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[2021] ZAWCHC 101
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Vogler and Another v First For Women (Pty) Limited and Others (21019/2019) [2021] ZAWCHC 101 (18 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 21019/2019
In
the matter between:
DEBPORAH ANNE
VŐGLER
First Plaintiff
ID
[….]
MARKO
ILLYA VŐGLER
Second Plaintiff
ID:
[….]
and
FIRST
FOR WOMEN (PTY) LIMITED
First Defendant
(1998/004804/07)
TELESURE
INVESTMENT HOLDINGS
Second Defendant
(1998/013847/07)
LIPCO
GROUP (PTY) LIMITED
Third Defendant
(2001/014508/07)
JUDGMENT DELIVERED
ELECTRONICALLY: TUESDAY, 18 MAY 2021
NZIWENI
AJ
Introduction
[1]
On the 22
nd
of November 2019 the Plaintiffs issued
combined summons, against all three Defendants, claiming R21 022
122.65 in damages. The
present Applicants, who are the Plaintiffs in
the main action, have brought this opposed application, seeking leave
to amend their
particulars of claim in terms of Rule 28 of the
Uniform Rules of Court. For the sake of convenience I shall refer to
the parties
as the Plaintiffs and the Defendants, respectively.
[2]
On the 7
th
of July 2020 the Plaintiffs gave notice that
they intended to amend their particulars of claim as follows:
‘
1.
By adding a new heading before paragraph 6 which should read as
follows: “
NATURE AND BASIS OF THE
CLAIMS”.
2.
By inserting a new paragraph 6 with the words:
Plaintiff’s
claims are based on a breach of contract alternatively delict
(negligence) alternatively breach of contract and
delict as is set
out more fully in the particulars of claim herein below.
3.
By renumbering the paragraphs consequent upon the insertion of the
new paragraph.’
[3]
No exception, in terms of Uniform Rule 23 (1), was taken against the
particulars of
claim. The First and Second Defendants are not
opposing the application for amendment. Only the Third Defendant is
taking issue
with the Plaintiff’s intended amendment.
[4]
In the notice of objection to the contemplated amendment, the
objections taken are
couched in the following terms:
‘
2
The particulars of claim, were (
sic
)
the proposed amendment to be effected, would be excipiable and
lacking of averments necessary to sustain a cause of action against
the Third Defendant.
3.
In respect of the primary claim, being the plaintiffs’ claim
against the third defendant for damages arising out of breach
of
contract, the particulars fo (sic) claim do not contain any,
alternatively, adequate averments of material fact alleging:
3.1
That any contract existed between the plaintiff and the third
defendant;
3.2
What the terms of the alleged contract were;
3.3
What term(s) of the contract was/were breached;
3.4
The manner in which such term(s) was/were breached; and
3.5
A casual connection between the alleged breach(es) and the damages
allegedly suffered, and in particular…
4.
In respect of the alternative claim in delict:
4.1
The Plaintiffs’ proposed alternative claim is a claim for pure
economic loss in delict against the third defendant. The
proposed
alternative claim does not contain a clear and concise statement of
the material facts from which wrongfulness is alleged
to have arisen
and thus lacks averments necessary to sustain a claim in law.
4.2
The Plaintiff makes certain allegations of negligent conduct on the
part of Justin McBride. The particulars of claim do not
contain any,
alternatively, "to have been committed by Justine McBride…
5.
In the circumstances, the plaintiffs’ proposed amendment is bad
in law, discloses no cause of action against the third
defendant, and
would render the particulars of claim vague and embarrassing and/or
lacking averments necessary to sustain a claim
in law.
6.
The third defendant would thus be prejudiced if amendment were to be
allowed.’
[5]
Inasmuch as it appears that the notice of objection raises numerous
issues, in my
mind, the critical issues to be determined by this
court are: whether the particulars of claim in their current state
lack the
necessary averments to sustain a cause of action against the
Third Defendant, whether the contemplated amendment should be allowed
and, if so, whether that would render the pleading excipiable?
