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[2012] ZAGPJHC 151
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Randa v Radopile Projects CC (A3003/2011) [2012] ZAGPJHC 151; 2012 (6) SA 128 (GSJ); [2012] 4 All SA 434 (GSJ) (30 August 2012)
REPORTABLE
IN THE SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO : A3003/2011
DATE:30/08/2012
In
the matter of the appeal between:
FREDERICK
PAPE
RANDA
..............................................................................
Appellant
and
RADOPILE
PROJECTS
CC
...............................................................................
Respondent
JUDGMENT
WILLIS
J:
[1]
This is an appeal against the decision of the learned magistrate to
disallow an amendment to the defendant’s plea during
the course
of a trail. I am indebted to Bava AJ for preparing this judgment.
Ordinarily, as the senior judge hearing this appeal,
I should have
taken the responsibility to prepare the first judgment. This case is
concerned with an important feature of our adjectival
law.
[2]
The issue in question arises frequently in our courts. In the light
of the fact that my disallowing an amendment during the
course of a
trial was reversed in the Supreme Court of Appeal in the case of
Rustenburg Platinum Mines Limited v Industrial Maintenance
Plumbing
Services CC
1
,
I considered it proper that I should invite Bava AJ to commit his
conclusions to writing first. Bava AJ graciously acceded to
this
request. He has also conveniently summarized the relevant facts. I am
much indebted to Bava AJ.
[3]
During the course of hearing the appeal, I became increasingly
concerned that, despite my inner conviction that the learned
magistrate had correctly dismissed the defendant’s application
to amend his plea and counterclaim, the weight of precedent
and
prevailing practice would compel the upholding of the appeal.
Following the British system, South African judges operate under
a
system of precedent.
2
In the case of Cassell & Co Ltd v Broome
3
the House of Lords made it clear that courts lower in the judicial
hierarchy may disagree with decisions of those that are higher
and
may even say so but they are bound to follow the decisions in higher
courts. This decision has been approved by our Supreme
Court of
Appeal in the case of S v Kgafela.
4
[4]
It has long been my conviction that the commencement of a trial is
the fulcrum upon which the courts’ stance in respect
of
applications for amendments to pleadings should be balanced. The
further away the parties are from the commencement of the trial,
the
easier it should be for a litigant to obtain an amendment and,
conversely, the deeper the parties are into trial and the nearer
they
may be to obtaining judgment, the more difficult it ought to be.
[5]
I am fortified in this conviction by reference to Halsbury’s
Laws of England in which it is stated that the function of
pleadings
is to
enable the parties to
decide in advance of the trial what evidence will be needed. From the
pleadings the appropriate method of
trial can be determined. (my
emphasis).
5
Furthermore,
as litigants approach a trial and, even more so, once a trial
commences, costs increase exponentially; there are not
infrequently
considerable logistical difficulties in securing the timeous
attendance of witnesses at court. As the trial progresses,
the court
hearing the matter will have begun to form impressions of witnesses
and develop a sense the direction in which the wind
may be blowing.
These factors mitigate against the more relaxed or ‘liberal’
attitude that may prevail before trial.
[6]
In the case of Robinson v Randfontein Estates Gold Mining Company
Limited
6
Innes CJ, who delivered the judgment with which the majority of the
court concurred, declined to interfere the trial court’s
refusal to allow an amendment. The trial court had refused to allow
the amendment on the ground of prejudice to the defendant.
The
amendment, if allowed, would have introduced a new factor into the
case: it would, almost certainly have involved the calling
of a
witness who had not been called.
7
[7]
More recently, the judgment of Caney J in Trans-Drakensberg Bank
Limited (Under Judicial Management) v Combined Engineering
(Pty)
Limited
8
has been one of the leading cases on the issue.
9
Caney J delivered a comprehensive review of the law. This judgment of
Caney J was approved by Corbett CJ, delivering the unanimous
judgment
of the appeal court in Caxton Limited and Others v Reeva Forman (Pty
Limited.
10
Judicial imprimatur was given, once again, by the Supreme Court of
Appeal in its unanimous judgment in Ciba-Geigy (Pty) Limited
v Lushof
Farms (Pty) Limited en ’n Ander.
