Liberty Group Limited v K&D Telemarketing CC and Others (75525/10) [2018] ZAGPPHC 528; 2019 (1) SA 540 (GP) (14 June 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

CASE NO: 75525/10

In the matter between:

LIBERTY GROUP LIMITED

Plaintiff

and

K&D TELEMARKETING CC

First Defendant

KAREN SHAFER

Second Defendant

ERIC BUTOWSKY

Third Defendant

JUDGMENT

Tuchten J:

The Moving Finger writes; and, having writ,

Moves on: nor all thy Piety nor Wit

Shall lure it back to cancel half a Line,

Nor all thy Tears wash out a Word of it.[1]

1 In this application the plaintiff seeks to undo, or escape, the consequences of an order for absolution from the instance granted

against it after the close of the defendants' case and the rigour of the provisions of s 15 of the Prescription Act, 68 of 1969 (the Prescription Act). The plaintiff makes its case in the common law, as it would have it interpreted but admittedly never before so articulated; or, if this fails, through a request that this court exercise its powers and perform its duties to develop the common law as contemplated by ss 39(2) and 173 of the Constitution.

2 The plaintiff applies for leave to reopen its action against the defendants on the same papers and for condonation for its lateness in doing so. The plaintiff is an affluent insurance company. It, and other companies, had an agreement with the first defendant.[2] The first defendant was a telemarketer. That is to say, the first defendant's employees telephoned members of the public and asked them to place life insurance with the plaintiff. For every policy taken up through the first defendant's efforts, the plaintiff paid first defendant a commission, reckoned on the full anticipated life of the policy.

3 The second and third defendants stood surety for the obligations of the first defendant.

4 The agreement between the parties obliged the first defendant to repay part or perhaps all of the commission paid if a policy were cancelled or lapsed before given dates. That is where the trouble started. The plaintiff said that the first defendant owed it R515 964,95 as at 21 May 2010, when the agreement was terminated. The first defendant denied this liability.

5 On 9 December 2010, the plaintiff sued the defendants, jointly and severally, for payment. It pleaded the terms of the agreement upon which it relied. The defendants denied most of the terms of the agreement alleged and denied their indebtedness But the plaintiff did not attach to its particulars of claim, or rely on, a hard copy document setting out the various debits and credits underlying its claim. It relied on a certificate in its particulars. At the trial, though, the plaintiff relied on computer generated documents. The defendants contended that the computer evidence was inadmissible.

6 The trial of the case was delayed by an application for summary judgment, an exception taken by the defendants but later withdrawn and a postponement of the trial, said by counsel for the defendants to have been occasioned by late and extensive discovery by the plaintiff. The case eventually came to trial before Louw AJ in April 2015 and ran for several days. There was an application for absolution at the close of the plaintiff’s case which was refused. The defendants called a witness. Louw AJ reserved. He handed down a written judgment on 4 September 2015. The learned judge found that the computer evidence was admissible. But he found that this evidence was insufficient. He found that the evidence did not show that the plaintiff's claim had been correctly calculated.

7 Louw AJ referred to a schedule of commissions. He said that this schedule was a vital document which had not been produced at the trial. He concluded that there was a sliding scale of entitlements to commissions, dependent on how long after the inception of the policy in question it had lapsed. The witness called by the plaintiff, Mr Heldsinger, did not, according to Louw AJ know when the relevant policies had commenced and when they had lapsed. Heldsinger, said the learned judge, merely assumed that the plaintiffs computers had been correctly programmed. A vital component of the plaintiff's case (thus the learned judge) had not been proved. He ordered absolution from the instance with costs in relation to the plaintiff's claim against the defendants.

8 The plaintiff did not seek to appeal the order of Louw AJ. The order therefore stands. Counsel are however agreed that an order of absolution does not give rise to a defence of res judicata or lis finitis . The cases are unanimous that a plaintiff against whom absolution has been ordered may competently institute the same claim de novo.

9 But the complication in the present case is that counsel are equally agreed that the plaintiff's claim against the three defendants

prescribed on the day Louw AJ handed down his judgment ordering absolution. This is because of the provisions of s 15 of the Prescription Act:

[1] From The Rubaiyat of Omar Khayyam (1048-1131), as interpreted or parodied, by Edward FitzGerald (1809-1883). A work latterly

denounced for Orienalism, a sin identified, or invented, by Edward Said (1935-2003).

[2] The other companies ceded their rights against the defendants to the plaintiff. So I shall therefore refer to the plaintiff alone in the contractual context although this is not strictly accurate.

[3] African Farms and Townships Ltd v Cape Town Municipality 1963 2 SA 555 A 563F; Sparks v Sparks 1998 4 SA 714 W 721D

[4] 1933 AD 141

[5] At 160-161

[6] See Colman v Dunbar. supra, 163

[7]9 Juta 277

[8] 1911 AD 295 at 304

[9] 1970 1 SA 609 A

[10] 619B

[11] 2006 ed, vol 3 paras 202 and 316.

[12] Mutual and Federal Insurance Co Ltd v Oudtshoom Municipality 1985 1 SA 419 A 430C, quoting with approval the famous dictum from the Privy Council judgment in Pearl Assurance Co v Union Govemment reported in 1934 AD 560 at 563.