Non-existent plaintiff – Dealing with misdecriptions in citations

September 1st, 2013

By Fareed Moosa

In HUV Cape Spice v Hotspice Sauces CC (WCC) (unreported case no 22227/2010, 10-5-2011) (Louw J) the respondent, Hotspice, was placed under provisional liquidation. This order was subsequently made final by Moses AJ in HUV Cape Spice v Hotspice Sauces CC (WCC) (unreported case no 22227/2010, 2-12-2011). The applicant was a sole proprietor owned by Plotz, a German citizen, whose locus standi was founded on a judgment awarded in the Western Cape High Court by Le Grange J in HUV Cape Spice v Hotspice Sauces CC (WCC) (unreported case no 6650/04, 9-1-2009). That judgment was for damages arising ex contractu and was awarded to the plaintiff cited therein as ‘HUV Cape Spice, a private company with limited liability duly incorporated and registered as such, in accordance with the companies law of Germany, with registration number 1804626808 and having its principal place of business at AM-Hafen 3, 25548, Kellinghusen, Germany’. Plotz testified that he was a director of the plaintiff company and represented it in its contractual dealings with Hotspice.

After Le Grange J handed down judgment it became known that the plaintiff was non-existent. No attempt was then made to amend the plaintiff’s citation. In his founding affidavit in the liquidation application, Plotz averred that his sole proprietorship was the party to the contract forming the subject matter of the trial before Le Grange J and that it was, thus, the true plaintiff. He contended that the plaintiff’s citation as a company was a misdescription. He averred that, in accordance with uniform rule 14, it ought to have been cited as a sole proprietorship registered under German law (for a discussion on this rule, see Ex-TRTC United Workers Front and Others v Premier, Eastern Cape Province 2010 (2) SA 114 (ECB) and the authorities cited therein).

Plotz insisted that he was clothed with locus standi for purposes of the liquidation application since his sole proprietorship had a direct and substantial legal interest against Hotspice (see Trinity Asset Management (Pty) Ltd and Others v Investec Bank Ltd and Others 2009 (4) SA 89 (SCA)). He contended that the damages awarded by Le Grange J gave rise to a vinculum juris (see Wilde and Another v Wadolf Investments (Pty) Ltd and Others 2005 (1) SA 354 (W) at 357I – 359F), which Louw J ought to regard as being in favour of the sole proprietorship, despite its details not being formally pleaded as part of the plaintiff’s citation in the summons in the HUV Cape Spice case. This contention found favour with Louw J, who held at paras 13 and 14:

‘In this case the evidence demonstrates that it was the business as a sole proprietorship that acted throughout as the plaintiff in the action and that the description of the plaintiff as a private company with a limited liability duly incorporated and registered as such in Germany, was in fact, nothing more than an incorrect description of the entity HUV Cape Spice, a business conducted under that name and owned by Plotz. The issue in this application is whether the applicant is the judgment creditor in terms of the judgment of Le Grange J. The evidence in this case shows that this is indeed the case and that the applicant is in fact the same entity as the plaintiff and is therefore, the judgment creditor. The applicant therefore has the necessary locus standi to bring this application … .’

The gist of Louw J’s rationale is contained in the following extract (at para 12):

‘The description of a party to a suit does not immutably determine the nature and identity of a party. The law reports are replete with instances where the incorrect description of a party was allowed, in the absence of prejudice to the other parties involved, to be changed to reflect the true state of affairs. See for instance, Four Tower Investments (Pty) Ltd v André’s Motors 2005 (3) SA 39 (NPD).’

In effect, Louw J granted an order substituting the sole proprietorship as the judgment creditor in the HUV Cape Spice case. Crucially, this was done notwithstanding the absence of an application for leave to amend the incorrect citation in that action.

This decision is significant because it serves as authority for the proposition that – in any proceedings where a judgment is sought to be enforced, whether by liquidation or otherwise – if the presiding officer is satisfied that the judgment concerned contains a misdescription of a litigant owing to its incorrect citation in the pleadings filed in the case to which the judgment relates, then it shall be competent for such officer, even in the absence of an application for leave to amend those other pleadings, to receive evidence on affidavit as regards the true identity of the intended litigant in such other action and then to determine same authoritatively.

