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[2020] ZAGPJHC 263
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Nedbank Limited v RVI Consulting CC and Another (2015/24887) [2020] ZAGPJHC 263 (28 October 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION JOHANNESBURG)
Case
Number:
2015/24887
REPORTABLE
NO
OF INTEREST TO
OTHER JUDGES
NO
REVISED
28 OCTOBER 2020
SIGNATURE
In
the matter bet
NEDBANK
LIMITED
Applicant/Plaintiff
and
RVI
CONSULTING CC
First
Respondent/Defendant
NAGEL,
CORA VANESSA
Second
Respondent/Defendant
JUDGMENT
HEARD
REMOTELY VIA TEAMS PLATFORM
JT
BOLTAR AJ
INTRODUCTION
1.
In
2015 the Applicant (“Nedbank”) issued a summons in which
it claimed payment from the Respondents of R200 400.
Nedbank
contends that this amount was advanced to the First Respondent
(“RVI”) on overdraft.
2.
The
Respondents filed a notice of intention to defend and Nedbank brought
a summary judgment application. That application
was
unsuccessful and, in December 2015, the Respondents filed their plea.
3.
In
May 2020, Nedbank notified the Respondents that it intends to amend
its particulars of claim in terms of Uniform Rule of Court 28(1),
by replacing them with the particulars of claim attached to Nedbank’s
Rule 28(1) notice. The Respondents objected and
Nedbank seeks
an order that it be allowed to amend its particulars of clam under
Rule 28(4).
FACTS
4.
It is common cause that RVI opened a
current account with Nedbank, that in 2011 Nedbank approved a R200
000 overdraft facility for
RVI on that account (the “Original
Overdraft Facility”) and that in 2010 a suretyship was signed
by the Second Respondent
(the “Original Suretyship”).
The Original Suretyship bound the Second Respondent as surety for the
repayment
by RVI of any amount owed to Nedbank (subject to the amount
recoverable from the Second Respondent not exceeding R200 000).
5.
It is also common cause that RVI
subsequently applied to Nedbank for an increase to RVI’s
overdraft limit of R200 000 and
that Nedbank increased that limit to
R550 000 (the “2013 Overdraft Facility”). A written
agreement referring
to an “
Overdraft
facility
” of “
R550
000.00 with a once off reduction on 10/05/2013 back to R200 000.00”
was signed on 7 May 2013. This agreement (the “2013
Overdraft Agreement) is attached to Nedbank’s current
particulars
of claim and the correct interpretation of its terms are
in dispute.
6.
In May 2013, a second deed of suretyship
was signed by the Second Respondent (the “2013 Suretyship”).
The 2013 Suretyship
bound the Second Respondent as surety for the
repayment by RVI of any amount owed to Nedbank (subject to the amount
recoverable
from the Second Respondent not exceeding R550 000).
The 2013 Suretyship is attached to Nedbank’s current
particulars
of claim and the correct interpretation of its terms are
in dispute.
7.
On or about 10 May 2013, RVI paid R350 000
to Nedbank. The effect and nature of that payment is in
dispute.
THE
AMENDMENT
8.
In
its current particulars of claim, Nedbank alleges that RVI’s
current account became overdrawn, that Nedbank is consequently
entitled to claim immediate repayment of the amount owed by RVI in
terms of that account, and that the amount owed by RVI “
in
terms of the current account is the sum of R200 400.02 together
with interest thereon …”.
If Nedbank is allowed to amend its particulars of claim, those
allegations will also be contained in its new particulars.
9.
The
current particulars of claim state that RVI conducted the current
account pursuant to the 2013 Overdraft Agreement and that
the Second
Respondent signed the 2013 Suretyship. If Nedbank is allowed to
amend its particulars, its new particulars will
state that the
overdraft facility provided by it to RVI was the 2013 Overdraft
Facility, alternatively the Original Overdraft Facility.
In
addition, such particulars will state that the Second Respondent is a
surety in terms of the 2013 Suretyship, alternatively
the Original
Suretyship. The 2013 Overdraft Agreement and the 2013
Suretyship, both of which are attached to Nedbank’s
current
particulars, will be attached to the new particulars. The new
particulars will also attach the Original Suretyship,
which is not
attached to the current particulars.
10.
The
Respondents contend that the amendment would result in the
introduction of a new cause of action that has prescribed and should
consequently not be allowed.
LEGAL
PRINCIPLES
11.
The
principle is well-established that amendments ought to granted where
a refusal of them “
defeats
the objective of allowing an amendment, which is to secure proper
ventilation of the dispute between the parties and to
determine the
real issues between them, thereby doing justice
.”
[1]
In
Randa
v Radopile Projects CC
[2]
the
Court agreed with the following observation of Green
berg
J in
Rosenberg
v Bitcom
:
[3]
“
Although
it has been stated that the granting of the amendment is an
indulgence to the party asking for 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.”
12.
In
principle a new cause of action can be added by way of an amendment
where that is necessary to determine the real issue between
the
parties.
[4]
13.
In
CGU
Insurance v Rumdel Construction
[5]
Jones
AJA held that it is a
“
sound
premise that an amendment is permissible provided that the debt which
is claimed in the amendment is the same or substantially
the same
debt as originally claimed”
and
“
it
does not follow that by curing a defective cause of action by
introducing the contract upon which it really relies, the
plaintiff's summons
necessarily claims a different debt”
.
He went on to state:
[6]
“
I
accept that the amendment introduces a new insurance contract as the
basis for the claim for the loss which occurred in March
1996. But an
objective comparison between the original particulars of the claim
and the particulars of claim as amended leaves
me in no doubt that
although part of the cause of action is now a different contract, the
debt is the same debt in the broad sense
of the meaning of that word.
