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Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

Case No: 1878/09

Heard: 26/11/2009

Delivered: 05/02/2010

In the matter between:

PARKHOME MANUFACTURING
(PROPRIETARY) LIMITED 1^ST Applicant

SOUTHEY HOLDINGS (PROPRIETARY) LIMITED 2^ND Applicant

and

CAPSTONE 101 CC t/a PYRAMID PROJECTS
AND DEVELOPMENTS 1^ST Respondent

ROYALSECHABA FOOD SERVICES
(PROPRIETARY) LIMITED 2^ND Respondent

SISHEN IRON ORE COMPANY (PTY) LTD 3^RD Respondent

JUDGMENT

MJALI AJ:

[1] The applicants brought this application on an urgent basis by way of notice of motion (dated 27 October 2009) on 6 November 2009 in terms of which they sought a rule nisi calling upon the first and second respondents to show cause, if any, on the 27^th day of November 2009 at 10:00 or so soon thereafter as counsel may be heard, why, an order in the following terms should not be granted:

1. Declaring that the agreements in terms of which the applicants sold and delivered to the first respondent 30 park-home sleeper units is cancelled.

2. Declaring that the applicants are entitled to vindicate 30 park-home sleeper units reflected on the schedule attached to the notice of motion as annexure “A”;

3. Directing the first and second respondents to forthwith permit the applicants to uplift and remove from the third respondents’ property at Sishen Mine South the 30 park-home sleeper units listed in the schedule attached to the notice of motion as annexure “A”.

4. In the event that the first and second respondents failure or refusal to permit the applicants to uplift and remove the aforesaid park-home units the sheriff for Postmasburg is authorised to do all things necessary in order to permit applicants to uplift and remove the 30 park-home sleeper units listed in the schedule attached as annexure “A”.

5. That the 2^nd respondent, together with any other respondent opposing this application, be ordered to pay the applicants’ costs of the application.

6. Further or alternative relief.

[2] The first applicant is Parkhome Manufacturing (Proprietary) Limited, a company duly registered and incorporated with limited liability in terms of the Companies Act No. 61 of 1973, with its place of business at unit 1, 31 Gillits Road Industrial Park, Pinetown,Kwazulu-Natal.

[3] The second applicant is Southey Holdings (Proprietary) Limited, a company duly registered and incorporated with limited liability in terms of the Companies Act No. 61 of 1973 with its place of business at 24a Island Circle, Riverhorse Valley Business Estate, Riverhorse Valley East, Durban. In terms of an intra group rearrangement the second applicant acquired the business and assets of the first applicant with effect from 1 July 2009.

[4] The first respondent is Capstone 1001 CC, a close corporation duly registered and incorporated with limited liability in terms of the Close Corporations Act, 1984, t/a Pyramid Projects and Developments with its principal place of business at 116 Porter Avenue, Daleview, Brakpan, Gauteng.

[5] The second respondent is Royalsechaba Food Services (Proprietary) Limited, a company duly registered and incorporated with limited liability in terms of the company laws of the Republic of South Africa, with its principal place of business at Crown Court, 26 Charles de Gaulle Cresent, Highveld Extension 12, Centurion, Gauteng.

[6] The third respondent is Sishen Iron Ore Company, a firm conducting a mining business in the district of Postmasburg, Northern Cape.

[7] The first applicant manufactured and sold 30 park-home units (the units) to the first respondent and reserved ownership thereof. The first respondent in turn sold the units to the second respondent who onwards sold same to the third respondent. The first respondent failed to pay the full purchase price to the first applicant. The applicants contend that they remained owners of the 30 park-home units on the strength of the contractual reservation of ownership pending the full payment of the purchase price. The application is only opposed by the second and third respondents who will henceforth be referred to as respondents.

[8] At the outset Mr Marnerwick, counsel for the applicants, submitted that for purposes of this application the applicants cannot dispute that the second respondent is no longer in possession of the units. In addition to the defences of legitimate disposal and estoppel the second and third respondents raised the following preliminary points:

1. That the application should be dismissed for lack of urgency;

2. In the light of the concession made by the applicants that the units are no longer in possession of the second respondent no order can be granted against it;

1. That the notice of motion is defective first, because annexure “A” mentioned under prayer 1(B) was not attached to the notice of motion and, secondly, because no prayer is sought against the third respondent. The application is dead and cannot be revived by the referral of the matter to oral evidence, it was contended.

[9] It is trite that a litigant who relies on urgency in order to justify a departure from the strict provisions of the Rules is required in terms of Rule 6(12)(b) to “set forth explicitly the circumstances which he avers render the matter urgent and the reasons he claims that he could not be afforded substantial redress at a hearing in due course”.

[10] It is also true that there are numerous examples in our case law where applications have been dismissed because a party has failed to comply with these provisions. The only reason advanced on behalf of the applicants for the hearing of this matter urgently was that the units are currently in use at Sishen Mine and are subject to the risk of fire and other damage. In contrast to this averment the applicants upon noticing serious shortcomings in their pleadings applied to have the matter referred to trial and that the notice of motion to stand as a simple summons. The applicants applied further for an order that they deliver a declaration because this is a damages action which cannot be done by means of a simple summons.

[11] Both counsel for the respondents contended that the fact that the units were in use at Sishen Mine was known to the applicants long before the institution of this application. In substantiation of their contention they referred to a letter written by the applicants’ attorneys dated 16 October 2009. Paragraph 2 thereof states; “we are writing to you in regard to the contract between our client and Capstone for the supply of modular units and which were earmarked for use by Royalsechaba foods at the Sishen South Mine of Kumba Iron Ore”.