11
Caney J held that ‘the primary principle’ was to allow ‘a
proper ventilation of the dispute between the parties’
and
another ‘the vital consideration’ was whether prejudice
could ‘be cured by an order for costs and, where
appropriate, a
postponement’.
12
[8]
In my past experience as an advocate appearing not only in courts in
South Africa but also in central Africa, ‘claims
sounding in
money’
13
were often treated with judicial hauteur. Counsel, protesting
against the law’s delays when a postponement was sought in
such
matters, would be told from the bench that ‘this case is only
about money’. The riposte would be delivered without
a trace of
irony. Made to feel that they were guilty of both a legal and a
social solecism for daring to think that it would be
wrong to
postpone a matter when it was ‘only about money’, lawyers
had little choice but to defer to the attitude from
the bench.
[9]
That such attitudes towards claims ‘sounding in money’
were expressed not only within South Africa but also outside
of the
country indicates that the attitude was neither peculiarly South
African nor confined to white males elevated to the bench.
It may
have had to do with the fact that judges were so steeped in the
traditions of classical scholarship that they came to believe
in the
conviction of the educated classes in pre-modern times that the only
patrimony that mattered was immovable property. This
attitude towards
immovable property resonated in the circumlocution, prevalent until
recent times, in which to be described as
a ‘person of
property’ was synonymous with being a landowner. Moreover, in
pre-modern times, litigation was the preserve
of the wealthy, with
the estates of landowners being largely impervious to any award that
a court may make in regard to claims
‘sounding in money’.
[10]
Modernity has fundamentally changed the importance of cash. This is
deftly summarized in the colloquial aphorism, ‘cash
is king’.
‘Modernity’ is a term that is not
amenable to easy definition. Generally, it refers to the period (and
the social conditions
and processes) consequent upon the
Enlightenment.
14
The period is marked by the rise of capitalism, increasing complexity
of economic institutions, industrial production, the market
economy,
large-scale social integration, the nation state and mass
production.
15
[11]
Those who doubt the importance of cash flow in modern societies, may
reflect upon the fact that the global economic crisis
that has
driven innumerable millions of human beings out of work around the
world and which may account for the loss of at least
500 000 jobs in
South Africa, had its roots in a ‘cash crisis’. The
efforts of governments and bankers around the world
to resolve this
crisis has predicated upon trying to facilitate the flow of cash.
Debtors who wait too long for payments due to
them are often forced
into insolvency thereby, with all the concomitant evils that flow
therefrom, including unemployment and a
loss of tax revenue for the
State. Those who are under the shadow of contingent liability also
need to know, sooner rather than
later, whether they have been
discharged from such liabilities.
[12]
Almost invariably, the decision by the courts to allow an amendment
is made by reference to the statement of the rule or practice
as
‘always’ to allow an amendment unless the party applying
for it has acted ‘male fide’ or the ‘injustice’
to the other side ‘cannot be compensated by costs’ or
words to similar effect. See, for example, within the area of
jurisdiction of this court, the following cases: Ferreira Deep
Limited v Olver,
16
Clayton v Feitelberg,
17
Pavie v St Croix,
18
Whittaker v Roos; Morant v Roos,
19
Rishton v Rishton,
20
Macduff & Co (in liquidation) v Johannesburg Consolidated
Investment Company Limited,
21
Bitcon v City Council of Johannesburg & Arenow Behrman & Co,
22
Rosenberg v Bitcom,
23
Union Bank v Woolff,
24
Smith v Williams; Smith v Kok,
25
Geldenhuys v Wilson,
26
Steel Equipment Company (Pty) Limited v Lurelk (Pty) Limited,
27
GMF Kontrakteurs (Edms) Bpk v Pretoria City Council,
28
Mabaso v Minister of Police,
29
O’Sullivan v Heads Model Agency CC
30
and Luxavia (Pty) Limited v Gray Security Services (Pty) Limited.
31
Similar views have been expressed by courts having jurisdiction in
other parts of the country.
32
[13]
In Bankorp Limited v Anderson-Morshead
33
Flemming DJP said that ‘Arguments that amendments are to be
refused only because of delay in seeking an amendment repeatedly
fail.’
34
In Four Tower Investments (Pty) Limited v André’s
Motors
35
Galgut DJP endorsed what he perceived to be ‘a gradual move
away from an overly formal approach’.
