Mathome Training Development (Pty) Ltd v Finsch Diamond Mine Training Center and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: CC Williams J
• Judgment Date: 25 February 2022
• Docket Number: 424/2019
• Hearing Date: 05 March 2021
• Court: Northern Cape Division
• Citation: 2022 JDR 1976 (NCK)

Williams J:

1.

The second defendant, TNC Mining (Pty) Ltd (TNC), has raised a special plea of prescription to the plaintiff's, Mathome Training Development (Pty) Ltd, claim for services rendered alternatively damages as a result of breach of contract. It is not in dispute that the plaintiffs had entered into a Service Level Agreement (SLA) with the first defendant Finsch Diamond Mine Training Centre, during 2013 and in terms of which, in a nutshell, the plaintiff would provide mining training services to TNC.

2022 JDR 1976 p2

Williams J

2.

In terms of clause 4.1 of the SLA the work would commence on 1 July 2013 until the end of the contract term of TNC with the first defendant or until the plaintiff's contract with TNC came to an end, whichever event occurred first.

3.

In terms of Clause 5.1 of the SLA, the fee for any training intervention, which includes all charges for the work to be done would be for the account of TNC.

4.

The plaintiff alleges in its particulars of claim that TNC summarily and without proper cause terminated the agreement on 3 March 2016 at which time there was an amount outstanding for services rendered by the Plaintiff.

5.

On 26 February 2019 the plaintiff caused the summons to be issued out of this court. On 27 February 2019 the sheriff served the summons on TNC by affixing it to the outer postbox of the domicilium citandi et executandi chosen by the first defendant, which in terms of the SLA is P.O Box 7, Lime Acres. The sheriff's return of service also states that "the same copy was served on the 27th February 2019 via registered post to P.O Box 07 Lime Acres, 8410. O.D Nnosang collected the parcel on the 6th March 2019 as informed by Post Office officials."

6.

TNC's special plea reads as follows:

"1.1

The Plaintiff's claim is based on a contract which was concluded on 4 December 2013. The contract was cancelled by the Second

2022 JDR 1976 p3

Williams J

Defendant on 3 March 2016 on which date, the Plaintiff's claim fell due;

1.2

The Plaintiff's summons was served on the Second Defendant on 8 March 2019, which is more than three years after the date on which the claim arose;

1.3

In the premises, the Plaintiff's claim is prescribed in terms of Act 68 of 1969.

1.4

In the alternative to the above, the Plaintiff's claim is premised on monthly invoices payable on receipt, prescription commenced to run in respect of each invoice when same became due, there was a three-year prescriptive period in respect of each such debt.

1.5

The summons was served on 8 March 2019, more than three years after the date on which the last invoice was received being 3 March 2016;

1.6

Therefore the plaintiff's claim has been extinguished by prescription in terms of section 11(d) of the Prescription Act 68 of 1969."

7.

It will be noted from the special plea that proper service in terms of Rule 4 was not placed in issue. It however became an issue during argument before me.

8.

Ms Carstens, who appeared for TNC, contended that despite the plaintiff being aware of the address of the principal place of business of TNC, as can be gleaned from the Particulars of Claim, the plaintiff elected to serve on the domicilium citandi et executandi chosen by the first defendant who in turn only handed the summons to TNC on 8 March 2019. The argument is further that TNC was not even a party to the SLA but had entered into its own agreement with the plaintiff.

2022 JDR 1976 p4

Williams J

9.

As mentioned, issues complained of in the above paragraph were not raised in the...