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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

Case Number: 11847/2012

5/12/2019

 

In the matter between:

 

FREED SWEETS CC                                                                             Applicant

 

And

 

MAKHUBU LOGISTICS (PTY) LTD                                                   First Respondent

TRANSNET LIMITED                                                                           Second Respondent

JUDGMENT

(APPLICATION FOR LEAVE TO APPEAL)

JANSE VAN NIEUWENHUIZEN J

INTRODUCTION

[1]        The applicant applies for leave to appeal against the judgment and order handed down by this court on 8 August 2019, in terms of which the applicant's claim against the second respondent was dismissed with costs. The applicant refers in its application to the second respondent as "the respondent" and I will follow the same methodology infra.

 

Grounds for leave to appeal

[2]        The grounds of appeal consist of two main points. One pertains to the findings in respect of the oral agreement between the parties and the other to the applicant's enrichment claim.

[3]        Mr Geach SC, counsel who appeared for the applicant during the trial, expressly abandoned the applicant's enrichment claim and the application in this respect, is ill­ conceived and bad in law.

[4]        I was informed by Mr Preiss SC, counsel for the applicant, that Mr Geach SC was not the author of the application and that a junior counsel was briefed to draft same. It is of utmost importance that officers of the court draft pleadings meticulously and with the necessary professionalism that is expected of members of the legal fraternity.

[5]        Both the counsel who drafted the application and the attorney of record for the applicant should deem this judgment as a fair warning that work of this nature will in future be visited with a punitive cost order.

[6]        The relevant grounds of appeal read as follows:

“

2.

2.1           In finding that the applicant failed to prove an oral agreement between it and the respondent, in accordance with which the respondent was to pay to the applicant 50% of any VAT rebate it received, as per the written agreement entered into between the applicant and the first defendant(respondent)."

2.2           In not finding that the applicant proved an oral agreement between it and the respondent, in terms of which the respondent was to pay to the applicant 50% of nay VAT rebate it received, as per the written agreement entered into between the applicant and the first defendant."

 

Applicant's submissions

[7]        The trial proceeded on the basis of an oral agreement reached between the applicant and the respondent "on or about 20 May 2008 Having analysed the evidence tendered by the applicant, this court found that the applicant did not prove on a balance of probabilities that the alleged oral agreement was concluded with the respondent on or about 20 May 2008.

[8]        Mr Preiss SC, submitted that this court erred In placing too much emphasis on the date alleged in the applicant's particulars of claim and that the real question is whether the evidence proved on a balance of probabilities that an oral agreement was entered into between the parties. Mr Preiss SC further submitted that the agreement could, on the evidence, have been concluded at any stage from March to May 2008.

[9]        I pause to mention, that the aforesaid contention was not in line with the applicant's pleaded case or with the submissions made by the counsel appearing for the respective parties at the conclusion of the trial.

 

Respondent's submissions

[10]     Ms Lekoane, counsel for the respondent, submitted that the applicant's application fails to comply with rule 49(1)(b) of the Uniform Rules of Court in that the grounds are extremely vague. In this regard Ms Lekoane referred to the judgment of Songono v Minister of Law and Order 1996 (4) 384 E in which the court held that the same test applicable to a rule 49(3) notice of appeal should be applied to an application in terms of rule 49(1)(b). In respect of the applicable test, Leach J stated the following at 385G -385H:

"Accordingly, insofar as Rule 49(3) is concerned, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvas every finding of fact and every ruling of law made by the court a quo, or if they specify the findings of fact and every ruling or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet "

 

[11]       In the present instance, the applicant did not specify in respect of which findings of fact or law the court erred. To the contrary, the respondent was faced with a totally new approach to the matter in circumstances where the respondent, being blissfully unaware of the applicant's new stance, could not prepare on the new point of law.

[12]       Ms Lekoane submitted that the application should be dismissed for non-compliance with the provisions of rule 49(1)(b).

 

Applicant's response

[13]       In response Mr Preiss SC submitted that a point of law may be raised on appeal if the evidence that was presented in the court a quo so justifies.

[14]       In respect of the allegation of non-compliance with the provisions of rule 49(1)(b), he submitted that the court should not be over formalistic, placing form above substance and furthermore that the issue in dispute is simplistic in nature.

 

Discussion

[15]     The issue in question is crisp and confined to the alleged oral agreement entered into between the parties. I am of the view, that the respondent will not be prejudiced if the application is heard on the grounds contained therein. The point of law raised for the first time by Mr Preiss SC at the hearing of the application, remains a point of law and should be dealt with accordingly.

[16]     In preparing this judgment, I had regard to EC Chen/a and Sons CC v lame & van Blerk2006 (4) SA 574 SCA In the aforesaid matter, the respondent successfully sued the appellant for payment of an amount for professional services rendered in terms of an expressed agreement concluded on or about 31 January 2002.

[17]      During evidence it transpired that the agreement was actually concluded during the course of a telephonic conversation on 12 March 2002. On appeal the appellant submitted that the court a quo erred by relying on evidence led by the respondent which was not covered by the pleadings, which error was prejudicial to the appellant.

[18]      At paragraph [13] Brand JA held as follows:

"The question is therefore one of prejudice. Can the defendant's plea of prejudice be sustained? For a number of reasons, I think not. First, the departure from the pleadings complained of did not relate to the real issue between the parties which was whether there was any agreement between the parties at all. It did not concern the date upon which any notional agreement could have been concluded. That much was underscored in the defendant's plea which not only denied the agreement alleged by the plaintiff, but also any agreement for the rendering of services between the parties. (see para [3] above)."

 

[19]       In view of the aforesaid, the submission in law that this court should have had regard to all the interactions between the parties in order to determine whether an oral agreement was concluded albeit on another date than the date mentioned in the particulars of claim, appears to be in line with the finding in the Chenia judgment.

[20]       The question then arises whether there is a reasonable prospect that another court, having had regard to the evidence presented at trial, could find in favour of the applicant. I am of the view that such a reasonable prospect exists and an appropriate order will follow.

 

Costs

[21]       In view of the incorrect grounds of appeal and the vague grounds of appeal in respect of the oral agreement, I am of the view that the respondent had no alternative but to oppose the application.

[22]       In the premises, a cost order against the applicant is deemed appropriate.

 

ORDER

1.          The applicant is granted leave to appeal to a full bench of this court, against the judgment and order handed down on 8 August 2019.

2.          The applicant is ordered to pay the costs of the application.

 

 

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

DATE HEARD                                                28 November 2019

JUDGMENT DELIVERED                            5 December 2019

 

 

APPEARANCES

Counsel for the Plaintiff:                                  Advocate D. Priess SC

             (012 452 8716)

Instructed by:                                                   ML Schoeman

(012 562 9900)

Ref: MLS/TW/ML0121

 

Counsel for the Second Defendant:                 Advocate M. Lekoane SC

            (084 973 9686)

Instructed by:                                                  DM 5 Incorporated

(011 721 4800)

Ref: M Mbongeni

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