36
[14]
It is a short jump to the right (or the left, depending on one’s
perspective) to interpret the principle that an enquiry
should be
held as to whether any prejudice by an amendment
can be cured
by an order for costs and, where appropriate, a postponement as a
rule of practice as follows:
In
claims sounding in money, any potential prejudice by an amendment is
cured by a postponement and order for the costs wasted costs
occasioned by that postponement.
[15]
In
Krogman v Van Reenen
37
De Villiers DJP referred to the ‘manifold inconveniences of a
postponement’ and emphasized that a litigant could not
obtain a
postponement ‘as of right’ but had to show ‘reasonable
grounds’ therefor.
38
These observations were endorsed by Van Heerden J (as she then was)
in Embling and Another v Two Oceans Aquarium CC.
39
In that case, Van Heerden J described the attitude of the courts
towards amendments as ‘liberal’.
40
[16]
Nowhere, as far as I have been able to ascertain, has a superior
court been on record as having said something like this:
We
are now well advanced in a trial action. The amendment, if granted,
will necessitate the recalling of witness and may also necessitate
the need to subpoena witnesses whom it was not previously intended to
call by the other party. The litigant seeking the amendment
ought
reasonably to have known, a long time ago, what his case was all
about. If the amendment is granted, a postponement will
have to
follow. A postponement will result in a part-heard trial, bringing
about massive inconvenience not only to the other side
but also their
witnesses and this court as well. The registrar’s office will
be vexed. Even if this court makes a costs order
against the party
seeking the amendment, it is far from certain that the other side
will succeed in fully recovering costs upon
taxation. If a debtor
owes money, it is only right that the creditor is paid sooner rather
than later. Interest a tempore morae
does not relieve cash flow.
Conversely, if a plaintiff’s case is without merit, it matters
greatly for the defendant to be
discharged from liability sooner
rather than to have the millstone of litigation around the neck. The
application to amend is dismissed
with costs.
[17]
The principle that an amendment will be refused if the party seeking
it is mala fide (or, as it has sometimes been expressed
‘not
bona fide’) takes on a different colour once an application to
amend is brought before a trial court, rather than
a motion court
before trial has commenced. The reason for the metamorphosis is that,
ordinarily, it is inappropriate for a trial
judge to express an
opinion as to the credibility of witnesses before the parties have
closed their cases and argument has begun.
41
What is a judge to do if an application to amend is brought during
the trial in circumstances where it appears that the application
is
not bona fide? The court cannot say so. I do not think it is
appropriate for the ‘liberal approach’ to the ventilation
of the issues to prevail in such circumstances.
[18]
The only conceivable basis, in law, upon which we could interfere
with the decision of the learned magistrate to disallow the
amendment, would be to conclude that she decided the matter according
to a ‘wrong principle’.
42
I have been narrowly persuaded by Bava AJ that the learned magistrate
acted with appropriate judicial discretion in deciding to
disallow
the amendment. I am pleased that my inner convictions are able to
coincide with the order of this court.
[19]
The following is the order of the court:
The
appeal is dismissed with costs.
BAVA
AJ:
[20]
In this matter the Respondent (the Plaintiff in the Court a quo)
issued a summons out of the Randburg Magistrates' Court in
2002 where
it claimed R100 000,00 from the Appellant (the Defendant in the
Court a quo) arising out of a building dispute.
[21]
The trial in the matter commenced in 2009. The appeal record does
not contain a transcript of the proceedings before the Magistrate.
Both the Appellant’s Counsel and the Respondent’s Counsel
indicated that the appeal should be determined from the
documents
contained in the appeal record and the facts emanating therefrom.
[22]The
appeal is against the judgment and order handed down by the
Magistrate in the Court a quo where she dismissed the Appellant’s
application for leave to amend his plea and counterclaim. The facts
of the matter are sketched out by the Magistrate in her reasons
for
judgment where she states the following:
After the summons was
issued by the Respondent in 2002, the trial commenced in 2009.
There had been several
postponements in the matter at the instance of both parties andthere
were many costs orders against the
Appellant including costs of a
punitive nature.
The Respondent had
alerted the Appellant on the date of the commencement of the trial
in March 2009 of its intention to object
to evidence being led
outside that specified in the Applicant’s discovery affidavit
and more particularly in respect of
the specific items and the costs
of those items.
