MAHOMED & SON v MAHOMED 1959 (2) SA 688 (T)

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MAHOMED & SON v MAHOMED 1959 (2) SA 688 (T)

1959 (2) SA p688

Citation

1959 (2) SA 688 (T) Transvaal Provincial Division Galgut J and Steyn AJ April 1, 1959 April 1, 1959 Link to Case Annotations

Court

Judge

Heard

Judgment

Annotations

Flynote : Sleutelwoorde
Magistrate's court - Civil proceedings - Plea based on sec. 40 of Act 32 of 1944 - Splitting of 'substantive claims' - Meaning of - Costs - Attorney and client costs - When granted - Counsel - Point of law not difficult - Costs of only one counsel allowed.

Headnote : Kopnota G In order to succeed on a plea based on section 40 of the Magistrates' Courts Act, 32 of 1944, the defendant must show that there was a splitting of claims and also that the plaintiff had had in mind the object of recovering the sum due to him in more than one action. If goods are sold by a merchant to his customer as a result of different sales on different occasions, sometimes months apart, the merchant, in H order to recover, would have to prove each individual contract of sale and each delivery of goods pursuant to such a contract. He would have to prove different facts for each sale and each delivery. Each would therefore be a separate cause of action. The Court, on appeal, awarded attorney and client costs to a plaintiff in a magistrate's court, now appellant, where it appeared that the defendant, now respondent, had deliberately employed delaying tactics and that his conduct up to a certain stage had been vexatious and an abuse of the process of the court, but allowed the costs of only one counsel as the point of law involved was not difficult.
1959 (2) SA p689

GALGUT J Case Information Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment. O. Rathouse, Q.C., (with him I. Mahomed), for the appellant. J. J. Strydom, for the respondent: The amount due and payable in respect of purchases made from day to day on an open running account constitutes A a 'substantive claim' as provided for in sec. 40 of the Magistrates' Courts Act, at the date of issue of a summons in which claim is made for the whole amount or part thereof. 'Cause of action' in such a case arises from the implied understanding between purchaser and seller that if claim is made the whole amount then due and payable should be claimed B in one summons, see In re Aykroyd; Grimbly v Aykroyd, 1 Ex. 479; 154 E.R. 204. The intention to split the claim is established on the facts. Judgment GALGUT, J.: This is an appeal from a judgment of the magistrate of Pietersburg. It appears that on the 1st October, 1957, the appellant (to C whom I will refer as the plaintiff) who is a wholesale merchant, issued summons against the respondent (to whom I will refer as the defendant) who is a general dealer for the sum of 65 17s. 6d. The summons as amended and the further particulars to that summons clearly show that this amount is for goods which were

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sold and delivered by the plaintiff D to the defendant in the months of October, November and December 1956. There are two further claims, the first being for the sum of 3 15s. 8d. being interest at the agreed rate of 10 per cent per annum from the due date of payment for these goods to the date of issue of summons and the other being for interest at the same rate from the date of issue of summons to date of payment.
E Originally no appearance was entered to defend and judgment by default was entered. An application to rescind that judgment was made and that application was granted. After the rescission of the judgment the plaintiff made an application for summary judgment. To that application the defendant filed an answering affidavit. In that answering affidavit which is dated 29th October, 1957, and in the previous application for F rescission of the judgment he set out his defences. These were, firstly, that he denied that he had during the period October to December 1956 purchased any goods whatsoever from the plaintiff and secondly he denied that during the period mentioned any goods were delivered by the plaintiff to him. He went on to deny that he owed the G plaintiff money for any cause whatsoever and then concluded his answering affidavit by saying

'(c) In or about March 1957 I was indebted to plaintiffs in an amount in respect of goods sold and delivered by plaintiffs to me and in or about the said month plaintiffs issued a summons against me for the amount owing by me to them in respect of such goods and I duly paid the amount of the summons and costs and I thereby finalised all transactions between myself and plaintiffs!'

The defences set out in the answering affidavit and the application to rescind were repeated in the defendant's plea and on the pleadings as they then stood the parties went to court. At the hearing an application for an amendment of the plea was made. That application was granted and a further alternative was then added to the defendant's plea. That alternative read:
H

'Defendant pleads that this court has no jurisdiction in that plaintiffs' claim 1959 (2) SA p690

GALGUT J
now before it was split with the object of recovering the same in more than one action and that this action is the second action brought with such intention'.

This alternative plea is based on sec. 40 of the Magistrates' Courts Act which reads:
'A substantive claim exceeding the jurisdiction may not be split with A the object of recovering the same in more than one action if the parties to all such actions would be the same and the point at issue in all such actions would also be the same.'