[6]
What is apparent from the particulars of
claim is that the First Defendant, First for Women (PTY) Ltd, an
Insurance Company, has
a direct contractual relationship with the
First Plaintiff
.
The
legal principles
[7]
Rule 28 (10) of the Uniform Rules provides:
‘
The
court may, notwithstanding anything to the contrary in this rule, at
any stage before judgment grant leave to amend any pleading
or
document on such other terms as to costs or other matters as it deems
fit.’
[8]
In
Gerber N.O. and another v Beta Electrical CC t/a Feedcrow
(4589/2017) [2020] ZAECGHC 128 (24 November 2020) the following was
stated at para 37:
‘
There
is no prudence in allowing an amendment that would place the
pleadings in a worse situation than they are. The role of the
pleadings is to properly outline issues, not only for the parties,
but also for the court. Pleadings that render it difficult to
understand the cause on which the claim or defence is based stand in
the way of justice, and therefore an amendment that carries
a
possibility of such an eventuality must be discouraged early on, even
before the other party confronts it with an exception.’
[9]
It is trite that when leave to amend is sought, the court will always
be predisposed
to grant such, unless leave is sought in bad faith or
would cause an injustice to the other party which cannot be cured by
an appropriate
cost order. See
Moolman v Estate Moolman and
Another
1927 CPD 27
, at p 29.
[10]
The determination of real disputes and merits is the overriding
function of the courts, instead
of being bogged down on technical or
procedural aspects, which only serve to delay the proceedings. See
BMW Financial Services (SA) (Pty) Ltd v Harding and another
[2007] 4 ALL SA 716
(C) para 5;
Four Tower Investments (Pty) Ltd v
André’s Motors
2005 (3) SA 39
(N) at 43G-H.
[11]
In
Whittaker v Roos and Another
1911 T.P.D. 1092
, at p
1102-1103, WESSELS J stated:
'This
Court has the greatest latitude in granting amendments, and it is
very necessary that it should have. The object of the Court
is to do
justice between the parties. It is not a game we are playing, in
which, if some mistake is made, the forfeit is claimed.
. . .But we
all know, at the same time, that mistakes are made in pleadings, and
it would be a very grave injustice, if for a slip
of the pen, or
error of judgment, or the misreading of a paragraph in pleadings by
counsel, litigants were to be mulcted in heavy
costs. That would be a
gross scandal. Therefore, the Court will not look to technicalities,
but will see what the real position
is between the parties.'
[12]
Rule 18 (4) of the Uniform Rules provide as follows:
‘
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.’
[13]
By all accounts, an application for an amendment is not a
pro
forma
exercise. It will not be easily granted as a matter of
course.
Proposed
amendment based on Contractual claim
[14]
It is quite apparent that the proposed amendment plainly states,
amongst others, that the Plaintiffs’
claims are framed on a
breach of contract, alternatively on delict. The contemplated
amendment seeks firstly to base the relationship
with the Defendants
on a purported contract. I pause to mention that, gleaning from the
particulars of claim in their current form,
it becomes abundantly
clear that the Plaintiffs are asserting that an agreement was only
entered into by and between the First
Plaintiff and the First
Defendant.
[15]
Similarly there is no iota of indication in the contemplated
amendment that the Third Defendant
ever entered into an agreement of
any sorts with the Plaintiffs. This leads to the inevitable
conclusion that the existence of
a contract between the Third
Defendant and the Plaintiffs was never alleged in the pleadings.
[16]
Somewhat surprisingly, the Plaintiffs propose an amended which seeks
to allege that their claims
are based on a breach of contract,
alternatively delict (negligence), alternatively breach of contract
and delict. The proposed
amendment further states that the claims are
based on contract; alternatively breach of contract and delict ‘as
is set out
more fully in the particulars of claim herein below’.
[17]
In the first place, the assertion that the contractual claim is set
out fully in the particulars
of claim is not correct. As I pointed
out previously, the particulars of claim are silent on the terms of
contract, or existence
of a contract between the Third Defendant and
the Plaintiffs. Equally important, no term is pleaded that the Third
Defendant was
or is contractually obligated to the Plaintiffs. That
is not the end of the matter; there are absolutely no facts in the
particulars
of claim that make out a cause of action for breach
against the Third Defendant. Consequently, when it comes to the Third
Defendant,
the contemplated amendment is incompatible with the
particulars of claim, since the pleading lacks the necessary
averments to justify
the granting of such an amendment.