The Magistrate had on
the day that the trial began, in May 2009, raised her own concerns
with the Appellant regarding the approach
of the Appellant in
possibly seeking to amend his plea or counterclaim at a later stage.
It appears that the Magistrate had
indicated that an amendment that
would be brought at a later stage by the Appellant may result in
unnecessarily drawing out the
proceedings and may necessitate the
recalling of witnesses.
The Appellant, despite
that caution by both the Magistrate and the Respondent, elected to
proceed with the trial and not to amend
its plea and counterclaim at
the initial stage.
[23]
Prior to the trial, the Respondent amended its Particulars of Claim
and the Appellant also amended its plea and its counterclaim.
[24]
On the 17th of August 2010, the Appellant served a notice of
intention to amend his already amended plea to the Plaintiff’s
amended Particulars of Claim dated 24th June 2005 and to amend his
counterclaim. In this amendment the Appellant sought to, inter
alia,
increase the quantum of his damages from R84 456,66 to
R332 243,75. The Appellant sought to abandon R232 243,75
of his claim which was the portion that exceeded the monetary
jurisdiction of the Magistrates' Court.
[25]
On the 26th of November 2009, the Respondent filed a notice of
objection to the Appellant’s notice of intention to amend
and
the grounds of objection are summarised as follows:
That the trial in the
action had already commenced and two of the three expert witnesses
of the Respondent had already completed
their evidence and had
already been cross-examined.
That the Appellant had
not filed expert notices in respect of his damages claim and in view
of the fact that the expert witnesses
of the Respondent had been
cross-examined and re-examined that the Appellant would be able to
adapt the evidence, taking into
account the evidence led by the
Respondent’s expert witnesses as well as the cross-examination
and re-examination of those
witnesses.
The Respondent would
suffer extreme prejudice as a result of such evidence being
introduced by the Appellant and would lead to
another delay in
finalising the matter which, the Respondent states, would occur in
spite of repeated punitive cost orders against
the Appellant and by
the delay that the Appellant has caused in the matter.
If the proposed
amendment were to be granted, the Respondent would have to recall
its witnesses including the expert witnesses.
The Respondent indicated
that it will be unjustly and irretrievably prejudiced in that it is
incurring costs on a scale as between
attorney and own client as
well as what the Respondent regarded as the practicalities of the
case, more particularly, that the
Appellant at that stage had
insight into the Respondent’s expert evidence under
cross-examination and that the Appellant
could now prepare his
evidence at that late stage in opposition to such evidence.
[26]
On the 23rd of March 2011, the Appellant served a notice of set down
of the application in terms of Rule 55A(4) on the Respondent.
The
matter was set down for the 1st of July 2011. In support of this
application in terms of Rule 55A(4), the Appellant’s
attorney,
Michael Bernstein, deposed to an affidavit in terms of which he
indicated the following:
That the Appellant filed
two discovery affidavits, one in May 2009 and the other in October
2009. The discovery affidavit of
May 2009 contained a general
description of Defendant’s expenditure on building materials
and building costs but did not
itemise each item.
The trial proceeded
before the Magistrate and had run for 2 days on the 25th and 26th
May 2009 and thereafter was postponed sine
die after the
Respondent’s first two witnesses had testified.
On the morning of the
25th May 2009 and at Court and prior to the trial continuing, the
Respondent’s Counsel informed Mr
Bernstein that they would
object to any evidence from the Appellant where the evidence did not
comply with the schedule of the
discovery of May 2009.
Thereafter on the 26th
of May 2009 and after considering the statement, Mr Bernstein came
to the conclusion that the individual
documents should be specified
specifically and not generally and as a result thereof and after the
postponement, the Appellant
attested to a further discovery
affidavit in September 2009.
He indicates that after
the discovery affidavit was prepared in September 2009, it became
apparent that the Defendant’s
counterclaim had been grossly
under-calculated and that it became necessary for a proper
ventilation of the defence and for the
counterclaim that they be
amended as set out in Rule 55A(1).
RULE
55A OR SECTION 111 AMENDMENT
[27]
The Magistrate in her reasons for the judgment indicated that the
application should not have been brought in terms of Rule
55A(4) but
rather, as the trial had already commenced and evidence had already
been adduced by the Respondent, that the application
to amend falls
within the ambit of Section 111 of the Magistrates' Court Act 32 of
1944.