On the 2nd March, 1957, some 7 months before the summons in the present case the plaintiff sued the defendant for 186 8s. 1d. for goods sold B and delivered during the months May, June and September 1956. This summons did not include the amounts the subject-matter of the present matter. The magistrate in fact so found and in his judgment says
'Evidence of the sale and delivery of the goods was adduced by plaintiff. No evidence was led in the case for defendant. The evidence established the sale and non-payment for the goods. It is therefore held that the defendant owes the plaintiff the amount sued for.'

The plaintiff in evidence stated that he had over a long period of time granted the defendant credit for 120 days. That this was not pursuant to a specific agreement, but was an understood arrangement which had grown over the 15 years in which they had had dealings with each other. The magistrate held that the plaintiff had failed to establish any contract D in terms of which credit for 120 days was granted to the defendant. Mr. Rathouse, who appears for the plaintiff, the appellant in the case, has challenged that finding. The evidence given by the plaintiff and which has not been contradicted by the defendant reads
C

'The 120 days arrangement with defendant was not made specifically - it was merely understood. Because he was a good customer I did not press E him for payment within 120 days. I could claim payment at any time. I never told defendant specifically about the 120 days. The was my arrangement as far as all my sales to defendant are concerned.'

Later he says:
'In view of the terms of payment I would not have demanded payment before the 120 days have elapsed in absence of exceptional circumstances. Defendant has done business with me on basis of 120 days F for a considerable time - for years.'

It seems to me that the magistrate was not justified in coming to the conclusion that the plaintiff was not correct in assuming that there was a standing arrangement for credit for 120 days. The magistrate in dismissing the plaintiff's claim and granting judgment
G

for the defendant did

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so on the plea based on sec. 40. He says:

'Although the amount in question consists of smaller amounts due on different transactions, it would appear that the dealings are the same as the ordinary tradesman's bill for goods sold, where there are several items. It appears, therefore, that the claims in both summonses should have been included in one summons, and that the claims have been split, apparently with the object of bringing the claims within the H jurisdiction of this court. In view of this conclusion, and the provisions of sec. 40 of the Magistrates' Courts Act 1944, plaintiff must fail in his action, and is held to have abandoned the part sued for in this case. In these circumstances consideration of the claim for interest is unnecessary. Judgment was therefore given in favour of the defendant with costs.'

The grounds of appeal in this matter read:

'(a) The magistrate erred in fact in finding on the evidence adduced that plaintiff was entitled to have claimed all the amounts claimed in the present action when summons was issued by plaintiff against defendant during March, 1959 (2) SA p691

GALGUT J
1957, and should have found that plaintiff was entitled, at that stage, to have claimed payment only in respect of the goods sold and purchased by defendant on the 3rd October, 1956, and 24th October, 1956.'

As I have already stated it seems to me that the magistrate was not entitled to reject the plaintiff's assumption that the defendant was A entitled to 120 days credit. If I am correct in that view then there was only an amount of 19 18s. 3d. i.e. for the goods purchased on the 3rd and 24th October, 1956, on the date on which the first summons was issued. The plaintiff's evidence suggests that he was not in the habit of suing the defendant immediately after the lapse of the 120 days. That being so even though 19 18s. 3d. was due when the first summons was B issued in March 1957 it is not surprising that it was not then claimed. The second ground of appeal reads:
'The magistrate erred in law in upholding the alternative plea filed by defendant that there had been a splitting of claims and should have held that there was no splitting of claims and that: (iv) each order for goods forming the subject matter of the summons in the above action constitutes a separate cause of action C entitling the plaintiff to claim thereon.'

Sec. 40 requires that there must be 'a substantive claim' which has been split and that 'the point at issue' in the separate actions must be the same. In Darby v Levinsohn, 1926 NPD 146 at p. 147, it was held that if the plaintiff's claim was based on separate causes of action it did D not fall within the terms of sec. 40. See also Cohen v Sherman & Co., 1941 T.P.D. 134. In McKenzie v Farmers Co-operative Meat Industries Ltd., 1922 AD 16 at p. 23, the following definition of cause of action was adopted
'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove E each fact, but every fact which is necessary to be proved. It has been suggested to-day in argument that this definition is too broad, but I cannot assent to this, and I think the definition is right'.

