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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No:  20157/2014

In the matter between:

UTi SOUTH AFRICA
(PROPRIETARY) LIMITED

APPELLANT

and

TRIPLE OPTION TRADING 29 CC

RESPONDENT

Neutral citation: UTi South Africa v Triple Option Trading (20157/14) [2015]
ZASCA 101 (3 June 2015)

Coram:

Maya, Shongwe, Leach, Zondi JJA and Gorven AJA

Heard:

21 May 2015

Delivered:

3 June 2015

Summary:
Prescription – extinctive prescription – whether the appellant‟s
amendment had introduced a cause of action which had become
prescribed – no new cause of action introduced – claim not
prescribed. Special plea of lack of jurisdiction correctly dismissed.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Masipa J and
Bashall AJ sitting as court of appeal):
The appeal is upheld with costs.
The cross-appeal is dismissed with costs.
Paragraph 17 of the order of the court a quo is set aside and replaced by the
following:
„17.1 The appellant‟s appeal against the magistrates‟ court order upholding the
special plea of prescription is upheld with costs.
17.2 The order of the magistrates‟ court is substituted with the following order:
“Both special pleas are dismissed with costs.”‟

JUDGMENT

Zondi JA (Maya, Shongwe, Leach JJA and Gorven AJA concurring):
[1] This appeal, which is with the leave of the Gauteng Division of the High Court,
Johannesburg (Masipa J and Bashall AJ), concerns a special plea of prescription
together with the costs order against the appellant. The cross-appeal, which is also with
the leave of the court a quo concerns a special plea of jurisdiction. These issues arose in
the following circumstances.

[2] On 14 March 2007 the appellant sued the respondent in the Germiston
Magistrates‟ Court claiming a sum of R274 786,70. This amount was alleged to have
been the outstanding balance for certain customs clearing, forwarding and export agency

services rendered and disbursements incurred by the appellant on behalf of the
respondent from time to time, during the period 15 January 2005 to 16 May 2006,
pursuant to various agreements. The appellant annexed to its particulars of claim the
customs clearance letter of authority („the letter of authority‟); certain standard trading
conditions and various invoices. Properly construed, the agreements for services
rendered at the instance and request of the respondent were reflected in the invoices
annexed. The paragraph dealing with this was introduced by a number of paragraphs
which were largely superfluous and, if anything, rendered the particulars vague and
embarrassing. Further particulars that were delivered by the appellant to the respondent
in response to the latter‟s request for further particulars revealed that the two documents
put up by the appellant in support of some of the superfluous averments indicated an
agreement concluded in 2004 with Pyramid Freight (Pty) Ltd (Pyramid Freight) and not
the appellant. Further particulars also revealed that the appellant had, in fact, on 6
December 2004 bought Pyramid Freight‟s business assets and, in terms of the sale
agreement, had acquired all contracts to which Pyramid Freight was a party, which
existed before 1 August 2004.

[3] In the mistaken belief that its cause of action arose from the 2004 agreement
between Pyramid Freight and the respondent, the appellant amended its particulars of
claim on 22 July 2009 to reflect that the agreement was concluded between Pyramid
Freight and the respondent and that the appellant had derived its rights from this
agreement when it purchased Pyramid Freight. This was incorrect. The agreement
between the respondent and Pyramid Freight related to contracts which arose prior to 1
August 2004. Those on which the appellant sued were variously concluded between 15
January 2005 and 16 May 2006. The appellant and the respondent were direct parties to
these agreements. They had nothing to do with Pyramid Freight. The amendment to the
pleadings was therefore an exercise in futility. It replaced irrelevant averments with
alternative averments that were equally irrelevant to its claim.

[4] The respondent filed a special plea in which it contended that the appellant‟s
cause of action in the amended particulars of claim had prescribed. It alleged that a debt
for which the appellant sued became due and payable during the period 15 January 2005
to 16 May 2006. The respondent accordingly contended that the amendment introduced
a new cause of action which prescribed on 17 May 2009.