[18]
In the case of
Jowell v Bramwell – Jones and Others
1998
(1) SA 836
(W), the following was stated at 913E-G:
‘
The
plaintiff is required to furnish an outline of his case. That does
not mean that the defendant is entitled to a framework like
a
cross-word puzzle in which every gap can be filled by logical
deduction. The outline may be asymmetrical and possess rough edges
not obvious until actually explored by evidence. Provided the
defendant is given a clear idea of the material facts which are
necessary to make the cause of action intelligible, the plaintiff
will have satisfied the requirements.’
[19]
It may also be argued that the Third Defendant can simply plead to
the proposed amendment that
there is no agreement between them. For
obvious reasons, under the circumstances of this case, the Third
Defendant cannot even
plead a simple bare denial, because, amongst
others, the terms of the contract and whether the parties have a
contractual relationship
are material facts and not matters of
evidence. In terms of the Uniform Rules, such facts need to be fully
pleaded. The Plaintiffs,
in this regard, bear the onus to plead all
averments necessary to succeed in their claim. Surely it is not
sufficient for the Plaintiffs
to allege that the cause of action is
based on contract, alternatively delict, alternatively delict and
contract.
[20]
Everything stated herein above, must be seen in light of the
contemplated amendment and the particulars
of claim. Upon
consideration of the formulated claims, they contain no factual
allegations that the Third Defendant breached any
terms of contract
between them. Equally so, the particulars of claim contain no
specific allegations of breaches of any agreement,
or that the
damages claimed are for contractual damages stemming from any
agreement. It is thus not clear from the particulars
of claim which
terms of the contract were breached by the Third Defendant and how.
It’s my view that in the circumstances
the contemplated
amendment does not help the Third Defendant to see the wood from the
trees.
[21]
Furthermore, it is significant to note that an examination of the
particulars of claim reveal
that the factual allegations are couched
in conflated general terms. Hence, it is largely unclear which
aspects relate to the contractual
claim and which relate to the
delictual claim.
[22]
Surely, the Plaintiffs cannot simply throw together whatever facts in
the particulars of claim
and then expect that a defendant should
simply separate the wheat from the chaff and plead. It cannot be
expected from the Third
Defendant to unravel and make sense of a
mountain of jumbled up allegations. The amendment sought requires of
the Third Defendant
to piece together, from the pleaded facts, which
facts relate to the contractual claim. In
Roberts Construction Co
Ltd v Dominion Earth-Works (Pty) Ltd
1968 (3) SA 255
(A), at
263A, the following was stated:
‘
The
plaintiff is certainly not entitled to plead a jumble of facts and
force the second defendant to sort them judiciously and fit
them
together in an attempt to determine the real basis of the claim.’
[23]
In this regard, the Plaintiffs’ contractual claim, as far as
the Third Defendant is concerned,
lacks particularity. Undoubtedly,
if a party wants to pursue two claims in the alternative it should be
clear from the particulars
of claim where such claims are set out.
[24]
The key question to be answered here would be: on what basis do the
Plaintiffs want to plead
that there is a breach of contract between
them and the Third Defendant. From the allegations made in the
particulars of claim,
it does not appear to me that the Plaintiffs
rely on a contract to found their cause of action. Consequently, it
is an essential
fact that in this matter, the invocation of a claim
based on a breach of contract between the Third Defendant and the
Plaintiffs
will make no sense whatsoever. Equally important and true
is this: if the amendment sought is granted, it will mean that the
contractual
claim by the Plaintiffs against the Third Defendant is
based on an un-pleaded contractual relationship. On its own, this is
indeed
problematic in many areas. Quite clearly, in this regard, the
particulars of claim are lacking essential averments.