It therefore seems clear that if goods are sold by a merchant to his customer as a result of different sales on different occasions, sometimes months apart, a plaintiff, in order to recover, would have to prove each individual contract of sale and each delivery of goods F pursuant to such a contract. He would have to prove different facts for each sale and each delivery. Each would therefore be a separate cause of action. For these reasons I am of the view that there has been no splitting of 'a substantive claim' in the present case. Support for this view is also obtained from the case of Spies v Hansford & Hansford G Ltd., 1940 T.P.D. 1 at p. 9. 'The point at issue' would also be different in respect of each sale of goods and the separate deliveries. The third ground of appeal reads:
'The magistrate erred in fact in finding that plaintiff had in mind the object of recovering the sum due to him in more than one action and that the splitting, if any, occurred through a desire on the plaintiff's part to bring the claim within the jurisdiction of the magistrate's court and H should have found that there was no evidence whatsoever to indicate such state of mind on the part of plaintiff.'

There is, in my view, no evidence to show any intention to split the claim in order to enable the plaintiff to recover his money in separate actions in the magistrate's court. However, as I have already stated, the plaintiff was justified in assuming that there existed an arrangement for 120 days credit. On that basis the greater portion of the amount
1959 (2) SA p692

GALGUT J

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presently claimed could not have been included in the first action. In order to succeed on a plea based on sec. 40 the defendant must show that there was a splitting of claims and also that he had in mind the object A of recovering the sum due to him in more than one action. (See de la Koski v Bredell, Brown & Co., 1911 T.P.D. 114.) He has failed in both these requirements. For these reasons we are of the view that the magistrate erred in not granting the plaintiff judgment in the sum of 65 17s. 6d. as claimed. I come now to deal with the second and third claims, that is the claims for interest. There is no serious dispute nor was there any serious dispute in the magistrate's court on the plaintiff's right to interest as claimed and the plaintiff is entitled to judgment for those amounts as well.
B

Mr. Rathouse urged that costs should be awarded to plaintiff on the C attorney and client scale. He quoted authority to the effect that where a debtor deliberately delays matters and has not got a bona fide defence the Court will aid the litigant so delayed and grant attorney and client costs. He has referred us to passages in the evidence in this case which clearly indicate that the defendant was deliberately employing delaying D tactics. The defence which eventually succeeded before the magistrate was only raised at the hearing. The fact that after that defence was raised the defendant may well have been bona fide when relying on that defence cannot, Mr. Rathouse urges, affect the defendant's conduct prior to the date of hearing which was a deliberate plan to keep the plaintiff out of his money and delay the action. He says this is strengthened by E the fact that the defendant himself did not give evidence nor did he call any witnesses. It will be remembered that when the defendant resisted the application for summary judgment he already then took up the attitude that he had not purchased the goods, that the goods were not delivered to him and that the payment which he made in March covered payment for all goods previously delivered. That was repeated in the F plea. At no stage did he lead any evidence to support that view. It is clear from the record that he could not have done so. That being so, there can be no doubt that the defendant did deliberately employ delaying tactics and that until the further alternative plea was filed, that is on the first day of hearing, his conduct was vexatious and an G abuse of the process of the court. That being so, we are of the view that the plaintiff is entitled to succeed in his application for costs on the attorney and client scale. During the argument the Court asked whether certain of the documents which had been included in these records were necessary and it was freely conceded by Mr. Rathouse, on behalf of the plaintiff, that all H those documents appearing from p. 59 to p. 80 were unnecessary and plaintiff conceded he could not make any claim for costs in that regard. Mr. Strydom, who appears for the defendant, has asked that if the Court should uphold the appeal that the costs of only one counsel be allowed. The facts in this case fall within a very small compass and do not present any difficulty. In view of the decisions quoted to us by Mr. Rathouse and in view of the wording of sec. 40 it seems
1959 (2) SA p693

GALGUT J to us that the point of law involved in this case was not difficult. For that reason we have come to the conclusion that costs of only one counsel should be allowed. In the result, therefore, the appeal succeeds and the judgment of the magistrate is altered to one of judgment for the plaintiff in the sum of A 65 17s. 6d. plus 3 15s. 8d. being the interest due from the due date of payment to the issue of the summons plus 10 per cent per annum on the sum of 65 17s. 6d. from the date of service of summons, namely, 3rd October, 1957, to date of payment. The plaintiff will also be entitled to his costs in the magistrate's court on the appropriate scale and as B between attorney and client. In so far as the costs of appeal are concerned those will be awarded to the plaintiff as between party and party, save that the costs in respect of the documents from pp. 59 to 80 will not be granted to the plaintiff. The costs of only one counsel are allowed.
C

STEYN, A.J., concurred.

Appellant's Attorneys: Schwartz & Goldblatt. Respondent's Attorneys: Haasbroek & Boezaart.
D

2005 Juta and Company, Ltd.

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