Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Tip AJ
• Judgment Date: 19 December 2000
• Citation: 2001 (4) SA 211 (W)
• Docket Number: 957/2000
• Counsel: G E Turner for the plaintiff. C W Jordaan SC for the defendant.
• Court: Witwatersrand Local Division

Tip AJ:

[1] On 26 January 1999 a consignment of foreign currency was stolen whilst being transported by the defendant from a South African Airways (SAA) cargo safe at the Johannesburg International Airport to the hold of an SAA aircraft in which it was to be flown to E London for delivery to Thomas Cook. It is common cause on the pleadings that the consignment was stolen by an employee of the defendant, being one of the security guards who were directly responsible for its safeguarding. It is common cause further that this security guard was at all times acting within the course and scope of his employment with F the defendant. The theft has given rise to the present action for damages.

[2] The defendant resists liability on various grounds, the two principal ones being that: G

2.1

it alleges the present action to be a nullity and contests the title of the present plaintiff to sue for the loss;

2.2

it alleges that the plaintiff is in any event subject to the limitation of liability provided in art 25A read with art 22 of the Warsaw Convention.

The status of the present action H

[3] This action was initially launched in the name of Rennies Travel (Pty) Ltd as the plaintiff. That remained the position throughout the further pleadings, which closed on 13 April 2000 after service of the plaintiff's replication. On 10 October 2000, shortly before the conduct of a pretrial conference, the plaintiff delivered a notice of intention to amend, in the following terms: I

'Be pleased to take notice that the plaintiff intends to amend its particulars of claim in the following respects:

1.

By the amendment of para 1 of the particulars of claim and the combined summons, by the deletion of the words ''Rennies J

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Travel (Pty) Ltd'' whenever it appears therein and its replacement with the words ''Luxavia (Pty) Ltd t/a Rennies Travel'' . . . .'

[4] The defendant did not then object to the amendment. A However, according to Mr Jordaan, for the defendant, it was not until receipt by it of certain documentation after the pre-trial conference, that it became apparent to the defendant that B the amendment amounted to the substitution of a new corporate entity as the plaintiff. It is common cause that the introduction of Luxavia (Pty) Ltd (Luxavia) was indeed a substitution and that it is entirely distinct as a corporate entity from Rennies Travel (Pty) Ltd. It is also undisputed that Rennies Travel (Pty) Ltd did not at any time have C a cause of action.

[5] The defendant then amended para 1 of its plea, relating to the identity of the plaintiff, to read as follows:

'1.1

Defendant notes that, on the plaintiff's case as presently pleaded, Rennies Travel (Pty) Ltd (''the first plaintiff'') did not have a cause of action against the D defendant.

1.2

Defendant notes that the amendment whereby Luxavia (Pty) Ltd (''the second plaintiff'') became the plaintiff in this action was not a mere change of name, as the defendant was led to believe, but a substitution of parties. E

1.3

Insofar as the first plaintiff has no cause of action against the defendant the action instituted by it was a nullity and the ''substitution'' for it by the second plaintiff is equally a nullity.'

[6] On behalf of the plaintiff, Mr Turner submitted that since the defendant had not objected to the amendment, it was deemed to have consented to the substitution, in terms of Rule 28(5). F He submitted also that it was for the defendant's attorney to find out what the implications of the amendment were. I do not agree. Although it is not expected of a party that it should explain or motivate amendments that it seeks through a Rule 28 notice, the notice in this case should have made it clear that a substitution of the first plaintiff by the second plaintiff was intended. This was not in any G meaningful way conveyed through the phrases 'deletion of the words' and 'replacement with the words', which were understood by the defendant, reasonably so in my view, to indicate that it was merely a misnomer that was being corrected. Compare Mias de Klerk Boerdery (Edms) Bpk v Cole 1986 (2) SA 284 (N) at 285E - F, where it appears that the Rule 28 notice there being considered had H identified itself as dealing with substitution.

