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[2015] ZAGPJHC 82
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Licinio and Others v Imvula Quality Protection (Pty) Ltd (2009/15228) [2015] ZAGPJHC 82 (20 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2009/15228
DATE: 20 MARCH 2015
In the matter between:
LOUREIRO,
LICINIO
....................................................................................
First
Plaintiff/Applicant
LOUREIRO,
VANESSA
...............................................................................
Second
Plaintiff/Applicant
LOUREIRO,
LUCA-FILIPE
.........................................................................
Third
Plaintiff/Applicant
LOUREIRO,
JEAN-ENRIQUE
..................................................................
Fourth
Plaintiff/Applicant
And
IMVULA QUALITY PROTECTION (PTY)
LTD
..........................................
Defendant/Respondent
JUDGMENT ON APPLICATION TO STRIKE
MATTER FROM THE ROLL
MAKUME, J:
[1] On the 11th February 2015 the
applicants served on the respondent a notice of intention to amend
particulars of claim. The
amendment which is directed at paragraph
9.3 of the particulars of claim reads as follows:
“The perpetrators stole property
belonging to the First Plaintiff alternatively the Second Plaintiff
to the value of R13 180
994.00. The schedule annexed hereto marked
‘B’ lists the aforesaid stolen property and the fair and
reasonable replacement
value of each such item, the First Plaintiff
has been compensated in respect of a portion of the stolen items to
the extent of
R2 056 422.00 leaving a shortfall of R11 124 572.00.”
[2] On the 25th February 2015 the
respondent promptly filed his notice objecting to the proposed
amendment and set out his grounds
of objection.
[3] A day later on the 26th February
2015 the applicants served and filed a notice of intention to amend
their particulars of claim
in terms of Rule 28(4). The application
was set down for hearing in the Trials Interlocutory Court on the 3rd
March 2015. The
application served before Masipa J on the 3rd March
2015 and was postponed to the Trials Interlocutory Court for the 17th
March
2015. There is disagreement between the parties whether the
postponement was by agreement or not.
[4] When the file was placed before me
it only had the notice of motion to amend supported by affidavit as
well as the respondent’s
notice of objection. Counsel for the
respondent informed me in chambers that there is an application to
strike the application
from the roll as it should not be heard in the
Trials Interlocutory Court.
[5] When the matter was called it was
only then that I was handed a full set of the papers containing not
only the application to
strike but also the answering affidavit in
the application to amend as well as the answering affidavit in the
application to strike.
[6] I allowed the parties to argue the
application to strike and reserved by ruling until Friday the 20th
March 2015 on which day
the parties will also appear to seek
certification of trial readiness for the 15th April 2015.
[7] The respondent is the applicant in
the application to strike the matter from the roll. However, to
avoid confusion I shall
refer to the parties in the title used in the
application to amend.
[8] At the heart of the application to
strike is whether the Practice Directive for 2015 First Term of this
Court envisages that
applications of this nature should be heard by
this Court or should be heard in the normal opposed motion court.
[9] The respondent argues that this
type of application should be heard in the normal court and says that
paragraphs 4.2 and 4.3
of the practice directive exclude applications
such as the one before me. The applicants argue that Uniform Rule
6(11) governs
interlocutory applications and that the Trial
Interlocutory Court was specifically designated for such
applications.
BACKGROUND HISTORY
[10] This matter concerns a claim
instituted by the applicants against the respondent for payment of
contractual and delictual damages
arising out of a guarding service
contract.
[11] The action served before Satchwell
J in the year 2011 who found in favour of the applicants on the
merits there having been
an agreement to separate merits from
quantum. The respondent was in turn successful at the Supreme Court
of Appeal which set aside
the judgment by Satchwell J. This prompted
the applicants to appeal the SCA judgment to the Constitutional. The
Constitutional
Court delivered judgment in March 2014 and found in
favour of the applicants thus reinstating the Satchwell judgment.
[12] The issue of quantum is to be
dealt with on the 15th April 2015 provided that a certificate of
readiness for trial shall have
been sanctioned by this Court.
AMENDMENT OF PLEADINGS IN GENERAL
[13] It is trite law that with consent
of other parties amendments may be made at any stage of the
proceedings and in the event
of an objection an application to court
may be made at any stage before judgment. This procedure is
regulated by Rule 28. In
the matter of Waja v Orr
1931 TPD 149
the
court indicated that applications for material amendments to
pleadings should be made before trial so that pleadings would
be
settled by the time of hearing.
RULE 6(11) AND PARAGRAPHS 4.2 AND 4.3
OF THE PRACTICE DIRECTIVE
[14] Rule 6(11) reads as follows:
“Notwithstanding the aforegoing
subrules interlocutory and other applications incidental to pending
proceedings may be brought
on notice supported by such affidavits as
the case may require and set down at a time assigned by the Registrar
or as directed
by a judge.”
[15] The applicants rely to a large
extent on this rule and argue that this Court is the correct forum to
deal with the amendment.
