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[2014] ZAGPJHC 358
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Margro v Amalgamated Beverages Industries (2005/2986) [2014] ZAGPJHC 358 (3 December 2014)
REPUBLIC OF SOUTH
AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 2005/2986
DATE:
03 DECEMBER 2014
In the matter
between:
MELVIN
MARGRO
............................................................
APPLICANT/PLAIINTIFF
versus
AMALGAMATED
BEVERAGES
INDUSTRIES
.................................................................
RESPONDENT/DEFENDANT
J U
D G M E N T
TWALA AJ:
[1] On 9 December
2013, the plaintiff filed its notice of intention to amend its
particulars of claim in terms of Rule 28 of the
Uniform Rules of
Court. The Defendant objected to the proposed amendment, in so far as
the alternate claim particularised in paragraph
9 of the plaintiff’s
proposed notice to amend its particulars of claim. The grounds of the
objection are as follows:
I. The right of
action to be introduced by the proposed amendment has become
prescribed on 27 January 2007;
II. The plaintiff is
mala fide and the defendant would suffer prejudice should the
amendment be allowed;
III. The proposed
amendment does not disclose a cause of action.
[2] It is common
cause that the plaintiff brought an action against the defendant in
2005 which action is defended by the defendant.
The cause of action
is based on a written agreement concluded between the parties in
2003.
It is not in dispute
that the plaintiff had a contractual relationship with the defendant
and that the plaintiff used Melgro Services
CC, as a vehicle to
discharge its obligations in terms of the contract.
[3] The plaintiff
has effected two amendments to its particulars of claim previously
which amendments necessitated consequential
amendments by the
defendant of its plea. In December 2013, the plaintiff filed this
notice of amendment which is the subject of
this application.
[5] The Defendant
argues that the conclusion of the agreement between the parties is
common cause. There has been no issue between
the parties in
relation to the special circumstances existing at the time of the
conclusion of the agreement. The amendment brings
a claim for
special damages, which has all along not been an issue in the
particulars of claim. Therefore the right of action
which is
introduced by the amendment became prescribed on 27 January 2007.
[6] It is apparent
that when the plaintiff effected amendments to its particulars of
claim previously, the defendant responded
by amending its plea. In
its amended plea, the defendant raised the issue of the relationship
between the plaintiff and Melgro
Services CC. The defendant pleaded
that the plaintiff should have joined the close corporation as a
party in these proceedings.
[7] For a better
understanding of the proposed amendment, I deem it appropriate at
this stage to outline the proposed amendment.
I do not intend to deal
with the amendment that is not subject of the objection. I will deal
with the alternative to paragraph
8 of the plaintiff’s
particulars of claim, the proposed paragraph 9 to the particulars of
claim, which reads as follows:
“ 9.1 When the
parties concluded the Phase 3 Cartage Agreement in casu they were
aware of the following facts and circumstances
and the Phase 3
Cartage Agreement in casu was entered into on the basis of the
following facts:
9.1.1 In or about
1992 the Defendant implemented what it called an owner/driver scheme
as part of the Defendant’s black economic
empowerment and
transformation initiatives so as to empower previously disadvantaged
persons in the employ of the Defendant. The
owner/driver scheme and
the Cartage Agreements, were concluded for the benefit of the
Defendant as well as the employees of the
Defendant for the
empowerment of such employees to become contractors so as to be able
to render services to the Defendant as owner/driver
as opposed to
being employees. To this end:
9.1.1.1 in order to
apply to become owner/drivers applicants had to have been employed
with the defendant for more than 2 years;
9.1.1.2 the
Defendant would only contract with an applicant to become and
owner/driver, in his personal name so as to ensure that
the
owner/driver remained contracted to the Defendant;
9.1.1.3 the
owner/driver had to be prepared to conduct his business of cartage
through the vehicle of a close corporation for the
sake of inter alia
VAT and statutory requirements;
9.1.1.4 the
Defendant would not be contracting with such close corporation;
9.1.1.5 the
Defendant preferred that owner/driver used the Defendant’s
preferred financial service provider namely M Melnick
Financial
Services for all financial and business needs, from the registration
of a close corporation to any and all other required
services
rendered by the aforesaid M Melnick Financial Services.
9.1.2 In accordance
with the aforestated, and in anticipation of alternatively pursuant
to conclusion of the Phase 2 Cartage Agreement
concluded between the
Plaintiff and the Defendant in and about 1998, M Melnick Financial
Services had registered Melgro Severices
CC of which the plaintiff
has at all material times been the sole member.
