Summary of Judgment

1. Introduction

This judgment concerns an opposed interlocutory application in which the applicant, Geeco Investments (Pty) Ltd, sought leave to (a) supplement its founding affidavit and (b) amend its notice of motion in the main proceedings in order to introduce additional relief. The respondent was Gourmet Cape Distributors (Pty) Ltd, which resisted the application on procedural grounds.

The procedural history was central to the outcome. The applicant initially instituted the main matter in June 2019 by way of motion proceedings for payment of R713 700, together with interest and costs. After the respondent delivered an answering affidavit, the parties agreed to an order in November 2019 referring the matter to trial, with the notice of motion to stand as a simple summons and with further pleadings (a declaration and plea) to follow. The matter proceeded to trial, and at the close of the applicant’s case the respondent successfully applied for absolution from the instance, which was granted by Saldanha J on 17 September 2021. The applicant did not seek leave to appeal that order.

Following the absolution order, the applicant launched the present application (in November 2021) seeking to supplement the earlier motion papers and amend the notice of motion to introduce additional causes of action and relief. The general subject-matter of the dispute before Cloete J was therefore not the merits of the underlying claim for payment, but rather the procedural competence and appropriateness of attempting to expand the case by amending a notice of motion that had become a simple summons, and by supplementing affidavits after the matter had been referred to trial and absolution had been granted.

2. Material Facts

It was common cause that the applicant commenced proceedings on 28 June 2019 by notice of motion seeking payment of R713 700 plus interest and costs, and that the respondent delivered an answering affidavit on 12 August 2019.

It was also undisputed that, on 18 November 2019, the parties procured an agreed referral to trial order. Material to the present application were the terms that the application was referred to trial, the notice of motion would stand as a simple summons, and the applicant would file a declaration followed by a plea from the respondent, with costs to stand over.

After those pleadings were exchanged and the matter proceeded to trial, it was not in dispute that the respondent applied for absolution from the instance at the close of the applicant’s case and that Saldanha J granted absolution on 17 September 2021. It was further not disputed that the applicant did not apply for leave to appeal that order.

The applicant then brought the current application on 24 November 2021, seeking to supplement its founding affidavit and amend the notice of motion to introduce additional relief. The respondent’s stance, as recorded by the court, was that the applicant was pursuing the wrong procedure, because motion proceedings had been superseded by action proceedings, and that the applicant should (if anything) have pursued amendment of the declaration, and (more fundamentally) should first have sought leave to reopen its case given the absolution order.

Although there was some debate mentioned in argument about possible prescription of at least one newly-introduced cause of action, the court treated that as not ripe for decision and did not determine it, given the interlocutory nature of the application and the procedural basis on which the matter was decided.

3. Legal Issues

The central legal questions were procedural and concerned the competence of the relief sought in the specific procedural posture of the case.

The first issue was whether it was competent and meaningful for the applicant, after the referral-to-trial order (which provided that the notice of motion would stand as a simple summons), to seek an amendment of that notice of motion in order to introduce additional relief, and to support that by supplementing the original founding affidavit.

The second issue was whether the application was premature or impermissible because, following the grant of absolution from the instance, the applicant had not first sought leave to reopen its case, and whether (as a matter of principle) a litigant in the applicant’s position must proceed de novo unless leave is obtained.

These questions were primarily questions of law and procedure, with an emphasis on the application of established procedural principles to the undisputed procedural history. They did not require a value judgment on the substantive merits of any newly-pleaded claims, and the court expressly avoided engaging the merits at this stage.

4. Court’s Reasoning

The court first addressed the effect of the referral order that the notice of motion “shall stand as a simple summons”. The respondent argued that motion proceedings had been superseded by action proceedings and that the applicant’s attempt to amend the notice of motion and supplement affidavits misconceived the procedural position. The applicant argued that it was entitled to introduce additional causes of action not previously referred to trial and not dealt with in the trial pleadings.

In examining whether the amendment sought was competent, the court turned to authority indicating that a simple summons is not a pleading. Reliance was placed on Icebreakers No 83 (Pty) Ltd v Medicross Health Care Group (Pty) Ltd 2011 (5) SA 130 (KZD) (as referred to by the Full Court in Absa Bank v Janse Van Rensburg 2013 (5) SA 173 (WCC)). The court distilled from Icebreakers that a summons serves the function of commencing proceedings and bringing the defendant before court, whereas the pleading (declaration or particulars of claim) contains the statement of the case. This distinction mattered because, even if a procedural mechanism exists to amend a “document” under Rule 28(1), amending the notice of motion/summons would not, in substance, advance the applicant’s aim of introducing additional relief in the manner attempted.

The court identified two principal reasons why amending the simple summons and supplementing the founding affidavit would not assist. First, even if the simple summons were amended, the respondent would not be required to plead to anything until an amended declaration was served. Second, the parties had agreed not to a referral to oral evidence on limited issues, but to a referral to trial. The court emphasised the procedural consequences of that distinction by reference to Lekup Prop Co No 4 v Wright 2012 (5) SA 246 (SCA), which drew a clear difference between referrals to trial and referrals to evidence. In a referral to trial, affidavits do not serve as evidence-in-chief (save for admissions and use in cross-examination); they have no probative value as evidence unless admitted or otherwise properly introduced at trial. On that footing, the court reasoned that supplementing a founding affidavit at this stage would not operate as a meaningful procedural vehicle to establish the additional relief, because “the exchange of affidavits has come and gone” and, after a trial referral, the respondent is not obliged to answer further affidavits in the manner contemplated in motion proceedings.