Proposed
amendment based on Delictual claim
[25]
In
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)
(Pty) Ltd
1985 (1) SA 475
(A), at 496H-I, it was stated that:
‘
The
mere fact that the respondent might have framed his action in
contract therefore does not
per se
debar him from claiming in delict. All that he need show is that the
facts pleaded establish a cause of action in delict. . . .
The
fundamental question for decision is accordingly whether the
respondent has alleged sufficient facts to constitute a cause
of
action for damages in delict.’
[26]
Upon careful consideration of the particulars of claim it is evident
that the material factual
allegations are chiefly alleging
negligence. However, the formulation of the particulars of claim does
not sufficiently convey
and set out the facts upon which reliance is
placed for a delictual claim against the Third Defendant.
[27]
The Plaintiffs in their particulars of claim
inter alia
state
that the legal representatives appointed by the Third Defendant, to
handle his matters, were negligent and/or incompetent.
In paragraph
36 of the particulars of claim the Plaintiffs also allege that:
‘
Several
doctors involved in the treatment of the second Plaintiff’s
treatment advised that the stress and aguish caused by
the
incompetence of Mc Bride and the third Defendant had become too much
and literally broke him.’
In
para 54 of the particulars of claim the Plaintiffs aver that:
They
will not be able to receive anything from Sentigol because of
incompetence, alternatively negligence of the service providers
appointed by third Defendant.
In
para 57 of the particulars of claim the Plaintiffs allege that:
‘
First,
Second and Third Defendants are directly responsible for the
inevitable loss of compensation to Plaintiffs. In addition,
the
negligence and/or incompetence of the appointed service providers to
First and second Defendants together with the grievous
lack of
oversights by the First and Second Defendants over the work of Third
Defendant, has caused irreparable harm to Plaintiffs’
prospects
of finding work again and therefore earn income in future.’
In
paragraph 67 the following allegation is contained in the particulars
of claim:
‘
This
loss is once more as a direct result of the negligence and/or
incompetence of Third Respondent which was appointed by the First
and
Second Defendants who are therefore vicariously liable for the
damages suffered in the amount of R3 300 000.00.’
[28]
Upon a benevolent consideration of the particulars of claim, it
becomes clear that the Plaintiffs
are alleging that the legal
representatives appointed by the Third Defendant were negligent.
There is no allegation in the particulars
of claim that suggests
either that the Third Defendant was negligent, in breach of a duty of
care, or whether it acted wrongfully
when employing legal
representatives for the Plaintiffs. The Plaintiffs have failed to
allege facts that assert that a duty of
care was owed by Third
Defendant to the Plaintiffs. Expressed differently, there is no
delictual duty of care defined, or which
can be inferred from the
allegations in the particulars of claim, on the part of the third
Defendant.
[29]
When the Plaintiffs state in the particulars of claim that the First,
Second and Third Defendants
are directly responsible for the loss of
compensation to Plaintiffs, they are plainly drawing conclusions.
However, they do not
set out clearly why they make such a general
allegation and from what they draw such a conclusion. The particulars
of claim do
not reveal on what basis the Plaintiffs impugn fault on
the part of the Third Defendant.
[30]
In
Trope v South African Reserve Bank and Another and Two Other
Cases
1992 (3) SA 208(T)
, at 214D, the following was enunciated:
‘
.
. . it is incumbent on a plaintiff to plead all the facts on which he
wishes to rely to enable the Court to decide whether policy
considerations and the
boni mores
warrant that liability should extend to the case in question.’
[31]
It appears the Plaintiffs have divided their claims into two
categories. The first claim pertains
to the amount of R21 022 122.65,
the second claim pertains to the amount of R3 300 000.
[32]
If regard is had to the first claim, one will notice that in paras 54
and 55 of the particulars
of claim, negligence is alleged only in
respect of the service provider. Furthermore, in para 57, the
Plaintiffs simply make an
allegation that the First, Second, and
Third Defendants are directly responsible for the inevitable loss of
compensation to the
Plaintiffs. The Plaintiffs further state that
there was a lack of oversight over the work of the Third Defendants
by the First
and Second Defendants. It is equally plain that these
facts do not allege that the Third Defendant committed actionable
negligence.