[5] The second special plea raised by the respondent was that the magistrates‟ court
did not have jurisdiction to determine the action. In support of that special plea, the
respondent referred to clause 36 read together with the non-variation clause of the
standard trading conditions (clause 33) of the agreement with Pyramid Freight which it
contended excluded it. Its contention was that the effect of clause 36 was to confer
exclusive jurisdiction on the high court. This clause provided that the respondent
consented to the „non-exclusive jurisdiction‟ of the high court in which Pyramid
Freight‟s head office was situated.

[6] These two special pleas were set down separately and argued in the magistrates‟
court before any other issues. The magistrates‟ court upheld both the special pleas. It
upheld the special plea of prescription on the basis that the appellant‟s cause of action
under the original summons was for payment of the sum of R274 786.70 for services
rendered by it to the respondent in terms of various agreements entered into between the
appellant and the respondent. Under the amended particulars of claim the appellant‟s
cause of action was based on various agreements entered into between Pyramid Freight
and the respondent. The magistrates‟ court accordingly held that the right sought to be
enforced in the amended particulars, was a different right. For that reason, it held that
the amendment introduced a new cause of action which had prescribed by the time it
was introduced by way of amendment. It held that the service of the original summons
did not interrupt the running of prescription on the new cause of action.

[7] In upholding a special plea of jurisdiction, the magistrates‟ court held that clause

36 of the standard trading conditions of Pyramid Freight, on which the appellant claim
was founded, ousted the jurisdiction of the magistrates‟ court. In the absence of a proper
consent in terms of s 45 of the Magistrates‟ Courts Act 32 of 1944 it did not have
jurisdiction to hear the matter.

[8] On appeal, the court a quo dismissed the appeal on the special plea of prescription
and confirmed the magistrates‟ court order upholding the special plea. But it upheld the
appeal on the special plea of jurisdiction and set aside the magistrates‟ court order
upholding the jurisdiction point and substituted it with one dismissing the special plea on
jurisdiction. The appellant appeals against the order that its claim had prescribed while
the respondent cross-appeals against the order dismissing its plea of lack of jurisdiction.

[9] Counsel for the appellant submitted that the finding by the court a quo, that the
appellant in its amendment had introduced a new cause of action, was wrong. He argued
that the right which was sought to be enforced both in the original particulars of claim
and in the amended particulars of claim was the same.  I agree.

[10] Properly construed, the appellant‟s claim as set out in the original summons
issued on 14 March 2007 is for payment of the sum of R274 786.70 being the balance
outstanding for services rendered and disbursements incurred by the appellant on behalf
of the respondent at the latter‟s special instance and request during the period 15
January 2005 to 16 May 2006 pursuant to a series of agreements. Those services and
disbursements were not rendered and incurred under the agreement between the
respondent and Pyramid Freight, the terms of which are irrelevant to the pleadings. The
claim was at all times for payment for services rendered at the special instant and
request of the respondent under contracts concluded between it and the appellant. As is
set out in the invoices, these were to be in terms of the appellant‟s standard conditions
of contract.

[11] I did not understand counsel for the respondent to have disputed that proposition
in argument. He took issue with the fact that the invoices sent to the respondent fail to
stipulate the date on which the alleged services were rendered and the nature of those
services. That contention is, however, untenable if regard is had to the fact that each
invoice bears the appellant‟s name, sets out the date on which the respondent‟s shipment
arrived in Durban and the date on which each invoice was generated. And those dates
fell within the period 2005 to 2006. Summons was issued in March 2007 well before the
claims had prescribed. There is therefore no merit in the special plea of prescription.

[12] With regard to the special plea of jurisdiction, which is the subject of the cross-
appeal, counsel for the respondent submitted that the court a quo erred in dismissing it.
He argued with reference to clause 33 (non-variation clause) and clause 36 of the
agreement that the parties had agreed that the high court would have exclusive
jurisdiction to determine all the disputes arising from that agreement irrespective of the
quantum involved. The second leg of his argument was that the quantum of the
appellant‟s claim in any event, exceeds the jurisdiction of a magistrates‟ court as to that
amount.

[13] But this presupposes that the Standard Terms and Conditions of Pyramid Freight
govern the agreements between the parties. They clearly do not do so. The debate as to
the meaning of clause 36 is therefore irrelevant. As to the second point, the invoices are
pleaded as being separate contracts. None of the amounts claimed in any invoice
exceeds the jurisdiction of the magistrates‟ court. The appellant was entitled to bring the
action in the magistrates‟ court. For these reasons the cross-appeal should fail.

