D F Scott (EP) (Pty) Ltd v Golden Valley Supermarket

• Jurisdiction: South Africa
• Judge: Harms JA, Cameron JA and Nugent JA
• Judgment Date: 23 May 2002
• Citation: 2002 (6) SA 297 (SCA)
• Docket Number: 134/2001
• Counsel: A Beyleveld for the appellant. E A S Ford for the respondent.
• Court: Supreme Court of Appeal

Harms JA:

[1] This appeal concerns an aspect of Magistrates' Courts Rule 54. The Rule deals with actions by and against partners, a person carrying on a business in a name or style other than that person's own F name, and by or against an unincorporated company, syndicate or association. It primarily permits these 'entities' to sue and be sued without citing the 'real' parties (such as the individual partners) by name. But, as some Roman once remarked, nomen est omen: citing a party under that party's alias may be risky. As far back as 1930, this Court had the occasion to express its dismay at the Rule G (Parker v Rand Motor Transport Co and Another 1930 AD 353 at 361; see also Rees v Feldman 1927 TPD 884). At the same time the hope was expressed that it may be found expedient to substitute a simpler and less confusing system of Rules. No such luck. The principles underlying the Rule were later incorporated in Uniform Rule H 14. To complicate matters the two Rules, without a discernible rationale, are not the same. Even the meaning of words differ. For instance, the word 'firm' is used in Rule 54 to refer to a partnership, whereas it is defined in Rule 14 to refer to a business carried on by its sole proprietor under a name other than that person's own. Although this judgment concerns Rule 54, the term will be used in the Rule 14 sense. I

[2] The plaintiff (the present appellant) issued summons in the magistrate's court for the district of Somerset East for payment for goods sold and delivered during January and February 1997. The defendant was cited as 'Golden Valley Supermarket' and the summons called upon J

Harms JA

'die eienaar, Golden Valley Supermark, 'n firma wat handel dryf te Golden Valley, Somerset Oos' A

to do what summonses usually require of defendants. In due course an appearance to defend was entered on behalf of the 'defendant'. The attorney on behalf of the defendant sought further particulars and these were supplied. B

[3] The defendant, through the attorney, filed a plea, which, from the outset, contained the following defence:

'1.1

Golden Valley Supremarket is tans die eiendom van die Golden Valley Ventures BK en is gemelde beslote korporasie dus die verweerder in hierdie aksie. C

1.2

Gedurende die tydperk 30 Oktober 1996 tot 4 Maart 1997 het ene meneer Wayne Vye die perseel, toerusting en meublement van Golden Valley Supermarket gehuur by die verweerder en het persoonlik handel gedryf onder die naam van Golden Valley Supermarket.'

[4] The plea was in accordance with Magistrates' Courts Rule 19(5). It provides: D

'(a)

For the purposes of this Rule ''defendant'' includes a person upon whom a summons has been served and who alleges that he is not the defendant cited in the summons and enters appearance to defend on that ground. The court may on hearing of any such defence order costs to be paid to or by such E person as if he were a party to the action.

(b)

If such defence be sustained the court, instead of dismissing the summons, may, if moved thereto by the plaintiff, allow any necessary amendment and order that it be served upon the real defendant.'

[5] The case went to trial on substantially this issue. The plaintiff's case was that the close corporation and not Mr Wayne Vye F was liable to it. The defendant's evidence was in accordance with the plea and the magistrate in the event upheld the plea, finding that the plaintiff all along knew that Mr Wayne Vye, and not the close corporation, was its debtor. The claim was consequently dismissed with costs. G

[6] The plaintiff appealed to the Full Bench (D F Scott (EP) (Pty) Ltd v Golden Valley Supermarket [2001] 1 B All SA 303 (E), per Kroon J and Govender AJ). For purposes of the appeal the plaintiff accepted the magistrate's factual findings but argued that, in spite thereof, it was entitled to judgment against 'Golden Valley Supermarket'. In this regard the plaintiff relied upon H Rule 54 and the judgment of the Cape Full Court in Farm Fare (Pty) Ltd v Fairwood Supermarket 1986 (4) SA 258 (C) at 262C - E. The Court below nevertheless dismissed the appeal but granted the necessary leave to appeal to this Court, where the issue remains whether on the facts judgment can be entered against 'Golden Valley Supermarket'. I

[7] The record before the Court below was somewhat defective and the learned Judges were consequently unaware of the fact that after the filing of the plea the plaintiff had served a notice, purportedly under Rule 54(1), requiring of the defendant to provide it with the names and addresses of the persons who had been the partners of the firm at the J

Harms JA

time the cause of action arose. The response accorded with the plea and stated that Mr Wayne Vye had been the sole proprietor of the A business at the time.

[8] Rule 54 provides as follows:

'(1) Any two or more persons claiming or being sued as co-partners may sue or be sued in the name of the firm of which such persons were co-partners at the time of the accruing of the cause of B action. In any such case...