Multioptima Engineering Consultants CC and Others v Public Investment Commissioners and Another (1706/04_) [2007] ZAGPHC 89 (15 May 2007)

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Case No: 1706/04 Date: 15/05/2007

UNREPORTABLE

In the matter between:

MULTI

OPTIMA ENGINEERING CONSULTANTS CC P S VAN DER MERWE

P

W COETZER

And

PUBLIC

INVESTMENT COMMISSIONERS RONNIE NTULI

In re:

PUBLIC

INVESTMENT COMMISSIONERS

And

ISAGA PRIVATE EQUITY (PTY) LIMITED

ISAGA ADVISORY SERVICES (PTY) LIMITED RONNIE NTULI

NATHAN

BALAKRISHNAN

MULTI

OPTIMA ENGINEERING CONSULTANTS CC P S VAN DER MER WE

P

W COETZER

1st Applicant 2nd Applicant 3rd Applicant

1st Respondent 2nd Respondent

Plaintiff

First Defendant Second Defendant Third Defendant Fourth Defendant Fifth DefendantSixth Defendant

Seventh Defendant

JUDGMENT

HARTZENBERG, J

2

The applicants are the 5th, 6th and 7th defendants in an action in which the

respondent claims R21 million, together with interest thereon, from the seven defendants.

The money claimed was government money which was advanced to the applicants

through the first four defendants. The money was advanced in three draws of R7 million

each during 2000, 2001 and 2002. It was advanced to finance a mining venture. The

mining company was liquidated and the government lost all the money. The plaintiff

alleges that the first four defendants made serious misrepresentations, of which the

applicants were aware, to it and that the seven defendants are jointly and severally liable

to repay the money with interest.

The plaintiff was cited as "The Public Investment Commissioners, a body

established in terms of the Public Commissioners Act, No 45 of 1984, as amended". The

summons was issued on 23 January 2004. The plaintiff wants to change the citation to

"The Public Investment Corporation Limited, a Company incorporated in terms of

Section 2 of The Public Investment Corporation Act, No 23 of 2004" It attempted to do

so in terms of a notice in terms of Rule 15. The applicants object to the proposed

amendment.

It is the applicants' case that Act 45 of 1984 never created a legal entity such as

the Public Investment Commissioners with standing to institute legal proceedings. Such

an entity was created in the 2004 Act. The argument is that the summons was a nullity

by a non-existing plaintiff which cannot be amended to animate it without causing

prejudice to the applicants. There is a difference of approach whether the amendment

3

sought is a correction of a misnomer or the substitution of the original plaintiff with a

totally different legal entity. However that may be, the prejudice that the applicants

allege that they will suffer, if the substitution takes place, is that they will not be a able to

raise a plea of prescription, which would have been available to them if a new summons

had to be issued.

The respondent's answer is that the notice of substitution was given at a time

before the claim prescribed as the claim is one based on a misrepresentation, of which it

only became aware after the liquidation of the mining company. It does not appear from

the respondent's papers when in fact it acquired such knowledge. The exact date when

the misrepresentation became known to the respondent seem to me to be relevant for a

proper adjudication of the matter. When I raised it with the respondent the first reaction

was that as the applicants did not file a replying affidavit it must be accepted that they

admit that there is no such defence available. The difficulty with the argument is that the

respondent just alleged a conclusion of law without alleging the actual facts on which the

conclusion is based. There was accordingly no allegation of fact with which it was

necessary for the applicants to deal.

The respondent then asked for a postponement and leave to supplement its

affidavits and tendered the wasted costs. At the time I was not certain whether the

respondents were entitled to a postponement as the allegation of prejudice was made, and

they dealt with it. I reserved judgment to decide whether the postponement could be

granted and to consider whether an order could not be made one way or the other on the

4

papers as they stand.

I have come to the conclusion that as the amount of money

involved is enormous a decision not based upon all the relevant facts may invite an

appeal which may lead to unnecessary delay and costs. As the amount of money is

sizeable the respondent may suffer irreparable prejudice if a decision is made against it

without it having had an opportunity to put, what in its view are all the relevant facts,

before the court.

It follows that the request for a postponement must be granted and leave must be

granted to all the parties to file supplementary affidavits if so advised.

The following order is made:

1. The matter is postponed sine die.

2. Leave is granted to the respondent to file supplementary affidavits, dealing

with the question of possible prejudice to the applicants in the case of a

change in the citation of the plaintiff in the main claim.

3. Leave is granted to the applicants to file affidavits, if so advised, to deal with

the new matter raised by the respondent.

4. The respondent is ordered to pay the costs wasted as a result of the

postponement

HARTZENBERG

THE

HIGH COURT

Date of Hearing : 10/05/2007

Representation

For the Applicants : Adv R Deminey Attorneys : De Witt Attorneys

For the Respondents : Adv. I Opperman. Attorneys : DMO Attorneys

c/o Coetzee & Partners

I,.

5