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[2014] ZAGPJHC 78
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Ngwenya v Malete (3326/2013) [2014] ZAGPJHC 78 (22 April 2014)
REPUBLIC
OF
SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 3326/2013
In
the matter between:
STONEY
NGWENYA
Applicant
and
TOKOLOGO
MALETE
Respondent
J U
D G M E N T
MASHILE,
J
:
[1] This is an
application brought in terms of Uniform Rule 28. The Applicant
seeks leave to amend his particulars of claim
to remove a source of
complaint that has been pointed out by the Respondent.
[2]
The Respondent objects thereto on the ground that the proposed
amendment will not rid the particulars of claim of their vague
and
embarrassing nature.
[3]
The background facts are that the Applicant issued summons against
the Respondent wherein he claims payment of damages occasioned
by the
Respondent’s negligent failure to promptly serve and file the
Applicant’s claim for damages arising out of a
motor vehicle
collision against the Road Accident Fund.
[4] On
29 October 2013 following the service of the summons upon the
Respondent, the Respondent served and filed a notice of irregular
step in terms of Rule 30(2)(b) and Rule 23(1) in which he
singled out paragraphs 6.1 and 10 as being the source of complaint.
[5]
The complaint was that the Applicant avers in both paragraphs that he
and the Respondent entered into a verbal alternatively,
a written
mandate agreement in terms of which the Respondent agreed to
institute an action for damages against the Road Accident
Fund on his
behalf.
[6]
The Respondent stated in its notice that claiming that the agreement
was in writing alternatively, verbal rendered the particulars
of
claim vague and embarrassing in terms of Uniform Rule 18(6) and Rule
18(12).
[7]
The Respondent vied that t
he
Applicant’s averments as set out in his particulars of claim
were imprecise and uncertain on
what
the terms of the verbal or written agreements
were.
Furthermore, Applicant had omitted to attach
a
copy of the written contract.
[8]
In view of the above, the Respondent was
prejudiced
by the uncertainty
whether
there existed a written agreement or not. What’s more, argued
the Respondent, he was embarrassed on how to plead on
account of the
ambiguity.
[9]
The Applicant acknowledged that his particulars of claim were indeed
vague and embarrassing in that respect and accordingly
on 30 October
2013 delivered a notice of intention to amend his particulars of
claim by deleting the words “
alternatively
a written agreement
”
.
[10]
In response to the Applicant’s Rule 28 Notice, the Respondent
served and filed a Notice of Objection on 12 November 2013
to the
Applicant’s anticipated amendments contained in his Notice in
terms of Rule 28.
[11] The Respondent finds
the particulars of claim objectionable in that it does not comply
with Uniform Rules 18(4) and (12) and
23. The particulars fall
short of compliance with Rule 18(4) as it does not contain a clear
and concise statement of the
material facts and it is vague and
embarrassing as envisaged in Uniform Rule 23.
[12] In his paragraph 2.2
of his Notice of Objection the Respondent states that the Applicant
alleges in paragraph 6.1 of his particulars
of claim that:
“
...
the
Plaintiff...and the Defendant...entered into a verbal agreement of
mandate for the institution of an action for damages against
the Road
Accident Fund
.”
“
2.3
In paragraph 6.2 where the Plaintiff alleges that “
it was
explicitly alternatively tacitly further alternatively impliedly
agreed between the Plaintiff and the Defendant representative
...
2.4
In his subparagraphs 6.2.1 to 6.2.6, the Plaintiff suggests that
there was a contingency fee
agreement between the Plaintiff and the
Defendant. However, no such allegation is made.
2.5
Therefore the Particulars of Claim lack the necessary averment to
sustain a cause of claim.
2.6
Furthermore, it is unclear what the material terms of the verbal
agreement were.
3.
Accordingly
the Defendant is prejudiced by the uncertainty and furthermore
embarrassed on how to formulate his plea as a result
thereto.
4.
Plaintiff
alleges that the only terms of the verbal agreement were only those
explicit alternatively tacit or further alternatively
implied.”
[13]
The Applicant has pointed out that none of the complaints set out in
the Respondent’s Notice of objection were in the
original
notice by which he required the Applicant to remove the source of the
complaints that he had listed.
[14]
The Applicant detests the piecemeal objections and finds that they
are devoid of any merit whatsoever. Instead of attending
to
these further complaints raised in the Respondent’s objection,
he launched this application and implores this court to
make a
determination on whether the objection raised by the Respondent is
valid or not.
[15]
It is trite that the power of the court to allow amendment is limited
only by consideration of prejudice or injustice to the
opponent.