The applicants themselves set the
application for hearing on the 3rd March 2015. It was not a date
assigned to them by the Registrar
nor by a Judge hence the respondent
objected to the matter being set down. At paragraph 7 of the founding
affidavit to the application
for striking the defendant speaking
through its attorney Jacobus Stephanus Marais says the following:
“On 26 February 2015 during a
telephone conversation I had with the Plaintiff’s attorney
Burton Meyer he confirmed that
the matter would be removed from the
roll of 3 March 2015. No agreement was reached regarding re-enrolment
of the application for
17 March 2015. It was agreed that the date
for enrolment of the application be discussed at the parties’
pre-trial conference.”
[16] The applicants confirm in their
answering affidavit that no agreement was reached on the re-enrolment
of the application.
The applicants say they thought it prudent to
enrol the matter for the 17th March 2015 so as ensure that the matter
is ready for
trial on 15 April 2015.
[17] It is clear that the applicants
want this Court to treat this application as an urgent matter without
saying so in many words
even though their urgency is self-created.
The High Court judgment by Satchwell J which was handed down on the
30th September
2011 found that the respondent is liable in contract
to the first applicant for the loss/damage he the first applicant
suffered
as a result of the robbery on 22nd January 2009. That
judgment was upheld by the Constitutional Court when it delivered
judgment
on the 20th March 2014 in the following terms:
“3. The order of the Supreme
Court of Appeal is set aside and the order of the High Court is
replaced with the following order:
(a) The Respondent is declared liable
in contract to the First Applicant for whatever damages may be
proved.”
[18] The applicants waited some 12
months from the time of the Constitutional Court judgment to bring
the amendment. There is nowhere
in the affidavit where the
applicants explain why they waited so long to bring this application
to amend.
[19] It is clear that the amendments
that the applicants seek to effect are material in that firstly the
amendment seeks to introduce
the second applicant as a direct
beneficiary of the judgment on contractual liability. Secondly, it
seeks to alter the calculation
of quantum from market value to
replacement value. These amendments are material and in view of the
objection raised cannot be
dealt with as a matter of urgency in a
Trial Interlocutory Court.
[20] The Trial Interlocutory Court like
the urgent court as was said by his Lordship Cachalia J (as he then
was) in the matter of
Digital Printers v Riso Africa (Pty) Ltd Case
No 17318/02 WLD a judgment delivered on the 4th February 2003 that
the urgent court
is not geared to dealing with a matter which is not
only voluminous but involves some complexity and even some novel
point of law.
The fact that the litigants have chosen eminent senior
counsel from the bar to represent them serves to emphasise this
point.
[21] The sentiments and thoughts
expressed in that matter by Cachalia J apply equally to the matter
before me. The rules and directives
contained in the Practice Manual
are there to assist judges to prepare for and hear matters
expeditiously. The rules and directives
were introduced to assist
the judge who is to hear matters to be able to properly prepare for
the hearing. In this instance the
Trial Interlocutory Court was
introduced to sift non-compliance with the rules and to make sure
that when a matter is certified
ready for trial all obstacles shall
have been cleared and the issues for trial are clearly defined.
[22] Paragraphs 4.2 and 4.3 of the
Trial Interlocutory Court read as follows:
“4.2 This Court will in
particular deal with all instances of non-compliance in trial matters
with the rules and the practice
manual and practitioners are
encouraged to use Rule 30A.”
[23] Paragraph 4.3 which expands on the
category of matters envisaged in 4.2 reads as follows:
“4.3 Among the matters which this
Court will deal with will be the failure to deliver timeously any
practice note or heads
due in the trial matters a failure to sign a
rule 37 minute promptly, a failure to comply timeously with any
undertakings given
in a rule 37 conference, or the failure to secure
an expert for a meeting of experts.”
[24] The language used in the practice
directive is simple and uncomplicated and what has not been mentioned
therein is by implication
excluded. An opposed application for leave
to amend particulars of claim or a plea do not fit into the
description of matters for
the Trials Interlocutory Court.
[25] The applicants were warned on
numerous occasions especially on the 2nd March 2015 by respondent’s
attorneys in a letter
not to enrol the application to amend in the
Trials Interlocutory Court. The applicants did not heed the warning
and proceeded
to enrol the matter without consulting the respondent.
[26] In my view the applicants has set
the application to amend in the wrong court. Accordingly I make the
following order:
1. The application for leave to amend
the plaintiff’s particulars of claim is struck off from the
roll.
2. The applicants are ordered to pay
costs of this application including costs of two counsel.
DATED at JOHANNESBURG on this 20th
day of MARCH 2015.
M A MAKUME
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING: 17TH MARCH 2015
DATE OF JUDGMENT: 20TH MARCH 2015
COUNSEL FOR APPLICANTS/
RESPONDENTS IN THE APPLICATION
TO STRIKE ADV W VERMEULEN
INSTRUCTED BY MESSRS CLIFFE DEKKER
HOFMEYR INC JOHANNESBURG
COUNSEL FOR THE RESPONDENTS/
APPLICANTS IN THE APPLICATION
FOR STRIKING FROM THE ROLL ADV
HELENS
INSTRUCTED BY MESSRSADAMS &
ADAMS
SANDTON