[14] In the result I make the following order:
The appeal is upheld with costs.
The cross-appeal is dismissed with costs.

Paragraph 17 of the order of the court a quo is set aside and replaced by the
following:
„17.1 The appellant‟s appeal against the magistrates‟ court order upholding the
special plea of prescription is upheld with costs.
17.2 The order of the magistrates‟ court is substituted with the following order:
“Both special pleas are dismissed with costs.”‟

_________________

D H Zondi

Judge of Appeal

Appearances
For the Appellant:
A G Sawma SC

Instructed by:

Wright, Rose-Innes Inc, Bedfordview

c/o Phatshoane Henney Attorneys, Bloemfontein

For the Respondent:
J P Spangenberg

Instructed by:

Vally Chagan & Associates, Fordsburg

c/o Christo Dippenaar Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

3 June 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

UTi South Africa (Pty) Ltd v Triple Option Trading (20157/2014) [2015] ZASCA 101
(3 June 2015)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) delivered a judgment upholding an appeal by UTi South
Africa (Pty) Ltd (the appellant) and dismissing a cross-appeal by Triple Option Trading 29 CC (the
respondent) against the judgment of the Gauteng Division of the High Court, Johannesburg.
Consequently, both a special plea of prescription and a special plea of jurisdiction, which had been
raised by the respondent, were dismissed.

The issues before the court were (i) whether the appellant’s amendment to its particulars of claim had
introduced a new cause of action, which had prescribed by the time that the amendment was
effected; and (ii) whether the magistrate’s court had jurisdiction to hear the matter in light of an ouster
clause in one of the contracts alleged to be relevant to the dispute.

The facts of the matter were as follows. The appellant sued the respondent in the Germiston
Magistrate’s Court for the outstanding balance in respect of certain services rendered during the
period January 2005 to May 2006. Annexed to the appellant’s initial pleadings were invoices
reflecting such services, as well as a number of other documents and agreements. Some of the
averments in the particulars of claim were confusing and when further particulars were requested and
supplied, it was revealed that certain of the annexed agreements had not been concluded between
the respondent and the appellant, but instead were between the respondent and a third party,
Pyramid Freight (Pty) Ltd (Pyramid Freight). Expanding on this, the appellant’s further particulars also
included additional averments relating to how it had acquired the business of Pyramid Freight in
August 2004 and had taken cession of all of Pyramid Freight’s contractual rights.

Following this, the appellant amended its particulars of claim in July 2009 to reflect that its cause of
action arose from the cession from Pyramid Freight, rather than from an agreement between the
respondent and itself directly. In response, the respondent raised two special pleas. The first special
plea was that the appellant’s claim had prescribed, as the amendment introduced a new cause of
action and was only effected in July 2009, while the services rendered by Pyramid Freight had been
concluded in May 2006 (ie more than three years before). The second special plea was that the
standard terms and conditions of Pyramid Freight included a clause which provided that only a high
court would have jurisdiction to hear matters relating to that agreement, and thus the magistrate’s
court had no jurisdiction to decide upon the appellant’s claim.

The magistrate’s court upheld both special pleas, while the court a quo dismissed the special plea of
jurisdiction, and only upheld the special plea of prescription.

On appeal to the SCA, it was found that the appellant’s amendment of its particulars of claim was in
error. The cession of rights from Pyramid Freight only related to contracts concluded prior to August
2004, while the debts of the respondent arose only from January 2005 onwards. The initial particulars
of claim and the invoices annexed thereto, properly construed, correctly reflected the true cause of
action – services rendered by the appellant at the direct request of the respondent. The amendment
did not introduce a new cause of action; it merely replaced irrelevant and confused averments with
more irrelevant averments. Accordingly, prescription was interrupted by service of the summons and
initial particulars of claim, and the SCA upheld the appeal and dismissed the special plea of
prescription.

With regards to the special plea of jurisdiction, the SCA found that the standard terms and conditions
of Pyramid Freight were once again irrelevant to the matter, as the cause of action did not arise from
that agreement. Accordingly, there simply was no applicable ouster clause, and so the SCA
confirmed that the special plea of jurisdiction had been correctly dismissed by the court a quo.

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