Simmons, NO v Gilbert Hamer & Co Ltd

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Caney J, Henning J and Harcourt J
• Judgment Date: 19 December 1962
• Citation: 1963 (1) SA 897 (N)

Caney, J.:

The appellant, who was appointed judicial manager on 20th F December, 1958, of Consolidated Portland Cement Co. Ltd., brought an application in the Durban and Coast Local Division claiming to vindicate certain fabricated steel from the respondent. The case arises from a contract made between the cement company and the respondent in correspondence in August and September, 1947, by which the respondent undertook to supply, deliver and erect for the cement company the G necessary steel work for the construction of a factory on land near Port Shepstone. In or about January, 1948, building operations were suspended in consequence of the state of the cement company's finances, and never resumed; the applicant sold the land on which the building was being erected, on 19th February, 1960.

H The applicant made the categorical averment in his application that, during the period from 30th September, 1947, until about 19th January, 1948,

'the respondent fabricated at its premises in Durban the said 345,723 1bs. of steel for the said company, appropriated the said fabricated steel for the said company, and had same available for delivery to the said site for erection on the said buildings'.

Because of the suspension of building operations, the steel was not delivered to the site but remained in the respondent's possession. The applicant, we were told, claims that it was stored by the respondent for the cement company in circumstances which passed title in it to

Caney J

the cement company by constitutum possessorium. Later, it was averred, (and the respondent did not dispute), much of the steel was disposed of and used by the respondent in another contract and its own building; a portion remains unaccounted for.

A On the 13th November, 1959, the applicant's attorneys demanded the immediate delivery of the steel in question from the respondent, stating that

'the steel is the property of our client . . . left in your possession'.

The respondent replied by its attorneys on 14th November

'Our clients do not have nor have they ever had in their possession any B steel belonging to your clients,'

and they indicated that the respondent would resist any legal proceedings. On 14th August, 1961, the appellant launched his application in the Court a quo. In the usual course, opposing affidavits and answering affidavits were filed; then, at the commencement of the hearing, the respondent obtained leave by consent to file a fourth set C of affidavits. On behalf of the applicant, the present appellant, application was then made in limine to file a fifth set of affidavits. The application was successfully opposed. The affidavits applicant wished to put on record consisted of one by Mr. A. L. Owen concerning, principally, discussions which he says he had with Mr. Lea, the managing director of the respondent, between the 19th January and 12th February, D 1948, and 17th March, 1952. In conjunction with Mr. Owen's affidavit, the applicant sought to put on record affidavits by two members of the firm of attorneys representing him, for the purpose of explaining why Mr. Owen's affidavit had not been filed with the applicant's originating set of affidavits.

E On 17th June, 1959, the applicant had obtained an order of Court for a commission of enquiry under the provisions of secs. 155 and 194 of the Companies Act, 46 of 1926, in relation to claims by two concerns against the cement company (not relevant in the present case) and in relation to the claim by that company against the present respondent. Amongst the persons examined in the enquiry were Messrs. T. R. Lea, already F mentioned, A. E. Hodgson, the secretary of the respondent from the 1st September, 1946, until 5th September, 1958, and W.L. S. Robinson, the secretary of the respondent from the last-mentioned date up to the time of the application. In the course of their evidence in the enquiry these gentlemen made statements which the applicant construes as admissions of G facts favourable to his case, in particular, of conduct on the respondent's part from which the inference is to be drawn that the steel was the property of the cement company. He annexed to his application extracts from their evidence and made the submission

'that the said evidence is admissible against the respondent in these proceedings'.

H The submission was successfully challenged by the respondent in the Court a quo by way of application in limine to strike out from the application the extracts I have mentioned and references made to them in the affidavits. In his answering affidavit the applicant added further extracts from evidence at the enquiry and these also were struck out in limine.

The situation then was that the applicant had failed to put on record the affidavit of Mr. Owen and the extracts of evidence given by Messrs.

