IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA DELETE WHICHEVER IS NOT APPLICABLE 1. REPORTABLE: YES/ NO 2. OF INTEREST TO OTHER JUDGES: YES/NO \0 \ ':;) \ d-0,1 3. ~EVSED It?.. 't?.!~e/7 DAE /.._ GAUTENG DIVISION, PRETORIA In the matter between: CASE N0.:29756/2015 EAGLE STEEL CONSTRUCTION PROPRIETARY LIMITED t/a EAGLESTRUCT INTERNATION (REGISTRATION NUMBER: 1986/002815/07) PLAINTIFF and GLEN LEA PROPERTY INVESTMENTS CC (IN LIQUIDATION) ("GLEN LEA") (REGISTRATION NUMBER: 2005/128510/23) AVIWE NTANDAZO NDYAMARA N.O JOHANNES ZACHARIAS HUMAN N.0 RICHARD APRIL MASUKU NEDBANK LIMITED MASTER OF THE HIGH COURT OF SOUTH AFRICA, PRETORIA 1 ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4TH DEFENDANT 5TH DEFENDENT 6 TH DEFENDANT Coram: HUGHES J JUDGMENT
1 HUGHES J [1] In this opposed application the plaintiff in the action is the respondent, and the defendants are the applicants. For easy reference the parties will be referred to as cited in the action. [2] On the 22 February 2016 Fabricius J presiding over an interlocutory application of an exception raised by the defendant's granted a consent orders as is set out below: "1. The exception raised by the First to Fourth Excipient is upheld; 2. The exception raised by the Fifth Excipient is upheld; 3. The Plaintiff's particulars of claim are struck out; 4. The Plaintiff is afforded an opportunity of filing the required notice to amend its particulars of claim within twenty days of granting this order; 5. Leave is granted to the excipients to apply for the dismissal of the Plaintiff's action should the Plaintiff not so ament its particulars of claim; 6. The Plaintiff is ordered to pay the costs of the First to Fourth Excipients' exception; 7. The Plaintiff is ordered to pay the costs of the Fifth Excipient's exception; 8. The costs are to include the costs of senior counsel." [3] In terms of the court order the defendants applied for the dismissal of the plaintiff's action, and in response thereto, the plaintiff's launched a counter application for condonation and leave to amend their particulars of claim. It is these three applications I am called upon to adjudicate [4] The sequence of events pertinent to these applications is set out hereafter.
2 [5] On the 23 March 2016, after the order of Fabricius J of 22 February 2016, the plaintiff served a notice to amend titled "Plaintiff's Notice of Amendment". Incidentally, this was done on the last day, being the twentieth day in terms of paragraph 4 of the order. [6] This notice to amend sought to delete paragraph 8, 9. 7, 15, 16, 20 and replacing them. An addition was also made to paragraph 23 and Prayers 1,2,3,4 and 5 were also deleted and replaced. I do not intend to set out the paragraphs sought to be amended and replaced. I propose to deal with the relevant paragraphs when I deal with the objections raised by the defendants further on in the judgement. [7] On 4 April 2016 the defendants served their notice of objection to the amendments sought by the plaintiff. The crux of the objection was that the plaintiff had failed to comply with Section 18(4) of the Uniform Rules of Court in addition such amendment still rendered the pleadings of the plaintiff vague and embarrassing. [8] An application for leave to amend was launched by the plaintiff on 28 April 2016. This was not coupled with a condonation application; the latter was only sought by way of a notice on motion dated 31 May 2016 which was served on the defendants on 1 June 2016. [9] Correspondence which forms part of the annexures filed indicate that the plaintiff, by way of an email dated 5 April 2016, was advised that an objection had been filed by the defendants. Further, that the plaintiff was granted up until 8 April 2016 to serve their notice for leave to amendment.