[33]
Regarding para 57, there are no facts upon which wrongfulness related
to delict, as far as the
Third Defendant is concerned, can be
deduced. Consequently, it is difficult to infer wrongfulness from the
loss suffered. In Fourway
Haulage SA (Pty) Ltd v SA National Roads
Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA), para 14, the court opined:
‘
The
proposition that a plaintiff claiming pure economic loss must allege
wrongfulness, and plead the facts relied upon to support
that
essential allegation, is in principle well founded. In fact, the
absence of such allegations may render the particulars of
claim
excipiable on the basis that no cause of action had been disclosed. .
.’
[34]
In my view, it is insufficient for the Plaintiffs, when it comes to
the Third Defendant, to simply
state that the Third Defendant is
directly responsible for the inevitable loss of compensation to the
Plaintiffs. Needless to say
the particulars of claim should lay down
and define the nature and the extent of the responsibility of the
Third Defendant in delict.
[35]
The second claim against the Defendants appears to be the one of R3
300 000. The Plaintiffs,
in para 64 of the particulars of claim,
state the following:
‘
The
case was then referred back to Third Respondent’s employee,
Carl Botman, the same person who had mishandled the labour
matter and
started the whole sequence of events with negligence, bad advice and
utter unprofessional conduct leading to Plaintiffs’
unfair
dismissal.’
[36]
The facts as pleaded in the particulars of claim fail to reveal how
the Third Defendant had been
negligent when it comes to this claim.
The facts and details pleaded only state that the Plaintiffs were not
happy with the appointment
of Botman and informed the Third Defendant
about that. It is further stated that the Third Defendant made no
further progress with
this matter. As far as the Third Defendant is
concerned, it is not clear on what acts the allegation of negligence
against the
Third Defendant is based.
[37]
For instance, there is no allegation in the particulars of claim that
the Third Defendant is
vicariously liable for the negligence or the
conduct of Carl Botman, its employee. Similarly, the Plaintiffs also
did not set out
material facts that impugn vicarious liability on the
part of the Third Defendant.
[38]
Likewise, it is not clear what the Plaintiffs mean or try to convey
when they state, in para
66, that:
‘
To
date, Third Defendant has made no further progress to this matter and
in the meantime Sentigol has been placed under provisional
liquidation with the result that Plaintiffs have no prospects of ever
recovering that which is justly due to them.’
[39]
In para 67 of the particulars of claim it is stated that:
‘
This
loss is once more as a direct result of the negligence and / or
incompetence of the Third Respondent which was appointed by
the First
and Second Defendants who are therefore vicarious liable for the
damages suffered in the amount of R3 300 000.00.’
[40]
Once again, in para 67, the Plaintiffs are drawing conclusions which
are not supported clearly
by the material facts pleaded.
[41]
Buchner and Another v Johannesburg Consolidated Investment Co
Ltd
1995 (1) SA 215
(T), at 216H-J & 217E-G, stated the
following:
‘
I
emphasise the words “shall contain a clear and concise
statement of the material facts”.
The
necessity to plead material facts does not have its origin in this
Rule. It is fundamental to the judicial process that the
facts have
to be established. The Court, on the established facts, then applies
the rules of law and draws conclusions as regards
the rights and
obligations of the parties and gives judgment. A summons which
propounds the plaintiff's own conclusions and opinions
instead of the
material facts is defective. Such a summons does not set out a cause
of action. It would be wrong if a Court were
to endorse a plaintiff's
opinion by elevating it to a judgment without first scrutinising the
facts upon which the opinion is based.
.
. .
The
conclusion that the appellants are liable can only be reached or
justified if those terms support the conclusion set out in
the
summons. . . . I realise that the exposition of the facts contained
in a summons is no more than the pleader's opinion, or
of his
averment as to what the facts are. If such a statement is not
disputed those alleged facts have to be accepted as proven.
An
opinion or conclusion as to what the parties' liabilities are, even
if undisputed, does not become a statement of fact and a
failure to
dispute the conclusion is of no consequence.’
