South Africa: North Gauteng High Court, Pretoria

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)

CASE NO:30244/2011

In the matter between:

ANNA ELIZABETH SCOTT......................................................................................................................................................................................................APPLICANT/DEFENDANT

and

FIRSTRAND BANK LTD I/a NISSAN FINANCE.....................................................................................................................................................................RESPONDENT/PLAINTIFF

JUDGMENT

KUBUSHI, |

[1] I shall refer to the parties in this application as they are referred to in the main pleadings.

[2] In this matter the defendant has raised an exception to the amended particulars of claim of the plaintiff on the basis that the said particulars of claim are vague and embarrassing, alternatively that they lack averments necessary to make out a complete cause of action.

[3] The plaintiff is opposing the exception and has elected not to remedy and/or remove the cause of complaint.

[4] It appears from the papers that the plaintiff sought and was granted leave by this court to amend his initial particulars of claim. The defendant had in that application noted an objection to the amendment on the same ground as raised in this application. It is against these amended particulars of claim that the exception is directed.

[5] It became an issue at the hearing of the exception whether or not this court is bound by the order granted in the amendment application since the ground of objection raised by the defendant in that application is the same as that raised in the exception before me. The ground of objection in the amendment application was that if the amendment is allowed it would render the particulars of claim excepiable. The defendant has raised the same ground of objection in the exception, namely, that the amended particulars of claim are vague and embarrassing and renders the pleading excepiable. The court in the amendment application allowed the amendment on the basis that such amendment will not render the particulars of claim excepiable.

[6] The order granted in the amendment application is an interlocutory order. I could not find any authority where the issue of the variation of an interlocutory order was decided; nor could counsel provide me with any authority to that effect. The only judgment I found where the Supreme Court of Appeal was enjoined to consider whether or not the court below had the jurisdiction to vary an interlocutory order granted by another judge in the same court was in Cert Thomas Van der Merwe v Simon Molefe Pitje (232/11) [2012] ZASCA 50 (30 March 2012). However, the question was eventually found not necessary for consideration.

[7] I have to agree with both counsel that the principle and ground of objection raised in the present application is the same as was raised in the amendment application. My view is that, even though the test applied in the two applications differs, the court has already pronounced itself on the ground of objection and as such this court is bound by that order. This court is not competent to vary in any way an order granted by another court unless there is a formal application for its variation. No such application is before this court.

[8] Even if I am wrong to conclude that this court is bound by the order granted in the amendment application, in my opinion, the exception still stands to be dismissed.

[9] The gravamen of the defendant’s exception is that in terms of this amendment it is not clear whether Nissan is a trade name of FirstRand or a division of Wesbank and as such the citation is confusing, contradictory, difficult to understand, unintelligible and incomprehensible. The contention by the defendant’s counsel is that paragraphs 1.1 and 1.2 of the amended particulars of claim cannot stand together as they are mutually destructive. According to counsel from the reading of the two paragraphs it is not clear who the plaintiff is and as such the defendant is not provided with sufficient particularity to enable her to plead thereto. Consequently the defendant seeks an order upholding the exception setting the amended particulars of claim aside.

[10] Under our law no juristic person is capable of being divided into a number of separate juristic personalities. Thus where reference is made to a business which is conducted under a trading name and the words ‘Limited’ or ‘(Proprietary) Limited* are not affixed thereto, no grounds exists for drawing an inference that the business as an entity enjoys corporate personality. If in addition thereto it is said that the business is a division of a named company, registered according to the laws of the Republic, there is only one possible further inference and that is that the incorporated company trades through the medium of the business under that particular trading name. See Two Sixty Four Investments (Pty) Ltd v Trust Banh 1993 (3) SA 384 (WLD) at 385G - H.

[11] The defendant’s counsel is in my view wrong to want to infer that because it is alleged that Nissan Finance is a division of Wesbank therefore Wesbank can also be considered to be a holding company. This is dearly a wrong inference. It is apparent from the particulars of claim and from the instalment sale agreement (the agreement) attached to the particulars of claim that Wesbank is but a division of FirstRand Bank. The words ‘Limited’ or ‘(Proprietory) Limited” are not affixed to Wesbank. FirstRand bank, to which the words ‘Limited* are affixed is the holding company. Consequently there can be no other interpretation, which according to defendant is confusing, other than the one I have given.

[12] An incorporated company may trade through the medium of a number of businesses each with a separate trade name. None of them will thereby acquire separate corporate personality. See the judgments in Two Sixty Four Investments (Pty) Ltd v Trust Bonk above at 385I and Mega Flex, "n Divisie van Sentrachem Bph & /7 Ander v White River Motor Trading (Edms) Bpk [1996] 1 All SA 161 (T) at 163f - h.

[13] In this instance, in its amended particulars of claim the plaintiff is cited as FirstRand Bank Limited t/a Wesbank and Nissan. It is further stated as follows in paragraph 1.2 of the amended particulars of claim:

“FirstRand Bant? trades as Wesbanfe (a division of FirstRand Bank Limited). Wesbank in turn trades as Nissan Finance (a division of Wesbank).”

[14] It is clear that Wesbank and Nissan are trading names for FirstRand Bank Limited. The use of the word “division” imparts that Wesbank is a division of FirstRand Bank Limited which conducts business under that trade name whilst wholly owned by FirstRand Bank Limited. On the other hand “division” also denotes that Nissan Finance is a division of Wesbank. Wesbank and Nissan Finance as such do not enjoy corporate personality separate from FirstRand Bank Limited. The three are actually one and the same company with FirstRand Bank being the one enjoying corporate identity.. FirstRand Bank is therefore correctly cited as the plaintiff. Both counsel are agreed that only the holding company need be cited in litigation. There is nothing, in my view, that would bar FirstRand from trading as Nissan Finance even though Nissan is said to be a division of Wesbank. As it has been said in the judgments I referred to above, an incorporated company may trade through the medium of a number of businesses each with a separate trade name. The particulars of claim correspond with the instalment sale agreement attached to the particulars of claim as well. At the top page of the agreement it is stated “Nissan Finance a division of Wesbank a division of FirstRand Bank Limited”.

[15] I find the submission by the defendant that the distinction is not clear, and renders the particulars of claim vague and embarrassing, to be without merit. On that basis the exception should be dismissed. The exception is dismissed with costs.

E. M. KUBUSHI

JUDGE OF THE HIGH COURT

Appearances

HEARD ON THE: 11 MAY 2014

DATE OP JUDGMENT: 20 MAY 2014

PLAINTIFF!* COUNSEL: ADV J A DU PLESSIS

PLAINTIFFS’ ATTORNEY:HACK STUPEL & ROSS

DEFENDANTS COUNSEL:ADV A J SCHOEMAN

DEFENDANTS ATTORNEY :G P VENTER ATTORENYS