See Page B1-179 of
Superior Court
Practice
by Erasmus, Farlam, Fichardt &
Van Loggerenberg. The fact that the outcome of the amendment
may result in the one party
losing the case is no reason not to allow
an amendment.
[16]
The general approach is, it would seem, to tolerate amendments
especially in instances where the application to amend is not
characterised by mala fide and where such amendment will not cause
injustice or prejudice to the other party. The amendment
will
readily be granted in particular, where the injustice or prejudice
can be cured by either postponement or costs. See
Devonia
Shipping Ltd v MV
Luis
(Yeoman
Shipping Co Ltd Intervening)
1994
(2) SA 363 (C
),
O'Sullivan
v Heads Model Agency CC
1995
(4) SA 253
(W)
and
[zRPz]Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd
2001
(4) SA 211
(W).
[17]
The general approach that has been adopted by courts is that if
excipiability will render a pleading in its amended form indubitably
excipiable then the amendment should be declined. See in this
regard
Krishke v Road Accident Fund
2004 (4) SA 358
(W).
[18]
However, if the excipiability of the pleading is only arguable or can
be solved by the supply of particulars, then it becomes
appropriate
to grant the amendment where the other considerations are favourable.
[19] A party who feels
that he has been negatively affected by an amendment which should not
have otherwise been allowed by a court
should always be at liberty to
subsequently except to the amended pleading. [zRPz] Steyn J in
Pieters v Pitchers
1959 (3) SA 834
(T) quoting from
Walker
v Taylor
,
1934 W.L.D. 101
, stated:
“
I
may just point out that in the case of Walker v Taylor,
1934 W.L.D.
101
, the following was said in the head-note:
'When
proposed amendments to a summons or declaration are objected to on
the ground that they would oust the jurisdiction of the
Court, the
proper course is to allow the amendment to be made and then to except
to the amended declaration or plead specially
to the jurisdiction of
the Court
.’”
[20] The Respondent has
pointed out several ways in which he believes the Applicant’s
particulars of claim do not comply with
Uniform Rules 18(4) and 23
and I have uplifted these from the Respondent’s notice of
Objection and they are:
“
It does not
contain a clear and concise statement of the material facts
;
In paragraph 6.1 the
Plaintiff alleges, in his proposed amendment, that “
... the
Plaintiff...and the Defendant...entered into a verbal agreement of
mandate for the institution of an action for damages
against the Road
Accident Fund
”.
In paragraph 6.2 where
the Plaintiff alleges that “
it was explicitly alternatively
tacitly further alternatively impliedly agreed between the Plaintiff
and the Defendant representative...
”;
In his subparagraphs
6.2.1 to 6.2.6, the Plaintiff suggests that there was a contingency
fee agreement between the Plaintiff and
the Defendant. However, no
such allegation is made.
Therefore the Particulars
of Claim lack the necessary averment to sustain a cause of claim.
Furthermore, it is
unclear what the material terms of the verbal agreement were.
Accordingly the Defendant is prejudiced by the
uncertainty and
furthermore embarrassed on how to formulate his plea as a result
thereto.
It is uncertain whether
the Plaintiff alleges that the only terms of the verbal agreement
were only those explicit alternatively
tacit or further alternatively
implied.”
[21] I shall turn to each
of the above.
IT DOES NOT CONTAIN A
CLEAR AND CONCISE STATEMENT OF THE MATERIAL FACTS
[22] The basis on which
the Respondent makes this allegation is unclear as he does not
substantiate. The particulars of claim,
if the amendment is
allowed, will read that “
... the parties concluded a verbal
mandate agreement
” and not “
a verbal or written
agreement
”. I agree with the Applicant that the
particulars of claim sets out all the relevant material facts that
are necessary
and capable to sustain his cause of action. In
the absence of any explanation this objection must be turned down as
lacking
in merit.
In paragraph 6.1 the
plaintiff alleges, in his proposed amendment, that “
... the
plaintiff ... and the defendant ... entered into a verbal agreement
of mandate for the institution of an action for damages
against the
road accident fund
”.
[23] Like with his first
objection, the Respondent does not in any manner elaborate on his
objection other than just making the
above bare allegation.
There is nothing ambiguous or embarrassing about the aforesaid
allegation. In view of that,
the court cannot but dismiss the
objection.
In paragraph 6.2 where
the plaintiff alleges that “
it was explicitly alternatively
tacitly further alternatively impliedly agreed between the plaintiff
and the defendant representative...
”
[24] I can find no fault
with the manner in which the Applicant has made the above allegation
and in view of the lack of some kind
of demonstration that it is
validly objectionable, the court rejects it. Terms and
conditions of any contract, whether written
or verbal, can be implied
or tacit or express. Pleading in the manner the Applicant did
is perfectly in order.