[28]
At the hearing of the appeal, the Appellant’s Counsel conceded
that the application ought to have been brought in terms
of Section
111 and not in terms of Rule 55A. The relevant portions of Section
111 read as follows:
“
111. Amendment
of proceedings
In any civil
proceedings, the court may, at any time before judgment, amend any
summons or other document forming part of the
record: Provided that
no amendment shall be made by which any party other than the party
applying for such amendment may (notwithstanding
adjournment) be
prejudiced in the conduct of his action or defence.
In civil proceedings an
amendment may be made upon such terms as to costs and otherwise as
the Court may judge reasonable.
...
...”
APPELLANT’S
SUBMISSIONS
[29]
In dealing with the amendment, the Appellant relies on the
submissions that an application for amendment will always be allowed
unless it is made mala fide or would cause prejudice to the other
party, which cannot be compensated for by an order for costs
or by
some other suitable order such as a postponement. In support of this
proposition, the Appellant relied on the decision of
Four Tower
Investments (Pty) Limited v Andre’s Motors
2005 (3) SA 39
(N)
where it was held at paragraph [15] that:
“
The
function of the court is, of course, to resolve disputes between
litigating parties, and justice can only be done if the real
issues
are defined in the pleadings and ventilated in court. For this
reason it is by now well established that an application
for
amendment will always be allowed unless it is mala fide or would
cause prejudice to the other party which cannot be compensated
for by
an order for costs or by some other suitable order such as a
postponement.”
[30]
The Appellant indicates that in the affidavit deposed to by the
Appellant’s attorney in support of the amendment, the
Appellant
tendered the costs and also agreed to the recalling of the expert
witnesses. The Appellant, accordingly, argues that
the Respondent
could not have suffered any prejudice and if there was any prejudice,
this would be ameliorated by a costs order
or alternatively a
postponement and the recalling of the witnesses.
[31]
The Appellant then further relies on the case of Luxavia (Pty) Ltd v
Grey Security Services (Pty) Ltd
2001 (4) SA 211
(W) where the Court
held at paragraph [10] that:
“
[10] In
Moolman v Estate Moolman and Another
1927 CPD 27
at 29, a ‘practical
rule’ which developed in a number of English cases was applied
being that ‘amendments will
always be allowed unless the
application to amend is mala fide or unless such amendment would
cause an injustice to the other side
which cannot be compensated by
costs ...’. A fuller and more recent statement of this rule is
to be found in the judgment
of Rose-Innes J, in Devonia Shipping Ltd
v M V Luis (Yeoman Shipping Co Ltd intervening)
1994 (2) SA 363
(C)
at 369 F-I :
‘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 mala fide or unless the amendment
would cause an injustice or prejudice to
the other side which cannot
be compensated by an order for costs or, in other words, unless the
parties cannot 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 ...’”
RESPONDENTS
SUBMISSIONS
[32]
The Respondent in its submission relied heavily on the judgment of
Neser J in the case of Florence Soap and Chemical Works
(Pty) Ltd v
Ozen Wholesalers (Pty) Ltd
1954 (3) SA 945
(T) where Respondent’s
Counsel submitted that the facts are akin to the current matter and
where Neser J stated at page 948
A-D as follows:
“
...
The object of pleadings is to define the issues in the action and the
failure by a party to plead causes of action or defences
of which it
is aware cannot be condoned if the only reason for the failure is a
desire to cross-examine witnesses before the issues
are pleaded. The
fact that some order in regard to costs could be made which would
compensate the other party is not the only
consideration. In the
present case, the trial had proceeded for 5 days and was nearing its
end before notice of the amendment
was given. Defendant is, in my
opinion, entitled to claim that the trial should proceed on the
issues raised in the pleadings
and that it should not at this late
stage be called upon to decide whether it would have proceeded to the
trial had the issues
sought to be raised in the amendment been
timeously pleaded.”
[33]
It is also interesting to note that the concept of the ‘modern
tendency’ of the Courts granting an amendment where
such
amendment facilitates the proper ventilation of the disputes between
the parties emanates from the judgment of Greenberg J
in Rosenberg v
Bitcom 1935 W.L.D. at 115 at page 118 where he stated:
“
Although
it has been stated that the granting of the amendment is an
indulgence to the party asking for it, it seems to me that
at any
rate the modern tendency of the Courts lies in favour of an amendment
whenever such an amendment facilitates the proper
ventilation of the
dispute between the parties.”
