SA Boatyards CC (t/a Hout Bay Boatyard) v The Lady Rose (Formerly known as the Shiza)

• Jurisdiction: South Africa
• Judge: Scott J and Kühn J
• Judgment Date: 20 May 1991
• Hearing Date: 26 April 1991
• Court: Cape Provincial Division

Scott J:

F This is an exception to a claim in reconvention in an action in rem instituted in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983 ('the Act').

It is common cause that in November 1989, and at Hout Bay in the Cape, the plaintiff and one Blake, who is the owner of a 'ski-boat' called Lady Rose, entered into an oral agreement in terms of which the G plaintiff undertook to effect certain repairs to 'the vessel' (which is how it was described in the pleadings). The plaintiff carried out certain work on the vessel and thereafter, when Blake failed or refused to pay the plaintiff's charges in the sum of R2 123, the latter caused the vessel to be arrested and an action in rem to be instituted in terms H of s 3(4) of the Act. Although the Lady Rose is no more than a 'ski-boat', it is clearly a 'ship' within the meaning of s 1(1)(v) of the Act. Similarly, and notwithstanding the small amount of the claim, it is common cause that the claim is a 'maritime claim' within the meaning of s 1(1)(ii)(m). A notice of intention to defend the action was delivered and, although the notice does not state on whose behalf it was I given (cf Admiralty Rule 6(2)), it is common cause that it was given on behalf of Blake and that accordingly he was the party appearing to defend the action.

In due course, a special plea, a plea on the merits and a claim in reconvention were filed. In the special plea the Court is requested in terms of s 7(1)(a) of the Act to decline to exercise its admiralty jurisdiction 'as the action can be more appropriately adjudicated upon J by a magistrate's

Scott J

A court'. An exception was taken to the special plea, but later withdrawn. In the plea on the merits it is admitted that the plaintiff had executed some work in terms of its obligations under the agreement, but denied that the remainder of the work had been properly carried out. The plea contains a tender in the sum of R800 in respect of one item of the work which is not the subject of dispute. The claim in reconvention is headed B 'Defendant's claim in reconvention'. The first paragraph reads, however:

'In terms of Rule 8 issued in terms of the Admiralty Jurisdiction Regulation Act, second plaintiff in the claim in reconvention is Les Blake, an adult male, the owner of the defendant vessel, residing at 17 Quellerie Street, Welgemoed, Bellville.'

C The remaining paragraphs contain, inter alia, allegations that, as a result of the plaintiff's breach of the oral agreement, Blake suffered damage in the sum of R2 300, being the cost of rectifying the plaintiff's defective work. The document ends with the following prayers:

'Wherefore second plaintiff claims:

(1)

D payment of the amount of R2 300;

(2)

interest thereon at the rate of 18,5% a tempore morae ;

(3)

costs of suit.'

I mention in passing that the basis on which the sum of R2 300 is claimed is far from clear. If Blake were to be paid the sum of R2 300 by the plaintiff, the result would seem to be that he would end up by E having the work done for a total of only R800, being the amount tendered in the plea. This criticism of the claim in reconvention, however, need not be considered at this stage.

Exception is taken to the claim in reconvention on the ground that the party bringing the claim, namely Blake, has no locus standi in judicio to do so. In elaboration, the plaintiff states in its notice of F exception:

'1.

Plaintiff's action is an action in rem against the defendant vessel.

2.

Rule 8 of the Rules regulating the conduct of Admiralty proceedings does not permit a party other than the defendant in the proceedings to bring a claim in reconvention.

3.

The counterclaim is brought by Les Blake who is alleged to be G the owner of the...