Caney J

Lea, Hodgson and Robinson at the enquiry had been struck out from his application. That being the situation, counsel informed the Court that he was unable to present an argument based upon the papers, as they now A stood, in support of the relief prayed, and so the application was dismissed with costs. The appeal is aimed at reversing the decisions on the two points argued in limine, and, if the appellant succeeds on these, or either of them, he seeks a setting aside of the dismissal of the application, with a view to the application being remitted to the Court a quo to be heard on its merits. He concedes that if Mr. Owen's B affidavit is admitted to the record, the respondent is entitled to an opportunity to reply to it.

In order to determine the two questions it is essential to appreciate the grounds of the applicant's claim against the respondent and to review the general tenour of the affidavits. I have already cited the passage from the applicant's originating affidavit, that the respondent C fabricated the steel, appropriated it for the cement company and had it available for delivery to the site for erection on the buildings. He goes on to say that the respondent stored the steel for the cement company and that the denial in the letter of 14th November, 1959, was untrue. He continues

D 'the respondent at all times material hereto thereafter acknowledged that the said steel was the property of the said (cement) company',

and he refers more particularly to extracts from the evidence of Mr. Lea at the enquiry. This, along with the evidence of Messrs. Robinson and Hodgson, he has already submitted,

'is admissible against the respondent in these proceedings'.

E The applicant contends that the cement company paid for the steel, but this the respondent denies.

Mr. Rosenberg, who appeared for the appellant, said he was not pressing for the admissibility of the evidence of Messrs. Robinson and Hodgson, but confining this part of his case to the evidence of Mr. Lea. He F contended that this was admissible against the respondent, but I agree with my Brother HARCOURT, for the reasons he states, that this contention is ill-founded. Mr. Miller, who appeared with Mr. Rosenberg, submitted an argument based on the Evidence Act, 14 of 1962, contending that the learned Judge ought to have admitted the statement of Mr. Lea's evidence G under the provisions of that Statute; alternatively Mr. Miller made an application to this Court to admit that statement on appeal. I agree with my Brother HENNING, and for the reasons he states, that the Evidence Act does not apply in the circumstances of the present case.

At this point it is appropriate to make a selection of typical extracts H from the evidence of Mr. Lea at the enquiry in order to indicate the nature of the admissions the appellant relies upon for use against the respondent and also for the purpose of comparing the case, so far as it is based on Mr. Lea's evidence, with the contents of the affidavit of Mr. Owen. I cull the following extracts from those cited in the applicant's originating affidavit and the annexure Z consisting of extracts from Mr. Lea's evidence at the enquiry.

(The learned Judge set out the extracts and proceeded.)

Upon this evidence given at the enquiry by Mr. Lea and other

Caney J

passages in his evidence, along with the evidence relating to the contract between the cement company and the respondent, and also the latter's records and the surrounding circumstances, the applicant it seems intends to ask the Court to hold that title in the steel passed to the cement company.

A For the respondent, Mr. Lea says, in his affidavit opposing the application:

'Until demand was made by the applicant's attorneys for the immediate delivery of the steel in question by letter dated the 13th November, 1959 (which was the first demand for delivery of the steel), neither the respondent nor I had received legal advice as to respondent's rights in regard to this steel. Upon the receipt of that letter, legal advice was B taken, and the respondent was then advised that the steel was not the property of, nor had ownership passed to, the (cement) company. Until that time, I believed that the (cement) company had some rights in the steel, but had never applied my mind to the precise definition of those rights.'

Although he admits that the respondent fabricated the steel at its C premises in Durban and had it available for delivery to the site for erection on the buildings, Mr. Lea denies that it was appropriated to and fabricated for the cement company and denies the respondent stored it for the cement company. He goes on

'So far as I am aware, the respondent has not at any time acknowledged that the said steel was the property of the (cement) company. Some of its officials may have thought so, and may have expressed that opinion. I submit that, even if the respondent had so acknowledged, in mistake of D its legal rights, that would not be conclusive as (to) the ownership of the steel.'

Mr. Lea adds:

'The respondent in fact...