James Brown & Hamer (Pty) Ltd (Previously Named Gilbert Hamer & Co Ltd) v Simmons, NO

• Jurisdiction: South Africa
• Judge: van Blerk JA, Ogilvie Thompson JA, Botha JA, Holmes JA and Wessels JA
• Judgment Date: 03 September 1963
• Citation: 1963 (4) SA 656 (A)
• Hearing Date: 18 August 1963
• Court: Appellate Division

D Ogilvie Thompson, J.A.:

On 14th August, 1961, respondent instituted motion proceedings in the Durban and Coast Local Division against appellant (hereinafter referred to as the Engineering Company) calling E upon the latter to restore forthwith to respondent, in his above stated capacity, a quantity of fabricated steel, approximately 173 tons, detailed in the notice of motion and therein alleged to be the property of Consolidated Portland Cement Co. Ltd. (hereinafter called the Cement Company) and to be, or to have been, in the possession of the Engineering Company. In the alternative payment of the value of the F fabricated steel was prayed. The steel in issue was, during the period October, 1947, to January, 1948, fabricated by the Engineering Company at its premises in Durban in pursuance of a contract whereunder that company had agreed to supply, deliver and erect the steelwork required for the superstructure of a factory which the Cement Company proposed to G erect on a site near Port Shepstone. It is common cause that, because of financial difficulties, the Cement Company was unable to continue with the erection of this factory. A dispute exists between the Cement Company and the Engineering Company as to the date when cancellation, as distinct from suspension, of the building contract between them took place; but, although certain portions were subsequently used by the H Engineering Company in other structures, all the steel in issue was originally and at all material times thereafter in the physical possession of the Engineering Company. The Cement Company was placed under judicial management on 2nd July, 1958, and on 17th June, 1959, on the application of the present respondent (hereafter referred to as the judicial manager), the Witwatersrand Local Division ordered a commission of enquiry to be appointed in terms of secs. 155 and 194 of the Companies Act, 46 of 1926, to examine inter alia Mr.

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Lea, at all material dates the managing director of the Engineering Company, Mr. Hodson, the secretary of that company from 1st September, 1946, to 5th September, 1958, and his successor in that position Mr. A Robinson. These gentlemen duly gave evidence on oath before the Commissioner who apparently only concluded his duties on 6th May, 1960.

The judicial manager's above-mentioned notice of motion was supported by affidavits and annexures comprising the history of the events whereunder B the steel came to be fabricated by the Engineering Company, the Cement Company's version of the circumstances whereunder that steel was retained, and some of it used by, the Engineering Company, certain alleged oral admissions by officers of the Engineering Company, correspondence which had passed between the two companies during the period October, 1947, to August, 1961, evidence of certain payments in C respect of the steel in question made by the Cement Company to the Engineering Company, and extracts from the evidence, given at the above-mentioned commission of enquiry, by Lea, Hodson and Robinson, claimed to constitute clear admissions by them that the steel in issue belonged to the Cement Company.

D On 11th September, 1961, the Engineering Company filed opposing affidavits - inter alia one by Lea - which raised various disputes of fact. On the same date the Engineering Company also filed a notice of an application to strike out certain specified passages in the affidavits, and in the annexures to those affidavits, supporting the notice of motion on the ground that evidence given at the enquiry under E secs. 155 and 194 of the Companies Act was not admissible in the present proceedings against the Engineering Company: in the case of Hodson, a further ground advanced was that his evidence before the commission of enquiry was given at a time when he was no longer in the employ of the Engineering Company.

F On 18th November, 1961, the judicial manager deposed to his replying affidavit which, together with an affidavit by Mr. Melamed, an attorney, and a report from the advocate who had presided at the aforementioned commission of enquiry, was duly filed. The motion proceedings, as at that stage, comprised just over 500 pages of the record now before this G Court, less than 60 of those pages being taken up by the opposing affidavits of the Engineering Company.

On 7th February, 1962, the Engineering Company gave notice of an application to strike out portion of the judicial manager's replying affidavit and annexures thereto as being inadmissible for the reasons stated in the Engineering Company's above mentioned notice of 11th H September, 1961: and on 13th February, 1962, the Engineering Company gave notice of an intention to apply at the hearing for leave to file 'in reply to matters raised in applicant's replying affidavit' a further affidavit by Lea and an affidavit by Mr. Winterton, an attorney.

On 2nd March, 1962, the following further affidavits were served: (a) by the judicial manager, signed on 27th February, 1962, in part answering the affidavit of Lea and Winterton last mentioned above, and in part explaining the delay in presenting the affidavit of one Mr. A. L. Owen, more fully referred to below, which the judicial manager

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now sought permission to file in order 'to supplement the various issues raised by me with which he (i.e. Owen) deals in his affidavit'; (b) supporting affidavits by attorneys Melamed and Hurwitz setting out reasons why Owen's affidavit had not been filed earlier; and (c) a 12 page affidavit by Owen jurat 21st February, 1962.

A When these motion proceedings came before HENOCHSBERG, J., on 12th March, 1962, and succeeding days, the further affidavits, mentioned above, of Lea and Winterton were admitted without objection. Counsel for the Engineering Company however objected to the filing of Owen's B affidavit and to the filing of the further affidavits of Melamed and Hurwitz, and to the explanatory portions of the judicial manager's affidavit signed on 27th February, 1962. All these objections were sustained by the learned Judge who, intimating that he would furnish his reasons later, then proceeded to hear the applications to strike out. As appears from HENOCHSBERG, J's. subsequently furnished written reasons C (vide 1962 (2) SA 487), after the order for striking out had been granted, senior counsel then appearing for the Cement Company intimated (see p. 487 in fine of the report) that upon the thus truncated record and without Owen's affidavit, he

'would no longer be able to satisfy the Court that the applicant was entitled to the relief sought'.

D HENOCHSBERG, J., thereupon dismissed the application and after hearing further argument in relation to a claim by the Engineering Company for attorney and client costs, reserved judgment on that question. Ultimately the learned Judge refused to award...