DELIBERATIONS
[34]
During argument, Willis J referred both Counsel to the case of
Rustenburg Platinum Mines Ltd v Industrial Maintenance Painting
Services CC
[2009] 1 All SA 275
where Willis J’s refusal to
allow the Plaintiff to amend its Particulars of Claim by adding two
alternatives to its cause
of action, allegedly so as to accord with
the evidence already tendered and after three witnesses had testified
on its behalf,
was reversed on appeal.
[35]
I have considered the current appeal in the light of the submissions
made by the Appellant and the Respondent and in light
of the
Rustenburg Platinum Mines Limited v Industrial Maintenance Painting
Services CC judgment that was handed to me by Willis
J. The crucial
aspect, to me, is the consideration of how a judicial officer who is
involved in a trial ought to exercise his
or her discretion when
faced with an application to amend during the trial.
[36]
In Commercial Union Assurance Co Ltd v Waymark NO
1995 (2) SA 73
(Tk), White J, at 77 F-I, set out the general principles governing
applications for amendment of pleadings and summarised them
as
follows:
The Court has a
discretion whether to grant or refuse an amendment.
An amendment cannot be
granted for the mere asking; some explanation must be offered
therefor.
The Applicant must show
that prima facie the amendment ‘has something deserving of
consideration, a triable issue’.
The modern tendency lies
in favour of an amendment if such ‘facilitates the proper
ventilation of the disputes between the
parties’.
The party seeking the
amendment must not be mala fide.
The amendment must not
‘cause an injustice to the other side which cannot be
compensated by costs’.
The amendment should not
be refused simply to punish the Applicant for neglect.
A mere loss of (the
opportunity of gaining) time is no reason, in itself, for refusing
the application.
If the amendment is not
sought timeously, some reason must be given for the delay.
THE
JUDICIAL DISCRETION
[37]
It is trite that each case has to be considered on its own facts.
The granting or refusal of an application for the amendment
of
pleadings is a matter for the discretion of the Court, to be
exercised judicially in the light of all the facts and circumstances
of the case before it. In this regard see GMF Kontrakteurs (Edms)
Bpk and Another v Pretoria City Council
1978 (2) SA 219
(T) and Zarug
v Parvathie NO
1962 (3) SA 872
(D).
[38]
A presiding officer who has been hearing evidence in a matter and
especially after the matter has proceeded to trial, is placed
in a
position where he/she is able to:
have regard to the
conduct and the demeanour of the litigants;
have regard to the
tensions that exist between the parties and how these are dealt
with;
have regard to the
progress of the matter and he/she will have a keen sense of what
would cause an injustice or prejudice to either
party;
the presiding officer
would also have an appreciation of whether a costs order would
compensate for the prejudice suffered by
a party or whether such
costs order would not serve the purposes of justice by placing the
parties in the same position as they
were prior to the amendment
being sought.
[39]
In the case before us, the Magistrate indicated that, in addition to
the delays caused by the Appellant which included punitive
costs
orders being granted, the Appellant filed an application dated 20th
August 2009, which is not part of the appeal record,
which
contradicts the allegation by the Appellant that he only be became
aware of his increased quantum later. The Magistrate in
having regard
to the contradictory affidavits indicated that from her reading of
the affidavits prepared in respect of the discovery,
it was apparent
to her that the Appellant was aware of its increased quantum prior to
the trial commencing in May 2009. The Magistrate
indicated that
there was no satisfactory explanation by the Appellant explaining the
discrepancy between the submission in the
application for leave to
amend and the affidavit of August 2009 which discrepancy the
Appellant attributed to “a mistake”.
[40]
The Magistrate considered that the prejudice suffered by the
Respondent due to the lengthy delays in the trial and that the
matter
had become unduly protected, due mostly to the conduct on the part of
the Appellant in the matter. The Magistrate was of
the view that the
amendment brought by the Appellant was to, once more, delay the
finalisation of the matter. The Magistrate considered
the
submissions of the Respondent as well as having regard to the fact
that the Respondent would suffer further prejudice should
the
Appellant be allowed the opportunity to tailor his evidence in
accordance to that of the Applicant’s expert witnesses’
testimony.