The
original pleadings convey, in that broad sense, that the debt was
payable by reason of a contractual undertaking to indemnify
the
plaintiff for the loss which occurred in March 1996, a loss
which is fully particularised and of which notice was allegedly
given
after the occurrence as required by the policy. That is also how it
is described in the amendment. I can find no grounds
for concluding
in this case that a change in the contract relied upon means that a
different debt was claimed.”
14.
During
the hearing, counsel for the Respondents confirmed that they do not
contend that Nedbank was
mala
fide
.
Therefore
,
the amendment sought by Nedbank
should
be allowed if it would not change the debt claimed by Nedbank in its
current particulars or the subject matter of Nedbank’s
claim
against RVI
.
In this regard, a distinction must be drawn between the debt claimed
by Nedbank and a cause of action. That distinction
was drawn by
Jones AJA in the following passage from his judgment in
CGU
Insurance
:
[7]
“… ‘
debt’
in the context of s
15(1) [of the
Prescription Act, 68 of 1969
] must bear ‘a wide
and general meaning’. It does not have the
technical meaning given to the ph
rase
‘cause of action’ when used in the context of pleadings
(
Standard Bank of South Africa Ltd v
Oneanate Investments (Pty) Ltd (in Liquidation)
). In
Evins
v Shield Insurance Co Ltd
Trollip
JA made a point of the distinction between ‘debt’ and
‘cause of action’, and describes the
latter in the
following way:
“‘
Cause
of action’' is ordinarily used to describe the factual basis,
the set of material facts, that begets the plaintiff's
legal right of
action and, complementarily, the defendant's ‘debt’', the
word used in the
Prescription Act.”
>
The
debt is not the set of material facts. It is that which is begotten
by the set of material facts. This Court has, furthermore,
recently
considered the meaning of the word ‘debt’ in the
Prescription Act on
a number of occasions. In
Drennan
Maud &
Partners
v Pennington Town Board
Harms JA
again emphasised that ‘debt’ does not mean ‘cause
of action’, and indicated that the kind
of scrutiny to which a
cause of action is subjected in an exception is inappropriate when
examining the alleged debt for purposes
of prescription. In
Provinsie
van die Vrystaat v Williams NO.
Olivier
JA warned against the danger of being misled by cases which fail to
distinguish properly between the debt and the
cause of action upon
which it is based. See also the
Sentrachem
Ltd
case
supra
and
Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and
Lacquers v Smit (supra
).”
15.
The
debt
claimed by Nedbank in its current particulars is the amount of R200
400 which it contends it advanced to RVI on overdraft and
is owed by
RVI in terms of the current account. The amendment would not
change that debt, nor would it change the subject
matter of Nedbank’s
claim against RVI. The r
eal
dispute between the parties is whether the First Respondent is liable
to pay the R200 400 that Nedbank contends it advanced
on overdraft
and is owed by RVI in terms of the current account
and,
if so, whether the Second Respondent is liable for that payment under
a suretyship. The proper ventilation of that dispute
would be
facilitated by the amendment
.
16.
The
amendment will result in Nedbank’s particulars of claim stating
certain facts that it contends brought about the alleged
debt in the
alternative. That does not render the particulars of claim
excipiable and is not a basis for refusing the amendment.
17.
There
is no prejudice to the Respondents
caused
by the amendment which cannot be compensated for by a costs order.
The fact that an amendment may cause a party opposing
it to lose
their case is not the kind of prejudice which will dissuade a court
from granting the amendment.
[8]
In
addition, delay in seeking an amendment is not a reason to refuse
it.
[9]
The
Respondents have the opportunity to gather such further evidence that
they deem necessary to prove they are not liable for the
R200 400 claimed by Nedbank, and the
amendment
will not deprive them of the opportunity to raise a plea of
prescription in respect of that alleged debt.
18.
Consequently,
the amendment sought by Nedbank is allowed.
19.
The
granting of an amendment is an indulgence to the party seeking it.
In terms of
Rule 28(9)
the general rule is that such party is “
liable
for the costs thereby occasioned to any other party”
.
There is no reason to depart from this general rule in this
application.
20.
The
following order is made:
20.1
The
application is allowed and the Applicant’s particulars of claim
are amended by replacing them with the particulars of
claim attached
to their
Rule 28(1)
notice.
24.2
The Applicant is to pay the costs occasioned by the amendment,
including the costs of this application.
_________________
JT
BOLTAR AJ
28
October 2020
Date
of Hearing: 26 October 2020
Judgment
Delivered: 29 October 2020
APPEARANCES;
On
behalf of the Plaintiff:
M Reineke
Instructed
by:
DRSM
Attorneys
On
behalf of the Defendants:
B Savvas
Instructed
by:
Hesselink
Konig Inc
[1]
Nedcor
Investment Bank Ltd v Visser NO and Others
2002
(4) SA 588
(T) at 595-6.
[2]
2012
(6) SA 128
(GSJ) at para [33].
[3]
1935
WLD 115
at 117.
[4]
Meyers
v Abramson
1951 (3) SA 438
(C) at 449-450;
Nedcor
Investment Bank Ltd v Visser NO and Others
supra
at 595.
[5]
2004
(2) SA 622
(SCA) a
t
para [5].
[6]
At
para [8].
[7]
Supra
at para [6].
[8]
South
British Insurance Co Ltd v Glisson
1963 (1) SA 289
(D) at 294;
Amod
v SA Mutual Fire & General Insurance Co Ltd
1971 (2) SA 611
(N) at 615.
[9]
Trans-Drakensburg
Bank Ltd v Combined Engineering (Pty) Ltd and Another
1967
(3) SA 632
at 642 (D);
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A) at 566.