Goldberg and Another v DI Meo

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Milne AJP, Caney J and Henochsberg J
• Judgment Date: 22 March 1960
• Citation: 1960 (3) SA 136 (N)
• Hearing Date: 03 February 1960

Milne, A.J.P.:

This is an appeal against an order for costs made by FANNIN, J., against the appellants. It is convenient to indicate the nature of the case by reference to the opening portion of the judgment a C quo, as follows:

'This matter came before me on a summons for provisional sentence on a notarial bond passed in terms of Act 18 of 1932 (as amended). The summons was issued against the defendant therein described as:

'Capri Restaurant, a duly registered firm 793/58, carrying on business at 6a John Milne Road, Durban.'

It called upon the defendant to pay a sum of £1,450 and interest which, D it was alleged, was owing by the defendant to the plaintiff:

'. . . upon and by virtue of a certain notarial bond (a copy of which is hereto annexed marked 'A)

duly passed by the defendant, and duly registered . . . numbered 9278/58 and dated 5th December, 1958 . . . .'

It was alleged that the bond had been passed in terms of a power of attorney granted 'by the defendant to Denis Garland Cox' and that the bond had become due by reason of the fact that the defendant, in breach of its terms, had 'encumbered, sold and disposed of the assets' bonded E under the bond, without the plaintiff's consent. The copy of the bond served with the summons reflected that it had been signed before a notary by one Denis Garland Cox under a power of attorney dated 2nd July, 1958, and granted to him by -

'Capri restaurant 793/1958 the individual partners whereof are (1) Enrico Giovagnoli (born 13th May, 1919) and (2) Giovanni Batista Caviglia (born 13th April, 1917) . . .'

and that both of these persons resided at 73 Saxony House, Aliwal Street, Durban, and carried on business at 6a John Milne Road, Durban. F According to the Deputy Sheriff's return the summons and the annexed copy of the bond were served on one 'M. E. Meyes' at 6a John Milne Road, Durban, the person whom he found in charge there. The debtors in the bond nominated 6a John Milne Road, Durban, as their domicilium citandi et executandi.

On the return date of the summons Mr. van Heerden appeared for the plaintiff, while two other parties were also represented, both claiming to have been cited as defendants. Mr. Levy appeared to say that he G represented a partnership firm consisting of the two persons mentioned in the bond, and that his clients, who had until a date in July, 1959, carried on the restaurant business known as Capri Restaurant and were still registered under the Natal Firms Act as partners of the firm known as Capri Restaurant, had come to terms with the plaintiff, and that they consented to a provisional judgment, with costs as on an unopposed action for that relief. Mr. Leon (and with him Mr. Didcott) also appeared, representing a Mr. and Mrs. Boris Goldberg, who had filed affidavites, opposing provisional sentence, and saying that they were, H at the date of the service of the summons (31st July, 1959), carrying on business in partnership as Capri Restaurant at 6a John Milne Road, Durban. They said they had bought the business formerly carried on by the two persons represented by Mr. Levy under a deed of sale dated 22nd June, 1959 (sic), that they had been granted their trading licences on 23rd July, 1959, but had actually been so carrying on business for their partnership account since 1st July, 1959. They took certain objections to the form of the proceedings, and also resisted provisional sentence on the ground that they were not the debtors under the bond and owed the plaintiff nothing. They claim that the plaintiff has sued them

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and not the real debtors, against whom they say the action should have been brought. Mr. van Heerden, for the plaintiff, claimed that it quite clearly appeared from the papers that the partnership which the plaintiff was suing was that constituted by the two persons represented by Mr. Levy, and disclaimed any desire on his client's part for a A judgment against the Goldberg partnership. He said, however, that the partnership ought to be made to pay the costs incurred as a result of its intervention. Mr. Levy said, also, that his clients regarded themselves as having been sued, and consented to judgment, should the Court hold that view to be correct. Mr. Leon, however, insisted that, whatever the plaintiff might now say, the true legal effect of the summons was to cite his clients as defendants. They were, therefore, entitled to resist, and as the plaintiff now admitted that his clients B owed the plaintiff nothing, the proper order was to refuse provisional sentence and award his clients their costs.'

