Shell SA Marketing (Pty) Ltd v Wasserman t/a Wasserman Transport

• Jurisdiction: South Africa
• Judge: Rampai J
• Judgment Date: 05 June 2008
• Citation: 2009 (5) SA 212 (O)
• Docket Number: 681/2004
• Hearing Date: 31 January 2008
• Counsel: PJ Loubser for the applicant (plaintiff). C Snyman for the respondent (defendant).
• Court: Orange Free State Provincial Division

Rampai J:

[1] These are interlocutory proceedings. The matter was brought by way F of an application in terms of rule 30(1). The application was the plaintiff's response to the defendant's proposed amendment of its plea and the introduction of a counterclaim. The relief sought is to have the proposed amendment declared an irregular step and the notice thereof set aside. The defendant opposes the plaintiff's application.

[2] Briefly stated, the factual background is as follows: The plaintiff sued G the defendant in this court under case No 681/2004. The summons was issued and served on the defendant. The defendant opposed the main claim. The defendant's plea was delivered on 22 June 2004. No counterclaim was simultaneously filed with the defendant's plea (rule 24(1)). Litis contestatio was reached in due course. H

[3] On 14 December 2007 the defendant delivered a notice of amendment (rule 28). The proposed amendment concerned the defendant's plea. However, the amendment was drafted in such a manner that the defendant's plea would, after its amendment, effectively accommodate the introduction of a counterclaim. I

[4] On 18 December 2007 the plaintiff delivered notice of its objection (rule 30(2)(b)). The defendant was afforded an opportunity of removing the cause of the plaintiff's complaint. The attitude of the defendant apparently was that the plaintiff's complaint was groundless. The defendant did not do anything to remove the cause of the plaintiff's J

Rampai J

A complaint. The prescribed ten-day period elapsed. The cause of the complaint remained. The plaintiff then initiated these proceedings on 22 January 2008.

[5] In the notice of amendment of its plea dated 14 December 2007 the defendant alleged that from 1 December 1999 the plaintiff supplied the B defendant with certain goods and that every month the plaintiff calculated the amount owing by the defendant to the plaintiff in respect of diesel, lubricants and tollgate charges. On the 15th of each month the plaintiff then recovered such amount through a direct debit order against the defendant's bank account. In terms of the agreement the plaintiff was C obliged to furnish the defendant with written monthly statements or reports of the goods supplied to the defendant by the plaintiff during the previous month.

[6] As a result of the plaintiff's failure to provide such written monthly statements, the proposed amendment goes on, the defendant was not in D a position to control or to verify the monthly amount the plaintiff had debited against the defendant's bank account. During November 2005 the defendant received, for the first time, written monthly statements of account from the plaintiff, although they were incomplete. The defendant then embarked upon the exercise of reconciling the amounts E the plaintiff recovered directly from its bank account as against the quantities of the goods supplied to the defendant by tanker or truck. After proper reconciliation of the plaintiff's documentation the defendant discovered that during the period of June 2003 to July 2003 the plaintiff had recovered from its bank account the sum of R364 601,51 more than the plaintiff was entitled to. This then is the sum F of money the defendant wants to recover from the plaintiff by way of a counterclaim.

[7] Together with the notice of amendment of the plea, the defendant also delivered the proposed counterclaim as referred to in paras 1 and 2 of the notice of amendment. The counterclaim is an eight-page G pleading. I shall try as best I can to condense it. The defendant avers that the parties entered into a written agreement at Harrismith on 1 September 1999, whereby the plaintiff supplied the defendant with certain goods and the defendant paid the plaintiff by way of a debit order. The plaintiff failed to provide the defendant with written monthly reports of H how the amounts debited against the defendant's bank account were made up and...