra liability contended for by the plaintiff in the proposed amendment. However, the contents of the written agreement reveal that the defendant undertook to provide security services in respect of the Delta vehicles which came into, were on, and / or which left the plaintiff’s premises at Markman.

20. The agreement comprises of the main portion together with an annexure (referred to in the agreement as Annexure “A”).

21. The relevant portions of the main agreement state that:

“3.1 The Parties hereto agree to the services to be performed by Thornburn’s Security personnel, which will be recorded in writing and hereby annexed as Annexure A, and it may be subject to variation from time to time. (My emphasis). It will not be obligatory for Thornburn to perform any security related duties which have not been recorded in writing and annexed hereto.

22. The first or cover page of Annexure A states that:

“The aim of the security of SOUTERHN STAR is to provide an effective access control function coupled to (sic) a tailor made image focusing on the safety and security of the premises and visitors of SOUTHERN STAR CAR STORAGE”. (My emphasis).

23. Module 1 of Annexure A provides that:

“ACCESS CONTROL

1.1 VISITORS/DELIVERY/COLLECT/CONTRACTORS (VEHICLES)

1.1.1 (i) Incoming

- Declare unauthorized items.

. . . . . . . . . .

(ii) outgoing

- Declare any Southern Star or Delta items to be taken out.

. . . . . . . . . .

MODULE 2:

LOSS PREVENTION

2.2 CARRIERS

1. LOCAL CARRIERS

1.1 Arrival (Procedure implemented 21/05/2002)

1.1.1 When the carrier arrives at the main gate, the Security is to book the carrier in the local carrier sheet (Appendix A)

1.1.2 Security is to ensure that the information required on the Carrier Sheet-In Column is accurately completed by verification of his and the driver’s signature.

1.2 DEPARTURES:

1.2.1 All local carriers ferrying vehicles between Southern Star Car Storage, Delta Kempston and Struandale are to be recorded on the Local Carrier Sheet (Appendix A).

1.2.2 Guards are to ensure that all the details as stipulated on the register is completed correctly. (sic).

1.2.3 The Local Carrier Sheets on completion are to be filed at the Security Guardhouse and handed to Mr. Crossman at every month end.

1.2.4 Vehicles are at times returned to Delta for small repairs.

1.2.5 It is therefore important for Security to indicate any vehicle returns (quantity) on the Local Carrier Sheet – Out. (sic);

1.2.6 All vehicles that are to be returned to any Delta depot MUST be accompanied by a gate pass (Appendix B) . . . . .

2.5 NORMAL CHECKING PROCEDURES (IN AND OUT)

1.1 Company Vehicles

1.1.1 . . . . . . . . . .

1.2 New vehicles

2.2.1 All new vehicles entering the site, via the carriers are receipt and checked by the Southern Star checkers on the Tarmac. The only time when Thornburn Security Solutions handles incoming Delta vehicles (New) is when such vehicles are parked inside the stock yard. Such vehicles will then be checked by the Thornburn guard at the “Wendy Hut” before entering the yard (Stock).”

24. Contrary to Mr Pienaar’s submission, Annexure “A” to the agreement cannot be read separately from the agreement. The annexure is part of the agreement. It sets out details of the security services to be performed by the defendant. I am in agreement with Mr Eksteen’s submission that without the annexure, the agreement would be meaningless.

25. In most clauses in the annexure wherein reference is made to the property in respect of which security services were to be rendered under the agreement, the plaintiff’s motor vehicles are mentioned together or interchangeably with Delta motor vehicles. My view is that the agreement does provide for security services to be rendered and security personnel to be provided in respect of Delta vehicles which, as anticipated, would be in plaintiff’s custody. I am satisfied that the tacit term which the plaintiff seeks to import into the summons is what the parties, of necessity must have intended when concluding the agreement. Alfred McAlpine and Son (Pty) (Ltd) v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 343.

26. THAT THE TACIT TERM CONTRAVENES THE NON-VARIATION AND NON-SUPPLEMENTATION CLAUSE 21.1

Clause 21.1 of the agreement states that:

“The terms hereof shall constitute the whole agreement between the parties hereto, and no variation, addition or consensual cancellation thereof shall become effective unless and until reduced to writing and signed by the parties hereto.”

27. It seems to me that this contention is, in essence, the same as the second objection. As I have said, my view is that clauses 17.1 and 21.1 of the agreement limit the obligations of the parties under the agreement, to those specified under the agreement, including Annexure A thereto.

28. The general approach applicable to amendments is that an application for amendment should be refused if it is clear that the granting thereof will result in serious prejudice to the other party. A court hearing an application for an amendment has discretion whether to grant it or not. Such discretion must be exercised judicially. An important reason for allowing an amendment is to obtain a proper ventilation of the dispute between the parties to determine the real issues between them, so that justice may be done. Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd & Another 1967 (3) SA 632 (D) at 638A and 640G-641C.

“the practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words 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”. Moolman v Estate Moolman and Another 1927 CPD 27 at 29.

29. I have already found that the defendant stands to suffer no prejudice if the amendment is allowed. I am persuaded that justice will be served, in this case, by proper determination of the issues between the parties at the trial. Consequently, the application has to succeed.

30. I further find no reason why the costs should not follow the cause.

The following order shall therefore issue:

1. That the particulars of claim are amended as follows:

1.1 By the renumbering of the existing paragraph 4(bis) to paragraph 4(ter);

1.2 By the insertion after the existing paragraph 4 and prior to paragraph 4(ter) of a new paragraph 4(bis) to read as follows:

1.2.1 In terms of the provisions of Clause 3.1 of the written agreement the parties agreed on the specific services to be performed by Thornburn’s security personnel, which are recorded in Annexure “A” to the contract.

1.2.2 The security services agreed upon, as set out in Annexure “A” to Annexure “SSO1” to the Particulars of Claim related predominantly to security services in respect of motor vehicles being the property of Delta Motor Corporation or other motor manufacturers which are held by and fall under the control of the Plaintiff in the course of the Plaintiff’s business activities.

1.2.3 It was a tacit term of the said agreement that such motor vehicles being the property of Delta Motor Corporation or other manufactures which are held by or fall under the control of the Plaintiff in the ordinary conduct of its business operations would be deemed to be assets of the Plaintiff for the purposes of the security services to be rendered by the Defendant.

2. The defendant shall pay the costs of the application.

_________________________

N DAMBUZA

JUDGE OF THE HIGH COURT

Applicant’s Counsel: Adv Eksteen SC

Adv Nepgen

Plaintiff’s Attorneys: De Villiers & Partners

32 Erasmus Drive

PORT ELIZABETH

Respondents’ Counsel: Adv Pienaar

Defendant’s Attorneys: Joubert Galpin & Searle

173 Cape Road

Mill Park

PORT ELIZABETH

Heard on: 2 August 2007

Delivered on: 15 November 2007

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