3 [1 O] The application for the dismissal of the plaintiff's action was launched on 26 April 2016. The defendant's alleged that by then the plaintiff's notice to amend had lapsed as the cut-off date was 18 April 2016. Consequently, both applications were opposed and thus removed from the unopposed roll on 6 June 2016 and accordingly placed on the opposed roll. [11] The entire argument in dealing with this specific application hinges upon an interpretation of paragraphs 4 and 5 of the order of Fabricius J. [12] The defendant's case is that the plaintiff was afforded an opportunity to file its notice to amend within twenty days from the granting of the order, paragraph 4 of the order. However, in this instance, they filed an intention to amend. The defendant's contend that the plaintiff having failed to amend its particulars as was required in terms of paragraphs 4 and 5 read together, this resulted in non-compliance with rule 28(4) and 28(7) of the Uniform Rules of Court. [13] As no application to amend was launched by 18 April 2016, the defendant's argue that in terms of the Rules of Court, the period to file their notice to amend had lapsed. [14] On the other hand, the plaintiff argues, that on a reading of paragraph 5 of the order, it had complied with paragraph 4 timeously, having filed a notice of intention to amend, the defendants were no longer entitled to apply for a dismissal of their action. [15] The plaintiff's attorney in an affidavit for condonation and leave to amend explains that after filing the notice of its intention to amend, he had instructed his correspondent attorney, on 31 51 March 2016, to file the amended papers in the absence of any opposition or bring an application for leave to amend in the event of
4 an objection. He then proceeded to diarise the matter for 20 April 2016, however, on 4 April 2016 an objection was filed by the defendant's. On receipt of the objection he emailed correspondence to the counsel on brief stating "They are at it again". [16] The correspondence that followed was to the correspondent attorney of the plaintiff which was transmitted on 21 April 2016, where he requested the leave to amend application be enrolled as soon as possible. During that specific period the correspondent attorney's state that they were experiencing difficulties with their ADSL line and thus the application for leave to amend could only be transmitted on 29 April 2016 to the plaintiff's attorney for consideration. [17] The plaintiff goes on to state that, in any event, it launched an application for condonation for the late filing of its application for leave to amend and as such the condonation application should succeed, as a reasonable explanation had been advanced by the plaintiff's attorney. It was further clear from the explanation that there was no wilful default on the part of the attorney. [18] It is trite that discretion I have to grant condonation is wide and should be exercised after proper consideration of all the relevant circumstances and facts. The plaintiff ought to provide a reasonable explanation which bears out the plaintiff's bone tides and indicates that it has a prime facie claim with prospects of success. See Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 7641-765F; Colyn v Tiger Food Industries LTD tla Meadow Feed Mills (Cape) 2003 (6) SA 1 at 9E-10B. [19] The plaintiff argues that the delay is only but a week, and as such the defendant's cannot suggest that they have been prejudiced by such a delay, which can be cured by payment of their wasted costs occasioned. In my view this is not the correct approach or attitude to be adopted by the plaintiff. Be that as it may, when I apply the principles as set out above, I find that a reasonable explanation has been advanced. The explanation advanced indicates that an administrative glitch appears
5 to have emerged on the part of the correspondent attorneys and the plaintiff's instructing attorney. [20] Why should the plaintiff be penalised for this? By the same token a litigant has to stand or fall with the attorney chosen to represent one. Even in the face of the aforesaid, of importance, is the fact that the conduct of both attorneys in their failure to file the notice for leave to amend, timeously, was not wilful. From the outset, I might add, by virtue of the plaintiff filing its intention to amend, the plaintiff, in my view, clearly intended to comply with the court order. [21] In circumstances condonation 1s duly granted. I will return to the issue of wasted costs later in the judgment. [22] In terms of Rule 28 (1) of the Uniform Rules of Court a party shall notify its opposing party of its intention to amend and provide particulars of such amendment. In the circumstances before me I find that there was compliance with this provision. What was lacking was the lodging of the application for leave to amend after the objection to the amendment was filed by the defendants, Rule 28(4 ). [23] The principal objective of an amendment is to ventilate the dispute between the parties and as such the primary considerations of a presiding officer when exercising his/her discretion to grant or refuse an amendment, is whether there would be prejudice and an injustice caused to the opponent if the amendment is allowed. See Rosner v Lydia Swanepoe/ Trust 1998 (2) SA 123 (VV,) at 1270-G where Goldstone J quoted the following passage: "8. In Oevonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 (C) at 369F-I Rose Innes J said the following: "The general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless the application to amend is ma/a fide or unless the amendment would cause an injustice or prejudice to the other side which cannot be