In his subparagraphs
6.2.1 to 6.2.6, the Plaintiff suggests that there was a contingency
fee agreement between the Plaintiff and
the Defendant. However, no
such allegation is made.
In his subparagraphs
6.2.1 to 6.2.6, the plaintiff suggests that there was a contingency
fee agreement between the plaintiff and
the defendant. however, no
such allegation is made.
[25] The Applicant
asserts that he entered into a verbal mandate agreement with the
Respondent. He then proceeds to set out
the terms and
conditions of that agreement in Paragraph 6.2.1 to 6.2.6. The
Respondent insinuates that insofar as some of
the subparagraphs of
paragraph 6 suspend payment until settlement of the case, the
agreement is contingent and accordingly, the
Applicant should have
made the necessary allegations pertaining to a contingency fees
agreement as envisaged in the
Contingency Fees Act No.??? of
1997
.
[26] The Applicant
maintains that he concluded an oral mandate agreement and that there
is just no allusion of a contingency fees
agreement. In this
regard he referred me to the definition of a ‘contingency fees
agreement’ as set out in
Section 1
of the Act, which is defined
as follows:
“
'contingency
fees agreement
' means any agreement referred to in
section 2
(1).”
Section 2(1)
states:
“
Notwithstanding
anything to contrary in any law or the common law, a legal
practitioner may, if in his or her opinion there are
reasonable
prospects that his or her client may be successful in any
proceedings, enter into an agreement with such a client in
which it
is agreed –
(a)
that the legal practitioner shall not be entitled to any fees for
services rendered in respect
of such proceedings unless such client
is successful in such proceedings to the extent set out in such
agreement;
(b)
that the legal practitioner shall be entitled to fees equal to or,
subject to subsection (2),
higher than his or her normal fees, set
out in such agreement for any such services rendered, if such client
is successful in such
proceedings to the extent set out in such
agreement.
”
[27] The Respondent is
adamant that the agreement that he concluded with the Applicant is
simply a mandate agreement which is not
required by any legislation
to comply with the requirements delineated in the Act in respect of
contingency fees agreements.
That it is not a contingency fees
agreement is not arguable as it does not meet the requirements laid
down by the Act.
[28]
At common law attorneys are entitled to reasonable fees for work
actually done. What the Respondent tags as a mandate
agreement
is therefore nothing less than a contingency agreement that does not
comply with the Act because it seeks to postpone
the attorney’s
fees until payment of the capital claimed is paid. See in this
regard the case of
De la Guerre v Ronald
Bobroff& Partners Incorporated and others
[2013] JOL 30002
(GNP). The outcome of that judgment has since
been confirmed by both the Supreme Court of Appeal and the
Constitutional Court.
[29]
The court has not been asked to adjudicate on the validity or
invalidity of contingency agreements but rather it has been entrusted
with the duty of deciding whether or not the Applicant should be
permitted to proceed with the proposed amendment. The averments
that the Applicant has made in respect of the alleged mandate
agreement are in fact sufficient to sustain a cause of action.
[30]
Moreover, it is trite that an amendment will only be declined if
allowing it will result in the pleading intended to be amended
becoming excipiable. See
Krishke
v Road Accident Fund
SA
(supra).
If
the Respondent feels strongly that the pleading that the Applicant
aims to amend will be excipiable, he still stands a chance
to set
down the exception for argument before another court. It was
therefore hasty for the Respondent to have objected to
the amendment
at this stage.
[31]
The Applicant has ardently argued that the general rule that the
party proposing the amendment bears the costs of the amendment
should
in light of the facts of this matter be varied. The Respondent,
contended the Applicant, should not have objected
for the second
time. He wasted time in that he brought these applications
piecemeal instead of easily congesting them into
one.
[32]
In consequence of the manner in which the Respondent dealt with this
matter, the Applicant was compelled to unnecessarily direct
energy
towards the preparation and argument of the second objection. I
cannot but agree with the Applicant that he incurred
unnecessary
costs and for that matter I am prepared to depart from the general
rule as delineated above and make a somewhat unprecedented
order
directing the Respondent to bear the costs of the amendment .
[33]
In the result I make the following order:
1.
The application to amend
succeeds; and
2.
The Respondent is to pay the costs.
__________________________________________
B
MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing: 3 March 2014z
Date
of Judgment: 22 April 2014
Counsel
For Applicant: Adv. Michael Suttner
Instructed
by: Norman Berger & Partners Inc.
Counsel
For Respondent: Adv. ME Mathaphuna
Instructed
by: Malete Attorneys