Jukuda v African Pioneer Investments Ltd

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 05 March 2009
• Docket Number: 1770/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 19 February 2009
• Citation: 2009 JDR 0160 (SE)

Jones J:

[1] The plaintiff, who describes himself as a businessman of Port Elizabeth, issued summons against the 1st defendant, African Pioneer Investment Holdings Limited, and the 2nd defendant, its executive director and chairperson, for payment of the sum of R12 090 000-00 with interest and costs. The sum of R12 000 000-00 is alleged to include repayment of an amount R29 000-00 paid by the plaintiff to the company. The rest is alleged to be dividends and interest since 1994. The amount of R90 000-00 is claimed as patrimonial and non patrimonial damages.

[2] On 4 November 2008 the plaintiff applied for summary judgment in this amount. The defendants opposed the application on the strength of an affidavit in terms of rule 32(3)(b) filed by the 2nd defendant. The affidavit set out certain defences on the merits, and incorporated by reference three notices of objection to the particulars of claim. The first was an application lodged in terms of rule 30 to dismiss the particulars of claim as an irregular proceeding. There were also two

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Jones J

notices of exception to the particulars of claim on the ground that they failed to disclose a cause of action and that they were vague and embarrassing. After argument, I dismissed the application for summary judgment, and gave the defendants leave to defend.

[3] The three objections to the particulars of claim are now before me. The plaintiff has in addition filed an application to join a third defendant, which is opposed. The four matters were set down together. All were strictly speaking not properly before me because both parties had filed their heads of argument late. But the 2nd defendant was granted condonation because he had filed an application for condonation in proper form which gave what I considered to be a reasonable explanation and apology, which stated that the heads were only marginally late (by half a day) and which satisfied me that there was no prejudice to the parties and no inconvenience to the court arising from the default. There was, however, no application for condonation by the plaintiff, and consequently no explanation. In those circumstances his application for joinder was struck off the roll with costs. The plaintiff will have to have it re-enrolled in due course, if so advised.

[4] I turn then to the objections to the particulars of claim which are attached to the plaintiff's combined summons and which comprise 13 paragraphs. Paragraphs 1, 2 and 3 describe the parties as in paragraph 1 above, and paragraph 4 alleges that the 1st defendant was incorporated on 14 January 1994 under registration number 1994/000181/06, and that the 2nd defendant is cited in his official capacity as its executive director and chairperson. Paragraph 5 alleges that 'the plaintiff is a director and shareholder in the 1st defendant since 1994 and by virtue thereof is entitled to receive dividends and interest thereof (See Annexure MJ 1)'. MJ 1 is in fact two documents – the first is a share certificate in a company called African Pioneer

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Jones J

Limited (reg No 97/01153/06) reflecting the plaintiff as the registered proprietor of 14950 shares on 24 March 1998; and the second reflecting him as the registered proprietor of 367387 shares in the same company on 10 November 2000. Paragraph 6 alleges that on registration of the 1st defendant the plaintiff put in the amount of R29 000-00 as a contribution towards the capital of the...