[7] It is therefore necessary to consider the defendant's contention that the present action has always been a nullity and that it cannot be cured through the amendment here at issue. The first plaintiff was registered in 1995. It underwent several name changes before it became Rennies Travel (Pty) Ltd in June 1988. On 9 I November 1999 its name changed again, to Renbid 19 (Pty) Ltd. The last name change had already been effected before the summons in this matter was issued, in January 2000. Although the first plaintiff is cited in the SAA Air waybill as the shipper J

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of the foreign currency, it is common cause that Luxavia was the intended shipper and that whatever A rights or duties apply to a shipper in terms of the waybill, will apply also to Luxavia. In similar vein, the parties were ad idem that Rennies Travel (Pty) Ltd was at no stage the owner of the foreign currency consignment. For the purpose of this case, the first plaintiff may be treated as having been dormant at all material times, without any rights, title or interest in the loss resulting from the theft. The B question is whether these facts demonstrate this action to be irremediably defective.

[8] Our Courts are presently not swift to non-suit a litigant because of a defect in the process. Even in an early decision of the Full Bench, where a defect was held to result in an incurable nullity, it was observed by De Villiers JP that this conclusion had been reached C 'with great reluctance'. See Van Vuuren v Braun & Summers 1910 TPD 950 at 952. In that case a summons was issued on 5 July 1910. Through clerical error the return day was entered as 15 June 1910. Notwithstanding that the defendant was present in Court on the intended date of 15 July, the summons was held to be a D nullity, with no amendment being permissible. A similarly strict approach is reflected in Greenblatt v Goldstuck 1916 OPD 192. See also Buck v Green 1932 NPD 425 at 434.

[9] In Springson v Commonwealth Trading Co Ltd; Mail v Du Plessis 1948 (1) SA 1165 (W), the Court accepted that, although Van Vuuren v Braun & Summers had never been expressly E overruled,

'. . . a different practice has grown up, permitting the amendment of an invalid summons so as to confer validity upon it. Reference was made . . . to a number of cases, decided after Van Vuuren's case, which, it is said, establish the propriety of a practice under which summonses carrying various defects which may be described as fatal may be amended, provided that such F amendment causes no prejudice or injustice and provided that the failure to make the necessary allegations in the first instance was not intentional or mala fide.'

(At 1167 - 8.)

[10] In Moolman v Estate Moolman and Another 1927 CPD 27 at 29, a 'practical rule' developed in a number of English cases G was applied being that 'amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs . . .'. A fuller and more recent statement of this rule is to be found in the judgment of Rose Innes J, in Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 (C) H at 369F - I:

'The general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless the application to amend is mala fide or unless the amendment would cause an injustice or prejudice to the other side which cannot be compensated by an order for costs or, in other I words, unless the parties cannot be put back for the purposes of justice in the same position as they were when the notice of motion which it is sought to amend was filed. . . . A material amendment such as the alteration or correction of the name of the applicant, or the substitution of a new applicant, should in my view usually be granted subject to the considerations mentioned of prejudice to the respondent. . . . The risk of prejudice will usually J

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be less in the case where the correct applicant has been incorrectly named and the A amendment is sought to correct the misnomer than in the case where it is sought to substitute a different applicant. The criterion in both cases, however, is prejudice which cannot be remedied by an order as to costs and there is no difference in principle between the two cases. . . .'

[11] This statement was cited with approval by Goldstein J (Malan J concurring) in Rosner v Lydia Swanepoel Trust 1998 (2) SA 123 (W) B at 127G. At 127H it was further observed that the approach of Rose Innes J 'appears to me, with respect, to be eminently practical and sensible, eschewing technicality and correcting procedural mistakes as cheaply as is possible'.

[12] There are other instances where the Courts have clearly expressed a preference for a non-technical and expeditious approach to C litigation, the possibility of prejudice being the principal limitation. See O'Sullivan v Heads Model Agency CC 1995 (4) SA 253 (W), per Flemming DJP:

'Prior to the Janet decision, it was seemingly common cause that the only limitation to amendments, substitution of parties D being in no special category, is prejudice which cannot be removed by an order for costs.'

(At 255B.) The learned Judge referred, inter alia, to Curtis-Setchell & McKie v Koeppen 1948 (3) SA 1017 (W), where it was observed at 1021:

'There are several cases in which the Courts have granted applications for substitution involving the introduction of a new E persona on...