By virtue of the doctrine of stare decisis (see Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another 2011 (4) SA 42 (CC)) the principle established by Louw J has precedential value, except to the extent that it is found to be wrong (see Collett v Priest 1931 AD 290) because, for example, it was arrived at on ‘some manifest oversight or misunderstanding’ (see Bloemfontein Town Council v Richter 1938 AD 195 at 232 cited with approval in Harris and Others v Minister of the Interior and Another 1952 (2) SA 428 (A) at 452). This article questions the correctness of this principle and, with respect to Louw J, submits that this principle ought not to be followed by a subsequently constituted court.

Judicial proceedings are governed by the rules of court that ‘are designed to ensure a fair hearing and should be interpreted in such a way as to advance, and not reduce, the scope of the entrenched fair trial right (s 34 of the Constitution …)’ (see DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) at 301H). The Supreme Court Act 59 of 1959 defines ‘plaintiff’ as ‘includes any petitioner or other party who seeks relief in civil proceedings’. See also the definition of ‘party’ in uniform r 1. Uniform r 17(1) provides that ‘every person making a claim against any other person may sue out a summons or a combined summons’ and r 17(4) prescribes the manner in which a plaintiff is to be identified. Uniform r 18(4) states that ‘every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim’.

The object of these rules is to ensure that a plaintiff furnishes sufficient details so as to prove its locus standi in judicio (see SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA 541 (N) at 543C; and Spoornet v Watson 1994 (1) SA 513 (W) at 514G). This position applies equally to proceedings governed by the magistrates’ courts rules (see the DF Scott (EP) (Pty) Ltd case at 301I – 302A).

Where a pleading contains an error, this can be rectified only by amendment effected by adhering to the prescribed procedure (see uniform rule 28 and magistrates’ courts rr 7 and 55A).

In order to ensure that the real disputed issues are defined in pleadings and ventilated in court, a misdescription of a litigant may, in certain circumstances, be rectified. In the Four Towers Investments case a full Bench appeal court (per Galgut DJP) held (at 43G – H) that ‘an application for amendment will always be allowed unless it is mala fide or would cause prejudice to the other party which cannot be compensated for by an order for costs or by some other suitable order such as a postponement. One of the grounds upon which it has been held that an amendment will cause prejudice that cannot be compensated for is when the late grant of the amendment will deprive the opposing party of a defence which would otherwise have been available to it.’ An example of such defence is prescription (see Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A)).

Where a misdescription involves the citation of a persona that exists but is not the true creditor or debtor, two possibilities arise:

  • First, the misdescription may consist of using the wrong name for the party concerned. In such instances an amendment is permissible, since this is not tantamount to a substitution of that party (see Mutsi v Santam Versekeringsmaatskappy Bpk en ’n Ander 1963 (3) SA 11 (O); Embling and Another v Two Oceans Aquarium CC 2000 (3) SA 691 (C); Golden Harvest (Pty) Ltd v Zen-Don CC 2002 (2) SA 653 (O); Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd 2001 (4) SA 211 (W)).
  • Secondly, where the wrong party sued or was sued, an amendment may be refused since a substitution of the wrong party with the correct creditor or debtor is sought to be effected. In such instances one is not dealing with a misdescription stricto senso but rather with an instance where the real party is not before the court (see Associated Paint and Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit 2000 (2) SA 789 (SCA); Hip Hop Clothing Manufacturing CC v Wagener NO and Another 1996 (4) SA 222 (C); L & G Cantamessa v Reef Plumbers, L&G Cantamessa (Pty) Ltd v Reef Plumbers 1935 TPD 56).