[42]
As far as the Third Defendant is concerned, it is entirely unclear as
to why the Plaintiffs would
want to amend the particulars of claim
and allege that the claim against the Third Defendant is based on
contract, alternatively
delict, alternatively delict and contract.
From the foregoing it is plain that the Plaintiffs, in the
particulars of claim, do
not identify issues in an intelligible and
lucid manner, as required by the Uniform Rules of Court, in order to
allow the Third
Defendant to plead thereto.
[43]
Based on the above I do not even consider it necessary to traverse
the aspect of concurrent liability.
Conclusion
[44]
Currently, the particulars of claim are contained in 22 pages, to
which is attached 249 pages
as annexures, which has made the
particulars of claim unduly prolix. Regrettably in this matter, I
highly foresee that in future
there is still going to be an endless
succession of applications seeking leave to amend the pleadings.
[45]
I must say that as they stand, the particulars of claim are
inelegant, not the best model of
clarity, both in form and substance.
The amendment sought, against the backdrop of the particulars in
their current form, require
the Third Defendant to take a blind
plunge into the unknown.
[46]
As alluded to hereinabove, a party is not entitled to an amendment as
a matter of course. Certainly
there are limits within which an
amendment can be granted. Without doubt, there should be a factual
basis supporting the allegations
proposed to be introduced by the
Plaintiffs. However, as things currently stand in the present matter,
there is absolutely no foundation
for the amendments sought by the
Plaintiffs. Put differently, the facts pleaded in the particulars of
claim do not support the
contemplated amendment sought.
[47]
At the risk of repeating myself, I must emphasise that the right to
seek an amendment is not
absolute. Amendments are remedial in nature.
The procedure is designed to remedy deficiencies and inadequacies in
a pleading and
not to create them. The amendment proposed in the
current application, will further complicate the case instead of
clarifying issues
between the parties. Considering the particulars of
claim and the proposed amendment, all in all the picture that emerges
is unmistakably
murky.
[48]
Counsel on behalf of the Plaintiffs maintained staunchly that leave
to amend, in this instance,
should be granted, because no evidence
was presented to show that the application was brought made
mala
fide
. I really did not quite grasp the contention made on behalf
of the Plaintiffs. I suspect that this contention is predicated on
the premise that as a rule an amendment should be granted.
[49]
It is indeed so that the Third Defendant does not aver that the
amendment is sought in bad faith.
Interestingly though, the
contention by the Plaintiffs’ counsel completely ignores the
fact that, if there is no evidence
of bad faith on the part of the
applicant seeking leave to amend, it does not automatically follow
that the leave sought should
be granted. Clearly, it can never be a
one size fits all approach. Jurisprudence has established that
besides the fact that the
contemplated amendment should be in good
faith, or should not cause an injustice, the applicant should also
demonstrate, amongst
others, that the proposed amendment merits
attention and raises an issue which requires to be adjudicated.
Hence, it is normally
said that an amendment is not to be had merely
for the asking, meaning a party cannot claim an amendment as a matter
of right.
It is my view
that there is no
merit in the submission
made on behalf of
the Plaintiffs, and the contention struck this court as the last kick
at the can.
[50]
I happen to agree wholeheartedly with the counsel on behalf of the
Third Defendant that, under
the prevailing circumstances, the
introduction of the proposed amendment would render the pleading
excipiable.
[51]
It suffices to state that an amendment which will make the pleading
increasingly murky should
not be allowed. See
Gerber N.O
.
supra. It will definitely be senselessness to grant the Plaintiffs
leave to amend, considering the pleadings and the proposed
amendment.
If the amendment is allowed it will lead to injustice to the Third
Defendant, which cannot be compensated by an appropriate
cost order.
The interest of justice does not require that the amendment sought in
the notice of amendment should be granted.
[52]
In the result the following order is made:
a.
The application for an amendment in terms
of the notice of motion dated the 7
th
of July 2020 is dismissed with costs.
b.
Such costs to include the services of a
Counsel.
CN
NZIWENI
Acting
Judge of the High Court
APPEARANCES
Counsel
for the Plaintiff:
Adv C Kilowan
Counsel
for the Defendant:
Adv D Van Reenen