The order made by the learned Judge was expressed as follows:

'There will, therefore, be judgment for £1,450 plus interest at 6% per annum from 31st July, 1959, to date of payment in favour of the plaintiff against the partnership firm, Capri Restaurant, the individual partners whereof are (1) Enrico Giovagnoli and (2) Giovanni Battista Caviglia, with costs as on an unopposed action for provisional sentence. C The partnership firm consisting of Boris Goldberg and Gertie Anna Goldberg (formerly Hathorne, born Botha) is ordered to pay the costs of the plaintiff other than those which are included in the judgment referred to above.'

The main opposing affidavit filed on behalf of the appellants was made by Mrs. Goldberg who stated that she and her husband 'carry on business D in partnership under the name or style of Capri Restaurant at 6a John Milne Road, Durban'. It is common cause that no steps had been taken in terms of the Firms Act, 35 of 1906, to show the appellants as the partners of a firm known as Capri Restaurant and it seems clear enough, therefore, that the appellants made no attempt to comply with the terms of sec. 9 of that Act.

E I summarise, as follows, some of the grounds upon which, in Mrs. Goldberg's affidavit, provisional sentence was opposed:

(a)

That insufficient particulars were given of the alleged breach of the conditions of the bond;

(b)

That the occurrence of the alleged breach did not amount to a simple F event such as to entitled the plaintiff to proceed by way of provisional sentence summons;

(c)

That, in terms of a deed of sale made on 11th June, 1959, (not 22nd June, as stated in the judgment a quo) the appellants 'acquired the assets of the business formerly carried on under the name or style of G Capri Restaurant, by one Enrico Giovagnoli and one Giovanni Battista Caviglia, trading in partnership with each other', and that this sale was consented to by the plaintiff in terms of a document (annexure G.A.G. 4) signed by the plaintiff on 19th June, 1959, of which the material part reads as follows:

H 'I, Carmelo di Meo, do hereby agree to the following arrangements in regard to Capri Restaurant, namely:

1.

The existing notarial mortgage bond 9278/1958 shall be cancelled simultaneously with registration of a new notarial bond in my favour to be passed by Mr. and Mrs. Boris Goldberg upon the identical terms and provisions of the said bond 9278/1958 mutatis mutandis, but for an amount of one thousand five hundred pounds (£1,500) only, together with

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two hundred and fifty (£250) for contingent payments, costs or outlays.'

(d)

That the service of the summons was effected on the appellants.

(e)

That the obligations under the bond sued upon were those of Giovagnoli and Caviglia.

(f)

A That 'the plaintiff ought to have instituted any proceedings arising out of the said bond against the said Giovagnoli and the said Caviglia as individuals, or against the partnership between the two of them, if it still exists, as to which I have no knowledge'.

B As appears, however, from the opening portion of the judgment a quo which I have set out above, the substantial ground upon which the appellants claimed, at the hearing, that they were entitled to their costs, was that the summons cited the appellants as the defendants; alternatively, because they were misled by the form of the summons, and C by the attitude adopted by the plaintiff's attorney, Mr. Snyman, when he was spoken to by Mr. Knox a member of the firm of appellants' attorneys, after the issue of summons. Mr. Knox's version of what took place is set out in the following paragraphs of an affidavit sworn to by him on 25th August, 1959:

'2.

I was first consulted by Gertie Anna Goldberg in her capacity as a D partner in the defendant firm, on Tuesday the 11th day of August, 1959. The hearing of this matter was originally set down for Friday the 14th August, 1959, and after taking my intial instructions it was clear to me that I would need more time than was available to prepare the defence properly. Shortly before lunch on Tuesday the 11th August 1959, I accordingly telephones the plaintiff's attorney, Mr. P. C. A. Snyman, when I spoke to him personally and requested the first adjournment which E was in due course made to Friday the 21st August, 1959, in this matter.

3.

When I spoke to Mr. Snyman I told him that I had been consulted by Mrs. Goldberg on behalf of herself and her husband, as the then lawful owners of the business Capri Restaurant. I told Mr. Snyman that I had immediately formed the opinion that his summons was out of order in that from my instructions it appeared that the lawful owners of the business Capri Restaurant at the date of the issue of the summons herein were no F longer Messrs. Giovagnoli and Caviglia, who are the debtors under the notarial bond sued upon, and had by that time become my clients Mr. and Mrs. Goldberg.

4.

I accordingly suggested to Mr. Snyman during my telephone conversation that his summons was out of order, having in mind the way it was addressed and the fact that it was served at the place of business of the defendant firm on the 31st July, 1959 (information I obtained from G Mr. Snyman). Mr. Snyman replied by saying that that was a matter which this Honourable Court...