Where a misdescription involves the citation of a non-existent persona, such pleading is a nullity ab initio. This is because such persona lacks legal personality and therefore cannot sue or be sued (see Friends of the Sick Association v Commercial Properties Pty Ltd and Another 1996 (4) SA 154 (D&CLD); Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd intervening) 1994 (2) SA 363 (C) at 369J – 370A; Van Heerden v Du Plessis 1969 (3) SA 298 (O) at 304A – G). In the Four Tower Investments case Galgut DJP stated that a process is not invalid in every instance where a litigant is a non-existent party. To this end the court held, at 45B – C, that ‘[w]hether a process is a nullity or not will depend on the facts of the case, and on the authorities it seems that it may be a question of the degree to which the given process is deficient. As I see it, however, the fact on its own that the citation or description of a party happens to be of a non-existent entity should not render the summons a nullity’. Galgut DJP concluded (at 47E) that ‘if the citation of a party is nothing more than a misdescription, it should not matter whether the incorrect citation happens on the face of it to refer to a non-existing entity or indeed to an existing but uninvolved entity.’

In casu the court found that the appellant’s incorrect citation as a private company instead of as an existing close corporation was, on the facts, a mere misdescription caused by its attorneys relying on the appellant’s incorrect description in the lease agreement that formed the basis of the suit. Accordingly, Galgut DJP allowed the application for leave to amend.

In the HUV Cape Spice case, Louw J (at para 12) relied on the principle enunciated by Galgut DJP at 47E as the basis for finding that the plaintiff’s incorrect citation in this case amounted to a misdescription capable of being rectified. For present purposes I shall assume this finding to be correct. Consequently, and without effecting a formal amendment to the citation of the plaintiff in that action, the judge held that Plotz’s sole proprietorship was, for all legal purposes, to be regarded as the plaintiff and judgment creditor in that action. On this basis, he held that Plotz had locus standi in the liquidation application.

In so doing, Louw J effectively metamorphosed the nature and identity of the non-existent company that actually pleaded as plaintiff with that of a sole proprietorship not referred to at all in the pleadings. It must also be borne in mind that the character of the newly introduced party is in law wholly different to that of the substituted juristic entity. With respect, this decision is wrong.

In as much as a misdescription of a litigant cannot be rectified, except in the manner prescribed by the court rules, South African law does not permit a court to recognise any person as party to legal proceedings except someone who is cited as a litigant thereto in the process initiating such legal proceedings (or any amendment thereto) (see Imperial Bank Ltd v Barnard NO and Others (unreported case no 349/12, 28-3-2013) (Mpati P)).

An analysis of Louw J’s judgment reveals that he failed to consider the degree of deficiency and prejudice caused to the other litigant by reason of the effective substitution, both of which are considerations emphasised by Galgut DJP in the Four Tower Investments case on which Louw J relied. This failure is no doubt attributable to the fact that, unlike Galgut DJP, Louw J was not seized with an application for leave to amend in which such considerations play a pivotal role.

In the Imperial Bank Ltd case at para 8, Mpati JA held that ‘a late amendment which has the effect of introducing a new cause of action or new parties would inevitably cause prejudice to the other party in the action, as it would defeat an otherwise good defence of prescription.’

At para 10 the judge went further and held that: ‘For prescription to be interrupted by service of a summons on the debtor, therefore, the entity claiming payment of the debt must be the creditor. Where the claimant cited in the process by which payment is claimed is not the creditor, service of the process will not interrupt prescription.’

The cause of action in the HUV Cape Spice case arose in or about 2003. Consequently, any application for leave to formally amend the plaintiff’s citation pursuant to the error regarding same being uncovered after Le Grange J handed down judgment in 2009 would in all probability have failed.

Finally, a cardinal shortcoming in Louw J’s decision is the failure to reconcile his decision with that of Galgut DJP in the Four Tower Investments case (at 43B – C) in which the latter was at pains to point out that a trial court is functus officio once judgment is granted so that only a court of appeal can grant leave to amend pleadings in circumstances where an error in the citation of a party is uncovered after judgment is handed down by the trial court.

I therefore submit that it was not within the powers of Louw J to grant an order having the effect of amending the misdescribed plaintiff in the HUV Cape Spice case and thereby effectively substituting Plotz’s sole proprietorship as the judgment creditor. His decision in this regard is therefore, with respect, unsound in law.

Fareed Moosa BProc LLB (UCW) LLM (Tax) (UCT) is an attorney and lecturer in the department of mercantile law at the University of the Western Cape.

This article was first published in De Rebus in 2013 (Sept) DR 22.