Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd

• Jurisdiction: South Africa

Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd
2003 (1) SA 265 (C)

2003 (1) SA p265

Citation	2003 (1) SA 265 (C)
Case No	4634/2002
Court	Cape Provincial Division
Judge	van Reenen J
Heard	August 23, 2002
Judgment	September 3, 2002
Counsel	G Selikowitz for the applicant.; A D Maher for the respondent.

Flynote : Sleutelwoorde B

Practice — Applications and motions — Prayer for further and/or alternative relief — Scope of — Not possible to distill from authorities generally applicable criteria as to scope of prayer — Can be invoked to justify order other than that set out in notice of motion where that order clearly indicated in founding affidavits and is established on papers — But relief substantially different from that claimed cannot be granted C unless basis therefor fully canvassed — Thus in application for provisional winding-up order against company where applicant no longer seeking winding-up order claim for payment of amount owed to applicant so substantially dissimilar from relief sought in notice of motion that it cannot be granted under prayer for further D and/or alternative relief where respondent not informed that such relief would be sought and not had adequate opportunity of dealing with it in answering affidavit.

Headnote : Kopnota

It is not possible to distill from the decided cases generally applicable criteria as to the extent to which a plaintiff or applicant E may be granted relief under a prayer for further and/or alternative relief (the so-called clausula salutare). Such a prayer can be invoked to justify or entitle a party to an order in terms other than that set out in the notice of motion (or summons or declaration) where that order is clearly indicated in the founding (and other) affidavits (or in the pleadings) and is established by satisfactory F evidence on the papers (or is given). Relief under this prayer cannot be granted which is substantially different to that specifically claimed, unless the basis therefor has been fully canvassed, viz the party against whom such relief is to be granted has been fully apprised that relief in this particular form is being sought and has had the fullest opportunity of dealing with the claim for relief being pressed under the head of further and/or alternative relief. (Paragraph [11] at 268C/D and E - G/H.) G

The dictum in Port Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C) at 112D - F approved and applied.

The Court accordingly held that in an application for the provisional winding up of a company where the applicant no longer sought such an H order, a claim for the payment of an amount admittedly owed to the applicant (the rest of the applicant's claim being in dispute) could not be granted under the prayer for further and/or alternative relief as such relief was substantially dissimilar to the relief sought in the notice of motion, the respondent had not been apprised of such relief being claimed and had not had an adequate opportunity of considering and dealing with it in the answering affidavit. (Paragraphs [12] and [13] at 268J - 269B.) I

Cases Considered

Annotations

Reported cases

Chenille Indiustries v Vorster 1953 (2) SA 691 (O): compared

Collett v Priest 1931 AD 290: dictum at 299 applied J

2003 (1) SA p266

Colonial Treasurer v Senekal Municipality 1910 OPD 7: considered A

Crispette and Candy Co Ltd v Oscar Michaelis NO and Leopold Alexander Michaelis NO 1947 (4) SA 521 (A): referred to

De Villiers v Soetsane 1975 (1) SA 360 (E): compared

Erasmus v Grunow en 'n Ander 1980 (2) SA 793 (O): dictum at 797H applied

Kent v Bevern and Co 1907 TS 395: dictum at 401 applied B

Luzon Investments (Pty) Ltd v Strand Municipality and Another 1990 (1) SA 215 (C): considered

Mahomed v Nagdee 1952 (1) SA 410 (A): compared

Nxumalo and Another v Mavundla and Another 2000 (4) SA 349 (D): compared

Palley v Knight NO 1961 (4) SA 633 (SR): dictum at 638 in fine - 639A applied C

Port Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port Nolloth Municipality 1991 (3) SA 98 (C): dictum at 112D - F approved and applied

Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272: considered D

Rooibokoord Sitrus (Edms) Bpk v Louw's Creek Sitrus Koöperatiewe Maatskappy Bpk 1964 (3) SA 601 (T): considered

Trustees of the Orange River Land and Asbestos Co v King and Others 6 HCG 260: considered

Walker v Syfret NO 1911 AD 141: referred to. E

Case Information

Application for a provisional winding-up order. The facts and the nature of the issues appear from the reasons for judgment.

G Selikowitz for the applicant.

A D Maher for the respondent.

Cur adv vult. F

Postea (September 3).

Judgment

Van Reenen J:

[1] The applicant on 30 May 2002 applied for an order winding up the respondent provisionally on the basis that it is G unable to pay its debts.

[2] The respondent opposes the application and filed an answering affidavit in response to which the applicant filed a replying affidavit.

[3] The applicant bases its locus standi on an averment that the respondent is indebted to it in an amount of H R165 644,82 in respect of the balance of goods sold and delivered during 2000 - 2002. As regards the respondent's inability to pay its debts the applicant's case is based solely on inferences drawn from the fact that, despite meetings between the applicant's and the respondent's representatives on three occasions between 29 April 2002 and 6 May 2002, during which the respondent's I queries were dealt with, promises of payment made and a written demand...