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[2021] ZAWCHC 215
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Wholesale Housing Supplies (Pty) Ltd v Rich Rewards Trading 556 (Pty) Ltd and Others (22189/2016) [2021] ZAWCHC 215 (29 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 22189/2016
Before: The Hon. Mr Justice Binns-Ward
Hearing: 28 October 2021
Judgment:
29 October 2021
In the
matter between:
WHOLESALE
HOUSING SUPPLIES (PTY) LTD
Applicant/Plaintiff
and
RICH
REWARDS TRADING 556 (PTY) LTD
First
Respondent/Defendant
ABDUL
SATHAR EBRAHIM MOHAMMED
Second
Respondent/Defendant
LUIGI
LUCA MARIA GIURICICH
Third
Respondent/Defendant
WILHELM
IMPORT NETWORK (PTY) LTD
Fourth
Respondent/Defendant
Order
:
1. The application
for leave to amend the particulars of claim is granted.
2.
There is no order as to costs.
JUDGMENT
Delivered by email and release to SAFLII
BINNS-WARD J:
[1]
The matter up for decision is an
application by the plaintiff to amend its particulars of claim.
The application is opposed
by the first, second and third defendants.
[2]
In relevant part, the plaintiff has sued in
the action for payment of the balance of the purchase price allegedly
owed to it by
the first defendant in respect of the sale to it by the
plaintiff of certain shares in and loan claims against the fourth
defendant.
It is not necessary for present purposes to describe
the other claims advanced in the combined summons.
[3]
The contract of sale provided for the
payment of the purchase price in instalments. It further
provided (in clause 13.1) that
in the event of the purchaser
defaulting on its obligations and remaining in default
notwithstanding seven days’ written
notice to cure its breach,
the full amount then still outstanding would thereupon become
immediately due and payable. The
plaintiff relies on the
acceleration clause for its claim in the action for payment of the
full outstanding balance of the purchase
price.
[4]
Paragraph 9 of the particulars of claim
(which were not drafted by counsel) sets forth the particulars in
which the first defendant
is alleged to have breached the sale
agreement. Paragraph 10 of the pleading as currently formulated
then proceeds as follows:
On 27 July
2016 the First Defendant was given written notice to rectify the said
breaches within 7 days as appears from ANNEXURE
“POC2”
hereto.
The
attachment annexed to the pleading as annexure POC2 is a copy of a
letter dated 26 July 2016 from the plaintiff’s attorneys
of
record to the first defendant. It is not a notice to rectify
the alleged contractual breaches. Instead, amongst
other
matters, it lists the breaches and states (in para 6 thereof):
On
15 June 2016 you were notified of
[the]
breach and provided 7 days to rectify.
You failed to do so. You are therefore liable for the full
outstanding balance of the purchase
price in the amount of R8 485 000
(eight million four hundred and eighty-five thousand rand) in term so
(sic)
clause
13.1 of the agreement, together with interest at the rate of 9% per
annum from 30 November 2015 being the date you fell into
arrears.
[5]
It is clear from paragraph 10 read with the
annexure what the problem with the allegation is. The annexure
is obviously the
wrong document. It is plain from the content
of the attached letter dated 26 July 2016 that it was addressed
pursuant to
the first defendant’s failure to remedy the alleged
breaches. The content also suggests that the notice giving the
first defendant seven days to remedy its default was given on 15 June
2016, not 27 July as alleged in the body of the pleading.
[6]
The plaintiff wants to amend the
self-evidently defective paragraph 10 of its particulars of claim to
read as follows:
10.
10.1 On 15 June 2016 the First Defendant
was given written notice to rectify the said breaches within seven
days, as appears from Annexure “POC2(a)” hereto
10.2 On 27 July 2016
First Defendant was given further written notice that he had failed
to rectify the
said breaches within seven days, as appears from
Annexure “POC2” hereto.
[1]
[7]
The first to third defendants object to the
proposed amendment. Their basis for doing so was set forth in
their notice of
objection in terms of Uniform Rule 28(3) as follows:
1.
The Plaintiff is introducing a new
cause of action (right of action) that did not exist at the time when
the Summons was issued.
2.
The Plaintiff through its proposed
amendment is seeking to introduce a cause of action for a claim which
claim is known to be prescribed.
[8]
The basis for objection begs the questions
what the plaintiff’s pleaded cause of action is and whether the
proposed amendment
would introduce a different one.