9.1.3 At all
material times the Plaintiff conducted his business of cartage and
obligations as a cartage contractor, to the Defendant
through the
vehicle of Melgro Services CC.
9.2 At all material
times the Plaintiff and the Defendant contemplated that were the
Defendant to breach the phase 3 Agreement,
any damages suffered would
be suffered by the Plaintiff notwithstanding that the Plaintiff
conducted his business through Melgro
Services CC and such damages
would consist of the Plaintiff’s loss of income (in whatever
form) from Melgro Services CC.
9.3 Accordingly the
Plaintiff’s damages suffered as a result of the Defendant’s
breach are the loss of the income and
profits which the Plaintiff
would have generated through Melgro Services CC but for the
Defendant’s breach.
9.4 Any further
reference to the Plaintiff is a reference to Melgro Services CC and
vice versa where the context requires.”
[8] In my view the
plaintiff’s proposed amendment does not introduce a new right
of action. It amplifies the relationship
between the plaintiff and
Melgro Services CC. Melgro Services CC is not a party to these
proceedings and it is not necessary to
join it in these proceedings,
since there is no contractual relationship between Melgro Services CC
and the defendant. The close
corporation was merely a vehicle with
which the plaintiff discharged its cartage obligations to the
defendant. Therefore, the issue
of prescription does not arise in
this instance. Further, prescription is a special plea which the
defendant is entitled to raise
and can be properly dealt with at the
trial of the matter.
[9] The defendant
argues further that the plaintiff is mala fide in bringing the
amendment five years after it indicated it wanted
to amend its
particulars of claim. The plaintiff will suffer prejudice should the
amendment be allowed. It is further submitted
that the proposed
amendment is tantamount to a withdrawal of an admission and that the
facts and circumstances surrounding the
conclusion of the agreement
were not an issue between the parties. The plaintiff is required to
give a full explanation to show
his bona fides in seeking the
amendment and that no prejudice would be suffered by the defendant
should the amendment be allowed.
[10] The plaintiff
argues that there is no prejudice to be suffered by defendant because
of the amendment, since the trial of the
matter is in February 2015.
Time is not of the essence in this regard. The defendant has failed
to detail the prejudice it could
suffer should the amendment be
allowed. The only concern of the defendant is that the matter is
almost 10 years old and employees
of such a big company come and go.
It would be difficult, if not impossible, to find the people who were
involved at the time the
agreement was concluded between the parties.
[11] It is trite
that an amendment to the pleadings can be effected at any time before
judgment in the matter. I agree with the
plaintiff in this regard
that time is not of essence in this proposed amendment, since the
trial of the matter is only in February
2015. The plaintiff will
have ample time to effect an amendment to its plea should that be
necessary. The issue that the employees
of the defendant, who were
present at the time of the conclusion of agreement, might have left
the employ of the defendant now
is not an issue. The defendant has
been aware of this action since 2005 and of the plaintiff’s
intention to amend its particulars
of claim since 2009. Therefore,
the defendant should have made suitable arrangements in this regard.
I therefore accept the view
that the defendant has not shown that the
plaintiff is mala fide in bringing this proposed amendment at this
stage of the proceedings.
I am of the view that there appears to be
no prejudice that the defendant may suffer should the amendment be
allowed.
[12] I disagree that
the proposed amendment is tantamount to a withdrawal of an admission.
The conclusion of the contract between
the parties is not in dispute.
The amendment does not bring a new cause of action but simply
amplifies the relationship between
the defendant, the plaintiff and
the close corporation. It amplifies the factual basis upon which the
contract was entered into
by the parties. It does not withdraw the
admission that the parties concluded a contract and that the
plaintiff’s claim is
based on the terms of the contract.
[13] Having regard
to the facts and circumstances of this matter, I therefore make the
following order:
13.1 The application
for leave to amend the plaintiff’s particulars of claim is
granted.
13.2 Plaintiff to
serve and file its amended pages within 10 days from the date of this
order.
13.3 Costs are
reserved.
TWALA
ACTING JUDGE OF
THE HIGH COURT JOHANNESBURG
DATE OF HEARING:
27 October 2014
DATE OF JUDGMENT:
03 December 2014
COUNSEL FOR
PLAINTIFF: SR WILLIS
ATTORNEYS OF
PLAINTIFF: PATELIA-CACHALIA ATTORNEYS
COUNSEL FOR
DEFENDANT: AJ EYLES SC
ATTORNEYS OF
DEFENDANT: CLIFF DEKKER INCORPORATED