6 compensated by an order for costs or, in other words, unless the parties can riot be put back for the purposes of justice in the same position as they were when the notice of motion which it is sought to amend was filed... A material amendment such as the alteration or correction of the name of the applicant, or the substitution of a new applicant, should in my view usually be granted subject to the considerations mentioned of prejudice to the respondent... The risk of prejudice will usually be less in the case where the correct applicant has been incorrectly named and the amendment is sought to correct the misnomer than in the case where it is sought to substitute a different applicant. The criterion in both cases, however, is prejudice which cannot be remedied by an order as to costs and there is no difference in principle between the two cases."' [24] In the circumstances of this case, I disagree with defendant's contention that the amendment or time period allowed to bring about the amendment had lapsed, and as such, the defendants could seek a dismissal of the plaintiff's action. [25] From my reading of the order, paragraph 4 provides for that which is required in terms of Rule 28 (1). If I examine paragraph 5, following on paragraph 4, to me, should the plaintiff not comply with paragraph 4, then and only then, would the defendant's be able to seek the dismissal of the plaintiff's action. If there is compliance with paragraph 4, it stands to reason, that the provisions of Rule 28, governing amendments of pleadings kicks in. It is trite that an amendment can be sought any time before judgment. In casu, the defendant cannot seek the dismissal of the plaintiff's action, based on the notion that they had failed to amend their particulars of claim, as the plaintiff had complied with paragraph 4 of the order. [26] The amendments sought were met with objection that they still rendered the particulars of claim vague and embarrassing. It is commonplace that material facts relied upon for a conclusion to be drawn by the courts in ones favour must be pleaded with particularity, clearly and concisely. See Trope and others v South African Reserve Bank 1993 (3) SA 264 (AD) at [21]. [27] The applicable rule to establish if indeed that is the case is Rule 18(4):
7 "Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto." [28] The plaintiff contends that the amendments sought cures a majority of the issues raised in the initial exception which coursed the plaintiff's particulars of claim to be struck out. It further contends, that it has illustrated, by way of the amendments sought, that its claim is founded on an enrichment. The parties by way of a written agreement had initially agreed that the plaintiff would conduct repairs to the first defendant's property totalling 9 900 square meters and later, orally changed the agreement by increasing the area to be repaired to 15 900 square meters. This resulted in an additional costs of R1 690 795.00 having been incurred by the plaintiff. [29] The defendant's take issue with the fact that the amendment does not spell out what the additional work was and when was it in fact conducted. Further, the annexure attached to verify the amount claimed, as the costs incurred by the plaintiff, being "POC3", was a payment certificate and as such it could not purport to be actual costs incurred by the plaintiff. One of the reasons advanced is that the payment certificate was claimable in terms of the written agreement and not the oral agreement. In reply the plaintiff states that the amount reflects what the first defendant was actually enriched by and as such was a material fact. [30] The particularity pleaded is dependent on the facts of each case. If one relies on a fact then, placing reliance thereupon, needs to be proven at trial in order to succeed with one's claim. It is not for the plaintiff to anticipate every defence to be raised by the defendant, thus cluttering the pleadings with evidence and opinions, in order to cover all ones bases. It is for the defendant to raise these defences in its
8 plea and for the plaintiff to provide material facts. See Jowell v Bramwell-Jones and others 1998 (1) SA 836 (WLD) at 9018-9028. [31] One is required to just plead a summary of the material facts which simply outlines the case to be met, that is to be developed in full force at trial. In my view, the amendments sought by plaintiff, in this instance, does exactly that and as such is sufficiently particular for the defendant's to plead. [32] It stands to reason that the application for the dismissal of the plaintiff's action must fail and leave to amend the particulars of claim is granted. Costs [33] The plaintiff by filing its application for condonation sought an indulgence and as such should pay the wasted costs occasion by the defendant's on a party and party scale. Such cost to include the employment of senior counsel. [34] As regards the costs for the application to dismiss and the application for leave to appeal, I am of the view that they are intricately related and as such each party is ordered to pay their own costs. [35] Consequently I make the following order: 1. The plaintiff's application for condonation is granted and the plaintiff is ordered to pay the wasted costs of the defendants on a party and party scale. Such costs to include the employment of senior counsel; 2. The application to dismiss the plaintiff's action is dismissed with each party ordered to pay their own costs; 3. The application for leave to amend the plaintiffs particulars of claim as set out in the "Plaintiff's Notice of Amendment" dated 22 March 2016 is granted with each party to pay their own costs.
9 the High Court Gauteng <. Division, Pretoria Appearances: For the Applicant: D M Leathern SC Instructed by: David Kotzen Attorneys For the Defendant: E Rudolph Instructed by: Van Rensburg Koen & Baloyi Attorney Date heard: 01 February 2017 Date delivered: 10 February 2017