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[2012] ZAGPJHC 190
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Siyathenga Property One (Pty) Ltd v Net One Applied Technologies SA Ltd (265/2010) [2012] ZAGPJHC 190 (5 September 2012)
IN THE
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE NO:
265/2010
DATE:
2012-09-05
In the matter between
SIYATHENGA PROPERTY ONE (PTY)
LIMITED
.........................
Plaintiff
A
nd
NET ONE APPLIED TECHNOLOGIES SA
LIMITED
..................
Defendant
J U D G M E N T
WILLIS, J:
[1] This is an application brought by the
plaintiff for relief to amend its plea to the defendant’s
counter claim in terms
of Rule 28 (4) of the Uniforms Rules of Court.
[2] The plaintiff’s notice of attention to
amend its plea was filed on 19 April 2012. On 4 May 2012 the
defendant delivered
a notice of objection to the plaintiff’s
notice of intention to amend, in which it raised three grounds of
opposition to
the proposed amendments. In consequence, the plaintiff
brought a substantive application for leave to amend, supported by
affidavit
setting out the circumstances under which it discovered
that certain amendments to its plea were, it so claims, required as
well
as the details relating to such amendments and the necessity
therefor.
[3] The action was set down for trial on 20 March
2012, but was removed from the roll by agreement between the parties.
It was also
agreed that the matter would be re-enrolled once the
issues relating to the amendments had been dealt with and that the
action
was thereafter ready for hearing.
[4] The plaintiff proposes to introduce amendments
that will have the following two consequences. The first is the
introduction
of a new defence to the defendant’s counter claim
for payment. The second is the withdrawal of an admission that was
previously
made.
[5] In the affidavit in support of the application
for leave to amend, the plaintiff alleges as follows at paragraph
13:“The
defendant’s counter claim against the plaintiff
is for payment of an amount allegedly payable in terms of the lease
agreement
for tenant installation.”
[6] In paragraph 14 of this affidavit it is
alleged that: “In essence the new defence is a denial of
liability by the plaintiff
on a basis that prior to the tenant
installation allegedly becoming payable, the plaintiff sold the
premises to a third party and
that in terms of the lease agreement
upon such sale the plaintiff’s obligation to the defendant were
to be deemed to have
been delegated to the third party...”
[6.1] In paragraph 16: “ Transfer of the
property from the plaintiff to the purchaser was duly registered on
25 June 2008...”
[6.2] In paragraph 18: “The defendant issued
the plaintiff with the tax invoice in respect of their alleged tenant
installation
claim on or about 3 October 2008.”
[7] I pause here to reflect that ex facie the
plaintiff’s own affidavit, it became aware of a critical fact
relating to this
application for amendment on 3 October 2008. Ex
facie the affidavit, the claim therefore has prescribed. I accept
that there
are certain circumstances provided for in the Prescription
Act that allow for the 3 year period that normally applies for
prescription
in respect of claims such as this to be extended but one
needs to look at the explanation that was afforded by the plaintiff
as
to why it seeks the amendment. This appears at paragraph 22:
“The reasonable and proper consideration was not given to the
issue at the time of pleading to the plaintiff’s counter
claim
is because, during the period August 2007 to February 2008 the
plaintiff’s holding company Pangon Properties Limited,
underwent a complete change in the management structure, including a
complete change in its management and its board of directors.”
[8] The effect of the withdrawal of the amendment
if the matter is that the defendant will be placed in a position
where, approximately
four years after it has submitted the invoice
giving rise to the claim and more than two years after the pleadings
have closed
in the matter, the defendant is now called upon to meet a
case which suggests that it has otherwise not complied with the
conditions
precedent to payment of the allowance.
[9] It is true that we in South Africa have a
liberal approach to amendments. The important is an qualification to
this liberal
approach which was set out in the case of Moolman v
Estate Moolman & Another,
1927 CPD 27
at 24 (which judgment has
been referred to with approval on several occasions in the Appellate
Division and the Supreme Court of
Appeal), which held that an
amendment would be disallowed where the parties cannot be put back
for the purposes of justice in the
same position as they were when
the pleading which it had sought to amend was filed.
[10] Ms Fischer who appears for the defendant
referred me to the case of South British Insurance Company Limited v
Glisson, 1963
(1) SA (289) in which relates to a situation where at a
late stage an amendment was sought that was disallowed by Muller J.
[11] In essence, the claim in this case has
prescribed, unless there are circumstances which allow for an
extension of time. The
explanation that has been given in claiming
an extension of time is this one appearing in paragraph 22, namely
that during the
period August 2007 to February 2008 the plaintiff’s
holding company Pangon Properties underwent a complete change in the
management structure, including a complete change in its management
and board of directors.
[12] This, it seems to me cannot, as a matter of
law, hold water. It is in effect a plea admisericordiam and it
cannot be allowed.
If we were to allow this kind of explanation to
permit this kind of amendment, we might as well tear up the
Prescription Act.
A party which is a company cannot rely on its own
internal difficulties as an excuse to avoid the consequences of
prescription.
[13] Accordingly, it seems to me that the proper
exercise of a discretion is to disallow the amendment.
The following is the order of the court;
The application for leave to amendment by the plaintiff is dismissed
with costs.
For and on behalf of the plaintiff: Advocate Rebelo
For and on behalf of the defendant: Advocate Fischer