[9]
As mentioned, the relevant pleaded claim is
for payment of the outstanding balance of a purchase price. The
amount is claimed
on an accelerated payment basis relying on the
alleged breaches by the first defendant of the terms of the contract
and the provision
in the contract that makes the first defendant
liable to pay the full balance then outstanding if, having been given
seven days’
written notice to do so , it failed to remedy the
breaches. Accordingly, the facts that will have to be proved to
establish
the relevant pleaded claim (the so-called
facta
probanda
) are (i) the existence of
the contract, (ii) the alleged breaches thereof, (iii) the
giving of the stipulated seven
days’ notice to cure them, (iv)
the first defendant’s failure to remedy the breaches within the
grace period, and (v) the
outstanding balance. They are
pleaded in the particulars of claim as they currently stand in
unamended form.
[10]
If the amendment were allowed, the amended
pleading would set out precisely the same
facta
probanda
as those set out in the
pleading in its current state. The pleading would still set out
a claim for accelerated performance
of the same contract on the basis
of the same alleged breaches by the first defendant and its failure
to remedy them after seven
days’ written notice. The
elemental facts making out the cause of action would remain
unaltered. The only changes
would be that the pleaded
allegations concerning the date on which the notice was given would
be altered and a copy of the notice
would be attached in place of the
document previously annexed in self-evident error. The proposed
changes go to the pleaded
particularisation of the evidence needed to
prove the
facta probanda;
i.e.
the probative facts (
facta probantia
),
which consist of the factual evidence to make out the
facta
probanda
.
[11]
Lord Esher MR famously distilled the difference
between
facta probanda
and
facta probantia
in
Read v Brown
[1888] 22 QBD 128
at 131, when describing what made out a ‘
cause
of action
’. The learned
Master of the Rolls said that pleading a cause of action required the
allegation of ‘
every fact which it
would be necessary for the plaintiff to prove if traversed, in order
to support his right to the judgment of
the court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary
to be proved
’.
By ‘
every fact
’,
the learned judge meant the ‘
facta
probanda
’ and by ‘
every
piece of evidence necessary to prove each fact
’,
he was speaking of the ‘
facta
probantia
’. Lord Esher’s
analysis, adopted from the definition given by Brett J in
Cook
v Gill
(L.R., 8 C.P. 107)
, has
frequently been cited with approval in our jurisprudence: an early
example is in
McKenzie v Farmers’
Co-operative Meat Industries Ltd
1922
AD 16
at 23, where the reliance on it by this court in
Belfort
v Morton
1920 CPD 589
is mentioned.
It is also still referred to in England as ‘
the
classic definition
’; see
Doyle
v PRA Group (UK) Ltd
[2019] EWCA Civ 12
(23 January 2019) at
para 20.
[12]
The effect of allowing the proposed
amendment would not affect the elemental facts (
facta
probanda
) necessary to be proved to
establish the originally pleaded claim. Its effect would only
be to alter the pleaded detail concerning
the pieces of evidence (the
facta probantia
)
that the plaintiff intends to adduce to establish those facts.
The defendants’ contention that the amendment that
the
plaintiff wishes to make will introduce a new cause of action is
therefore misconceived.
[13]
Mr
Güldenpfennig
SC’s argument on behalf of the defendants that the summons in
its current form does not make out a cause of action, and that,
accordingly, any amendment that would rectify its defects would, of
necessity, introduce ‘a new cause of action’ is
not
persuasive in my judgment. I have already explained that the
facta probanda
alleged in the existing summons do make out the cause of action, and
that they remain unaltered by the proposed amendment.
It was
not necessary in order to plead the cause of action for the plaintiff
to attach a copy of its notice to the first defendant
to cure the
breach to its pleading. The fact that it nevertheless attached
something that purported to be a copy of the notice
but cognisably
was not may have rendered the pleading vague and embarrassing, but it
did not render the pleading excipiable for
failing to make out a
cause of action. Amending the pleading by removing the cause
for it being vague and embarrassing would
not alter the originally
pleaded cause of action; it would merely render it more clearly
pleaded.
[14]
I am astute to the difference between a
‘debt’ (Afriks.
vorderingrsreg
)
within the meaning of the
Prescription Act 68 of 1969
and a ‘cause
of action’ (Afriks.
skuldoorsaak
)
as that term is understood in the rules of pleading, but it is quite
clear in this case that the debt that is sought to be exacted
in
terms of the summons in its current state is identifiably the same as
that which the plaintiff seeks to claim in terms of the
proposed
amended summons, and also that the grounds for, or nature of, the
pleaded claim by which it is sought to do so will be
unaltered if the
amendment is allowed. Insofar as extinctive prescription
informs the defendants’ objection in the
context of its
contention that the originally pleaded claim does not disclose a
cause of action, and assuming that my rejection
of the contention
were wrong, I think that Ms
Dicker
SC for the plaintiff was correct in arguing that the objection would
in any event fall to be disposed of in the circumstances of
the
current case applying the reasoning of Eksteen JA in analogous
circumstances in
Sentrachem Ltd v
Prinsloo
1997 (2) SA 1
(A) at 15I-16F.