[41]
The Appellant sought to argue, before the Magistrate, that the delay
in bringing the application to amend was as a result of
the
non-availability of the presiding officer. This notion was dispelled
by the Magistrate who indicated that the Appellant had
from May 2009
when the further hearing of the trial was postponed until November
2010 to place his application to amend before
the Court. The
Appellant offered no explanation for such a delay. The Magistrate
found that the conduct of the Appellant had
been nothing short of
tardy and dilatory. She was not satisfied with the Appellant’s
delays in bringing the application
or the failure to properly compute
his claim was satisfactorily explained by the Appellant.
[42]
The Magistrate found that if the application was granted it would
result in further delays in the matter which would cause
prejudice to
the Respondent and which prejudice would not be cured by an
appropriate order of costs. It is not just one aspect
that the
Magistrate considered but rather the combination of facts and
circumstances of the conduct of the parties and the effect
that they
have that made her conclude that in the interests of justice that the
application for amendment must be refused.
[43]
In considering all the aspects of the matter, I am of the view that
the Magistrate exercised her discretion correctly by refusing
the
Appellant leave to amend his plea and counterclaim.
[44]
The Appellant has raised one additional aspect pertaining to the fact
that the Magistrate should have confined herself to the
affidavit
filed by Mr Bernstein. This, the Appellant argues, relates to the
fact that an application should only be considered
on the papers
before the Court. From my reading of Section 111, there is no
requirement that an applicant files an affidavit.
In these
circumstances the failure by the Respondent to file an opposing
affidavit does not preclude the Magistrate from having
regard to all
the facts of the matter. In fact, in my view, it is the duty of the
presiding officer to have regard to all of the
facts of the matter in
exercising his/her discretion.
THE
ORDER
[45]
Accordingly, I would dismiss the appeal with costs.
DATED
AT JOHANNESBURG THIS 30th DAY OF AUGUST, 2012
______________________
N.
P. WILLIS
JUDGE
OF THE HIGH COURT
______________________
A.BAVA
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Plaintiff: Adv. K. Ioulianou
Counsel
for the Respondent: Adv. I. Strydom
Attorney
for the Appellant: Michael Bernstein
Attorney
for the Respondent: Raymond C Kosviner
Dates
of hearing: 2nd August, 2012
Date
of judgment: 30th August, 2012
1
[2009] 1 All SA 275
(SCA)
2
See
Harris & Others v Minister of Interior & Another
1952 (2) SA 452
(A);
Fellner v Minister of Interior
1954 (4)
SA 523
(A). In
Trade Fairs and Promotions (Pty) Ltd v Thomson and
Another
1984 (4) 149 (T) Coetzee J (as he then was) seems to
have enjoyed giving an overview of the topic, while being astute to
not
‘re-inventing the wheel’ (at 183I-187H). In that
judgment Coetzee J refers to Professor Ellison Kahn’s
‘fascination’
with the subject and the ‘vast mass
of judicial material’ which he contributed to the subject in
the
South African Law Journal
and elsewhere (see 184G-185D).
See, also, Hahlo, H.R and Kahn, E. 1960.
The Union of South
Africa, the Development of its Laws and Constitution
. Cape Town:
Juta & Company at p30.
3
[1972] UKHL 3
;
[1972] AC 1027
;
[1972] All ER 801
(HL)
4
2003 (5) SA 339
(SCA) at para [3]
5
4
th
Edition (Reissue) Volume 36 (1) paragraph [1]. This
dictum
has been quoted with approval in Herbstein and Van
Winsen’s
The Civil practice of the High Courts of South
Africa
, 5
th
Edition by Cilliers, Loots and Nel, 2009,
Juta’s; Cape Town at p558.
6
1925 AD 173
7
At p213.
8
1967 (3) SA 632
(D)
9
1967 (3) SA 632
(D)
10
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at 565G-I
11
2002 (2) SA 447
(SCA) at paragraph [34]
12
At p638A-B.
13
The expression ‘claims sounding in money’ was used by
Pollak W. in
The South African Law of Jurisdiction
, 1937,
Hortors Limited: Johannesburg
at p25 and Broome JP in
Minister of the Interior v Cowley
1955 (1) SA 307
(N) at
p310-11.
