Van Tonder v Nurcha Finance Company (Pty) Ltd (1525/04) [2006] ZANWHC 52 (24 August 2006)

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 1525/04

In the matter between:

J C

A VAN TONDER Applicant

and

NURCHA FINANCE COMPANY (PTY) LTD Respondent

APPLICATION FOR LEAVE

TO APPEAL

DATE OF HEARING : 18 AUGUST 2006

DATE OF JUDGMENT : 24 AUGUST 2006

COUNSEL FOR THE APPLICANT : ADV

A J SWART

COUNSEL FOR THE RESPONDENT: ADV

J H F PISTOR SC

JUDGMENT

HENDRICKS J:

A. Introduction:

[1] This is an application for leave to appeal by the Applicant (who was the 10th Respondent in the main application) to the Full Bench of this Division, alternatively to the Supreme Court of Appeal against the whole of the judgment and order, including the order as to costs, delivered on 16 February 2006.

[2] Two grounds of appeal were raised, namely:-

(1) that the court erred in finding that the partnership with whom Applicant (Nurcha Finance Company (Pty) LTD) concluded two written loan agreements was the same partnership with whom the Second Respondent (Naledi Local Municipality) concluded two written agreements;

(2) in view of the fact that there was a dispute of fact as to whether it was the same partnership, the court erred in not referring the matter for oral evidence.

[3] At the commencement of his argument and submissions, Mr Swart, who appeared for the Applicant in this application for leave to appeal, abandoned the second ground. I will now deal only with the first ground of appeal.

[4] Mr Swart contended that in this case the partnership’s members changed and as a result of the change in membership, it became a new entity. He submitted that a partnership is not an entity on its own separate from its members. The partnership is no legal persona in itself and cannot be divorced from its members. One must have regard to the facts of this case to determine whether or not the partnership came to an end or was dissolved.

[5] There was no evidence presented to this court that indicated that the partnership was dissolved. To the contrary, the evidence clearly indicates that the partnership existed throughout and that inter alia Me Mabaso had the necessary authority to act on behalf of the partnership and to bind it in terms of the resolution adopted.

[6] There is no evidence indicating that the joint venture that was formed ceased to exist before the cession in favour of the Applicant was signed. Despite, I may just mention, that it is not at all alleged that the court erred in its finding that the cession that was entered into was indeed valid.

[7] There is also no evidence that the joint venture came to an end when the contract was cancelled as submitted by Mr Swart. Again, on the contrary, the contract was taken over in terms of a “step-in undertaking consent” that was entered into.

[8] Mr Pistor, on behalf of the Respondent, submitted that the fact that members of the partnership changed is irrelevant to this matter. He submitted that it is permissible for a party who deals with a firm or partnership to cite that firm or partnership in its name. It is not required of such a party to cite the individual partners. Even if there is a mistake in the citation, it does not afford a defence to the partnership. I fully agree with the submission by Mr Pistor.

[9] If a partnership becomes dissolved after a cause of action has arisen, the dissolution of the partnership does not affect the rights of the third party viz-a-viz the partnership in respect of a cause of action accrued before the dissolution.

See:- Spie Batignolles Société Anonyme v Van Niekerk; in re Van Niekerk v SA Yster en Staal Industriële Korporasie Bpk en Andere 1980 (2) SA 441 (NC) at 446 E – 447 H.

[10] In Kirsh Industries v Vosloo and Others 1982 (3) SA 479 (WLD) Gordon J states the following:-

“It seems clear that, in terms of Rule 14, a partnership which had been dissolved after the accrual of the cause of action but before the issue of summons may nevertheless be sued in its name at date of the accrual of the cause of action …..”

[11] I am of the view that the rights of the Respondent (Nurcha Finance Company (Pty) LTD), as a third party, is not affected.

B. Costs:

[12] Costs follows the result and I am of the view that as the successful party, the Applicant in the main application (Nurcha Finance Company (Pty) LTD) was entitled to be awarded the costs. Similarly, with regard to this application, costs should follow the result.

C. Conclusion:-

[13] In my view, no other court will come to a different decision than what this court had arrived at.

[14] There are no prospects of success on appeal and this application stands to be dismissed with costs.

Consequently, I make the following order:-

The application for leave to appeal to either the Full Bench of this Division or the Supreme Court of Appeal is dismissed with costs.

R D HENDRICKS

JUDGE OF THE HIGH COURT

Attorneys for the Applicant: Botha Coetzer Smith