[15]
The plaintiff in
Sentrachem
had instituted proceedings in August 1993 by way of a combined
summons in which he appeared to claim damages for breach of contract,
alternatively in delict. Eksteen JA described the setting out
of the grounds for the claim in the summons as having been
‘
by
no means clear or satisfactory
’.
[2]
The plaintiff’s legal representatives recognised the flaws in
the originally drafted particulars of claim and amended
the summons
in July 1994 by deleting the particulars of claim completely and
substituting them with an improved pleading setting
out a main claim
for breach of contract and three alternative claims, the first of
which was predicated on the contract having
been induced by the
negligent or false representations of the defendant, the second, on
the breach by the defendant of an alleged
duty in law to ensure that
the pesticide (AC 92-100) it had supplied to the plaintiff would not
be deleterious to the plaintiff’s
system of biological pest
control in its orchards and the third, the alleged negligence of the
defendant’s sales representatives,
as agents of a dealer in
specialist products, in representing that the product they sold to
the plaintiff would have no negative
effects on the plaintiff’s
system of biological pest control.
[16]
The defendant in
Sentrachem
delivered a special plea of extinctive
prescription, the relevant parts whereof were quoted in the Appellate
Division’s judgment
as follows (at 16G-H; my translation from
the Afrikaans):
‘
The
causes of action upon which the plaintiff relies in its particulars
of claim all prescribed by no later than February 1994’
...
‘
The
plaintiff did not in his particulars of claim as they were before the
above-mentioned amendments thereto were effected rely
on any of the
causes of action upon which he now relies in his amended particulars
of claim’
The issue was
whether the defectively pleaded original particulars of claim had
interrupted the running of prescription. The
Appellate Division
determined it as follows at 15H-16F:
Die
vorderingsreg en die skuld is ... slegs teenpole van 'n verbintenis,
en waar die skuld verval, verval die vorderingsreg ook
(
Erasmus v
Grunow en 'n Ander
1978 (4) SA 233
(O) op 245E en
Evins
[v
Shield Insurance Co Ltd
1980 (2) SA 814
(A)] se saak supra op
842E-F).
Vir
die doeleindes van die stuiting van verjaring is dit dus nie nodig
dat die dagvaarding, waardeur die skuldeiser poog om betaling
van sy
skuld af te dwing, ’n skuldoorsaak hoef te openbaar nie.
(T
rans-African Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A);
Van Vuuren v Boshoff
1964 (1) SA 395
(T);
Rooskrans v
Minister van Polisie
1973 (1) SA 273
(T).) Al is ’n
dagvaarding vir eksepsie vatbaar omdat dit geen skuldoorsaak openbaar
nie, kan dit nogtans dien om verjaring
van die skuld wat geëis
word te stuit. Die enigste voorbehoud is dat die dagvaarding nie so
gebrekkig moet wees dat dit ’n
nulliteit is in die sin dat dit
nie vatbaar is vir wysiging om die gebreke aan te suiwer nie. Die
eintlike toets is om te bepaal
of die eiser nog steeds dieselfde, of
wesenlik diselfde skuld probeer afdwing. Die skuld of
vorderingsreg moet minstens uit
die oorsponklike dagvaarding kenbaar
wees, sodat ’n daaropvolgende wysiging eintlik sou neerkom op
die opklaring van ’n
gebrekkige of onvolkome pleitstuk waarin
die vorderingsreg, waarop daar deurgaans gesteun is, uiteengesit
word. (
Churchill v Standard General Insurance Co Ltd
1977 (1)
SA 506
(A) op 517B-C;
Maluleka
se saak supra op 279C;
Mokoena
v SA Eagle Insurance Co Ltd
1982 (1) SA 780
(O) en
Frol
Holdings (Pty) Ltd v Sword Contractors CC
1996 (3) SA 1016
(O).)
So ’n wysiging sal uiteraard nie ’n ander vorderingsreg
naas die oorspronklike kan inbring nie, of ’n vorderingsreg
wat
in die oorspronklike dagvaarding prematuur of voorbarig was, te red
nie, of om 'n nuwe party tot die geding te voeg nie. (Vergelyk
Churchill
se saak supra;
Imprefed (Pty) Ltd v National
Transport Commission
1990 (3) SA 324
(T);
Neon and Cold
Cathode Illuminations (Pty) Ltd v Ephron
1978 (1) SA 463
(A) en
Park Finance Corporation (Pty) Ltd v Van Niekerk
1956 (1) SA
669
(T).)
In
die onderhawige saak het die respondent deurgaans dieselfde skuld van
die appellant gevorder, nl die skade wat hy gely het as
gevolg van
die gebruik van AC 92-100 in sy sitrusboorde. Hy het geen nuwe partye
probeer voeg nie en sy eis was deurgaans opeisbaar.