14
See, for example, Giddens, A. 1998.
Conversations
with Anthony Giddens: Making Sense of Modernity
.
Stanford, California: Stanford University Press, p94; Leppert, R.
2004. “The Social Discipline of Listening” in
Drobnick,
J. Ed.
Aural Cultures.
Toronto:
YYZ Books, pp19-35; Norris, C. 1995. “Modernity” in
Honderick, T. Ed.
The Oxford Companion
to Philosophy
. Oxford: Oxford
University Press, p583.
15
Ibid
.
16
1903 TS 145
at 149
17
1903 TH 99
18
1903 TH 106
19
1911 TPD 1092
at 1102-04
20
1912 TPD 718
at 719
21
1923 TPD 309
22
1931 WLD 273
at 293
23
1935 WLD 115
at 117-9
24
1939 WLD 222
25
1952 (2) SA 682
(W)
26
1949 (4) SA 534
(T)
27
1951 (4) SA 167
(T) at 175D
28
1978 (2) SA 219
(T) at 222F-G
29
1980 (4) SA 319
(W) at 323D
30
1995 (4) SA 253
(W) at 255A-B
31
2001 (4) SA 211
(W) at paragraph [10]
32
See, for example
Callaghan v Callaghan
(1882) 2 EDC 251
;
Trustees of Pentz v Van Druten
(1886) HCG 81;
Levy v Rose
(1903) 20 SC 189
at 193;
Van Gend & Sons and Van Gend’s
Brothers’ Trustee v G A G Van Gend & H J Van Gend
1913
EDL 114
at 120-1;
Thomas v Thomas
1914 CPD 310
at 311-3;
Vorster v Van Der Walt; Van Eetveldt v Vorster
1914 EDL 303
at 305-6;
Norton v Crooks
1914 EDL 532
at 536-7;
De Wet v
Bouwer
1918 CPD 433
at 438-9;
Winshaw v Gie Bros
1920
CPD 662
;
Krogman v Van Reenen
1926 OPD 191
;
De Lange v
Herman & Co
1930 EDL 137
at 139;
Fish Hoek Village
Management Board v Romain
1932 CPD 304
at 307;
Cecil v
Champions Limited
1933 OPD 27
;
Perlman v Zoutendijk
1934
(1) PPH F68 (C);
Lawson & Kirk v SA Discount Acceptance
Corporation (Pty) Limited
1937 (2) PH F129 (C);
Wehmeyer v
Williams Hunt & Brook Limited
1940 CPD 511
at 513;
Coetzee v Steyn
1955 (3) SA 48
(O);
Heeriah v Ramkissoon
1955 (3) SA 219
(N);
Zarug v Parvathie NO
1962 (3) SA 872
(D)
at 876D-E;
Simmons NO v Gilbert Hamer & Co Limited
1963
(1) SA 897
(N);
Euroshipping Corporation of Monrovia v Minister
of Agriculture
1979 (2) SA 107072
(C);
Meyerson v Health
Beverages (Pty) Limited
1989 (4) SA 667
(C);
Benjamin v Sobac
SA Building & Construction (Pty) Limited
1989 (4) SA 940
(C)
at 957H-958B;
Devonia Shipping Limited v MV Luis (Yeoman Shipping
Co Limited Intervening)
1994 (2) SA 363
(C);
Commercial Union
Assurance Co Limited v Waymark NO
1995 (2) SA 73
(Tk);
Embling
and Another v Two Oceans Aquarium CC
2000 (3) SA 391
(C) AT
694H-695D
33
1997 (1) SA 251
(W)
34
At 253E-F
35
2005 (3) SA 39
(N)
36
At paragraph [19]
37
1926 OPD 191
38
At 194-5
39
2003 (3) SA 691
(C) at 695C
40
Ibid
.
41
See
Vilakazi v Santam Assuransie Maatskappy Beperk
1974 (1)
SA 23
(A) at 26G-27A
42
See
the case of the
National Coalition for Gay & Lesbian Equality v Minister of Home
Affairs
2000 (2) SA 1
(CC) at para
[11].
Similar views have been expressed in
Ex parte
Neethling & Others
1951 (4) SA 331
(A) at 335E;
S
v Kearney
1964 (2) SA 495
(A) at 504B-C.