Further, prior to the date of hearing the applicants received answering affidavits which stated clearly that the second respondent was not in possession of the units. I am inclined to agree with counsel for the respondents that urgency has not been established in this matter and if anything, it is self induced. I accordingly find no reason that warrant the hearing of this application as a matter of urgency.

[12] The second point in limine can be disposed of quickly. The claim against the second respondent is premised on the impression that it is in possession of the 30 park-home units. However such units are in use at the third respondent’s place where the second respondent has a contract to supply catering and accommodation for the third respondent. In their replying affidavit the applicants stated: “It now appears from the answering affidavits that the second respondent is no longer in possession of the units. If that is true, the applicants would obviously not be entitled to a vindicatory order against that respondent but they would be entitled to sue for damages which they intend to do.” In the light of this averment in their replying affidavit as well the concession made by counsel for the applicants that the second respondent is no longer in possession of the units, the basis on which that claim was premised has fallen away. As such, prayer 1. 3 (above), in my view, cannot succeed.

[13] I turn now to the issue of the alleged defective notice of motion. The attack on the notice of motion is that annexure “A” mentioned in prayer 1.2 (above) was not attached to the notice of motion and that no order was sought against the third respondent. For those reasons counsel for the respondents submitted that the application is dead and cannot be revived by the referral of the matter to oral evidence.

[14] In Trope v South African Reserve Bank and another 1992 (3) SA 208 (T) at 210G–211H McCreath J remarked as follows:

“It is, of course, a basic principle that particulars of claim should be so phrased that a defendant may reasonably and fairly be required to plead thereto. This must be seen against the background of the further requirement that the object of pleadings is to enable each side to come to trial prepared to meet the case of the other and not be taken by surprise. Pleadings must therefore be lucid and logical and in an intelligible form; the cause of action or defence must appear clearly from the factual allegations made (Harms Civil Procedure in the Supreme Court at 263–4) at 264 the learned author suggests that, as a general proposition, it may be assumed that, since the abolition of further particulars, and the fact that non-compliance with the provisions of Rule 18 now (in terms of Rule 18(12)) amounts to an irregular step, a greater degree of particularity of pleadings is required. No doubt, the absence of the opportunity to clarify an ambiguity or cure an apparent inconsistency, by way of further particulars, may encourage greater particularity in the actual pleading. The ultimate test, however, must in my view still be whether the pleading complies with the general rule enunciated in Rule 18(4) and the principles laid down in our existing case law.”

[15] In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C–H the court dealing with the purpose of pleadings said the following:

“At the outset it need hardly be stressed that:

‘The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties to an action the issues upon which reliance is to be placed.’ (Durbach v Fairway Hotel Limited 1949 (3) SA 1081 (SR) at 1082).

This fundamental principle is similarly stressed in Odgers’ Principles of Pleading and Practice in Civil Actions in The High Court of Justice 22nd ed at 113:

“The object of pleading is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision.’

The degree of precision obviously depends on the circumstances of each case. More is required when claims are based upon the provisions of a detailed and complex contract, in which numerous clauses confer the right to additional payment in differing circumstances – a contract, moreover, in which such payments are to be determined, calculated and claimed in different ways depending on which clause is relied upon. In addition, as already pointed out, the contractor may choose to base the cause of action on some common law ground (breach of contract, enrichment or delict) quite unrelated to any additional payments for which the contract provides. Particularly in this context, it goes without saying that the pleading ought not to be positively misleading by referring explicitly to certain clauses of the contract as identifying the cause of action when another is intended or will at some later stage – in this case at the last possible moment – be relied upon. As it was put by Milne J in Kali v Incorporated General Insurances Ltd 1976 (2) SA 179 (D) at 182A:

‘. . . a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another’.”

[16] In this matter not only did the applicants fail to seek relief against the third respondent, they categorically stated in their founding affidavit that the third respondent is merely cited as an interested party and no prayer is sought against it.

[17] Mr Marnerwick submitted that the mere fact that there was no prayer against the third respondent is of no consequence as in the notice of motion (paragraph 2.6 above) the applicants pray for further and alternative relief. The considerations that determine whether such a prayer can be invoked for the granting of an order or prayer other than that set out in a summons or notice of motion were set out by Berman J in Luwala and others v Port Nolloth Municipality 1991 (3) SA 98 (C) at 112D–E. A prayer for alternative relief does not entitle a party to relief substantially different from that specifically claimed unless the basis for it has been fully canvassed.

Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 1 SA 265 (C) at 268; City of Cape Town v Mgoqi 2006 4 SA 355 (C) para 12.

[18] The notice of motion and the supporting averments were not always very clear and ignored some basic rules relating to the conduct of litigation. To grant a prayer against the third respondent on the strength of a prayer for further and/or alternative relief contained in the notice of motion would amount to the granting of relief substantially different to that which had been claimed originally. The application is fatally flawed and requires a fresh start, if so advised.

[19] I turn now to the issue of costs. Counsel for the respondents have applied that the cost order be awarded against the applicants and that such costs incorporate the wasted costs of 6 November 2009. The respondents were unnecessarily brought before court to answer to claims which the applicants later conceded to be substantially unfounded. I am satisfied that the applicants should bear the costs of this application and that such costs include the costs occasioned by the postponement on 6 November 2009 when the self-created urgent application was postponed.

[20] In the result, I make the following order:

The application is dismissed with costs. Such cost to include the costs occasioned by the postponement on 06 November 2009.

_________________

GNZ MJALI

ACTING JUDGE

NORTHERN CAPE HIGH COURT.

On behalf of the Applicants	Adv. Marnerwick SC
Instructed by	Haarhoffs
On behalf of the First Respondent	No appearance
On behalf of the Second Respondent	Adv. De Jager
Instructed by	Duncan & Rothman
On behalf of the Third Respondent	Adv. Basslian
Instructed by	Duncan & Rothman

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