Die uiteensetting
van die skuldoorsake waarin hy hierdie skuld regtens geklee het was
moontlik gebrekkig of onduidelik en dit was
hierdie tekortkominge wat
die wysiging gepoog het om op te klaar. Die skuld soos dit tans in
die gewysigde pleitstukke uiteengesit
word en selfs die skuldoorsake
waarop nou gesteun word, was myns insiens uit die oorspronklike
besonderhede van eis kenbaar. Die
appellant was dan ook deurgaans ten
volle bewus gewees van respondent se bewerings en van al die
wesenlike feite waarop die respondent
sy beweerde skuld gevorder het.
Daardie skuld het nie verander nie en is slegs deur die gewysigde
pleitstukke duideliker ingeklee
en uiteengesit. Die geleerde Regter a
quo was dus reg om die spesiale pleit af te wys.
[3]
[17]
So even were the plaintiff’s summons
in its current state fundamentally defective for failing to
competently set out a cause
of action, or ‘right to claim’,
as Mr
Güldenpfennig
put it (which is not my finding), that would not in the circumstances
of the current case imply (i) that it would not be fairly
susceptible to amendment to cure the defects or (ii) that the
amendment would prejudicially affect the defendants’ position
with regard to extinctive prescription if such a defence were
available to them on the facts.
[18]
An order allowing the application for leave
to amend the particulars of claim as prayed at the hearing will issue
accordingly.
The plaintiff asked that costs of the application
should be ordered to be costs in the cause in the action. The
defendants
sought costs even if their opposition should be
unsuccessful because, so it was argued, the opposition had not been
unreasonable.
In my judgment, however, it would be appropriate
if there were no order as to costs, for whilst the defendants were
unsuccessful
in their opposition to the amendment, the plaintiff was
seeking an indulgence by having to apply for it.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant
/ Plaintiff’s counsel:
T. Dicker SC
Applicant
/ Plaintiff’s attorneys:
Jonker Vorster Inc
Paarl
De Waal Boshoff Attorneys
Cape Town
Respondent
/ Defendants’ counsel:
S. Güldenpfennig SC
Respondent
/ Defendant’s attorneys:
Corne Güldenpfennig Attorneys
Centurion
Shepstone & Wylie
Cape Town
[1]
The application for leave to amend and the
preceding notice in terms of
Rule 28
gave the date ‘
26
July
’ in the contemplated
amended para 10.2, but counsel stated at the hearing that was
erroneous and should be ‘
27
July
’. The correction is
inconsequential, and Mr
Güldenpfennig
SC for the defandants, reasonably, raised no objection.
[2]
The learned judge expressed himself as follows
(at 16C): ‘
Die uiteensetting van
die gronde waarop respondent se eis gebaseer was, was geensins
duidelik of bevredigend nie
.’
[3]
The right to claim and the debt are thus only
opposite poles of a legal obligation, and where the debt lapses the
right to claim
also expires.
For the
purpose of the interruption of prescription it is therefore not
necessary that the summons by which the creditor seeks
to enforce
payment of the debt must disclose a cause of action. Even if a
summons is susceptible to exception for not disclosing
a cause of
action, it can nevertheless serve to interrupt prescription of the
debt which is being claimed. The only reservation
is that the
summons must not be so defective that it is a nullity in the sense
that it is not amenable to amendment to cure the
defects. The
actual test is to ascertain whether the plaintiff is still seeking
to enforce the same or essentially the
same debt. The debt or
right to claim must at least be identifiable from the original
summons, so that a subsequent amendment
would come down to the
remediation of a defective or inchoate pleading in which the right
to claim relied upon from the start
is properly set out.
Such an
amendment will in the nature of things not be able to introduce
another right to claim or to rescue a right to claim prematurely
advanced in the original summons or to join a new party to the
action.
In the
current matter the respondent has claimed the same debt from the
respondent from the outset, namely the damage he suffered
in
consequence of the use of AC 92-100 in his citrus orchards. He
has not attempted to join any new parties and his claim
was
enforceable throughout. The pleading of the causes of action
by which he articulated this claim for legal purposes
was possibly
defective or unclear and it was those shortcomings which the
amendment sought to remedy. The debt as it is
now pleaded in
the amended pleadings and even the causes of action now relied upon
were in my view identifiable in the original
particulars of claim.
The appellant was also fully aware from the outset of the
respondent’s allegations and of all
the material facts on
which the respondent pursued his alleged claim. That claim has
not altered and has merely been more
clearly expressed and set out
in the amended pleadings. The learned Judge was accordingly
correct in dismissing the special
plea.
(My
translation, omitting the citation of the various authorities
mentioned in the original text.)