The court then dealt with the respondent’s further procedural objection that the application was premature because the applicant had not sought leave to reopen its case after absolution. The applicant relied on African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) (and, by reference, Purchase v Purchase 1960 (3) SA 383 (N)) for the proposition that a dismissal or refusal of an application has the same effect as a decision in favour of the respondent, and that the equivalent of absolution in motion proceedings might be “no order” or leave to apply again on the same papers.

The court considered that this point had been comprehensively addressed in Liberty Group Limited v K & D Telemarketing CC 2019 (1) SA 450 (GP) and, on appeal, Liberty Group Limited v K & D Telemarketing CC (1290/18) [2020] ZASCA 41 (20 April 2020). From those decisions, the court extracted the principle that after absolution a plaintiff may institute proceedings afresh without leave, but if it wishes to proceed on the same papers it requires the court’s permission and, in any event, must proceed afresh (de novo). The Supreme Court of Appeal’s treatment of African Farms was taken to show that the dictum relied upon was confined to the context of motion proceedings and did not stand as authority for reopening an action after absolution under the same case number on existing pleadings.

Although the absolution in Liberty occurred after the conclusion of the defendant’s case, the court did not regard that distinction as affecting the underlying principle where absolution is granted at the close of the plaintiff’s case. The court further observed that, although the applicant characterised itself as “applicant” in this interlocutory application, it had clearly been the plaintiff at trial following the referral to trial.

Finally, the court considered that the applicant’s attempt to introduce additional relief by amending what had become a simple summons and supplementing a founding affidavit failed because, after referral to trial and absolution, there was no longer an application before the court in the sense contemplated by motion procedure. On the court’s analysis, the procedural route chosen was therefore impermissible. The court expressly declined to address possible prescription or merits-based objections, reasoning that the application was interlocutory and that dealing with merits would risk prejudging issues that might later arise before a different court.

5. Outcome and Relief

The application for leave to supplement the founding affidavit and amend the notice of motion was dismissed.

The court ordered that the application is dismissed with costs.

The court added that there should be no prejudice to the applicant if it follows the correct procedure, namely applying to reopen its case and thereafter seeking to amend its declaration, while noting that the respondent might object to such amendment. No finding was made on the merits or on prescription.

Cases Cited

Absa Bank v Janse Van Rensburg 2013 (5) SA 173 (WCC).

Icebreakers No 83 (Pty) Ltd v Medicross Health Care Group (Pty) Ltd 2011 (5) SA 130 (KZD).

Lekup Prop Co No 4 v Wright 2012 (5) SA 246 (SCA).

African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A).

Purchase v Purchase 1960 (3) SA 383 (N).

Liberty Group Limited v K & D Telemarketing CC 2019 (1) SA 450 (GP).

Liberty Group Limited v K & D Telemarketing CC (1290/18) [2020] ZASCA 41 (20 April 2020).

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 18(4).

Uniform Rules of Court, Rule 28(1).

Held

The court held that, after the parties agreed to a referral to trial and that the notice of motion would stand as a simple summons, the applicant’s attempt to introduce additional relief by amending the notice of motion and supplementing the founding affidavit was procedurally misconceived. A simple summons is not a pleading and, even if treated as a “document” for Rule 28 purposes, its amendment would not require a plea until an amended declaration is delivered.

The court further held that, given the matter had been referred to trial, supplementing affidavits would not serve the purpose intended because affidavits do not constitute evidence-in-chief in a trial referral (save for admissions and cross-examination use), and the exchange of affidavits contemplated by motion procedure had already passed.

The court also held that the application was premature and impermissible because, following absolution from the instance, the applicant had not sought leave to reopen its case, and the correct approach (if the applicant wished to proceed further) would be to proceed afresh, either by instituting proceedings anew or by obtaining leave where proceeding on the same papers is sought, and then pursuing appropriate pleading amendments.

LEGAL PRINCIPLES

A simple summons is not a pleading. Its function is to commence litigation and bring the defendant before court, while the declaration or particulars of claim set out the material facts underpinning the cause of action. This distinction affects what may properly be attacked or amended as a pleading, and what procedural steps are necessary to place a case before the court for adjudication.

Although Rule 28(1) regulates amendments to pleadings and documents (other than sworn statements), amending a simple summons does not, without more, place the substantive content of additional claims before the court in action proceedings. In particular, an amendment to the summons does not itself generate an obligation on the opposing party to plead; that obligation arises upon service of an amended declaration.

A referral to trial is procedurally distinct from a referral to oral evidence on limited issues. In a referral to trial, affidavits filed in the earlier application generally do not constitute evidence-in-chief and have no probative value except insofar as they contain admissions or are used for purposes such as cross-examination. This limits the utility of attempts to “supplement” affidavits after the matter has moved into the trial procedure.

After an order of absolution from the instance, the plaintiff is not entitled simply to continue or expand the case under the same procedural footing without following proper steps. The plaintiff may institute proceedings de novo without leave, but if it seeks to proceed on the same papers it requires the court’s permission and must in substance proceed afresh. Dicta concerning leave to apply again on the same papers are context-specific to motion proceedings and do not establish a general entitlement to reopen action proceedings after absolution under the same case number on existing pleadings.

Where the dispute is disposed of on procedural grounds and is interlocutory in nature, a court may refrain from determining potentially dispositive merits-based issues (such as prescription) to avoid prejudging matters that may arise in subsequent proceedings before another court.