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[2021] ZAGPJHC 506
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De Freitas and Another vs Chamdor Meat Packers (Pty) Ltd and Others (13551/2018) [2021] ZAGPJHC 506 (26 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 13551/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
DE
FREITAS: JOSE JORGE
First
Applicant
MENEZES:
FRANKLIN DOMICIANO DE AGUAR
Second
Applicant
and
CHAMDOR
MEAT PACKERS (PTY) LTD
First
Respondent
BEEFCOR
(PTY) LTD
Second
Respondent
PETRUS
HENDRIK TROSKIE N.O
.
Third Respondent
PETRUS
HENDRIK TROSKIE N.O.
Fourth
Respondent
JOHANNES
LODIWIKUS LE ROUX N.O.
Fifth
Respondent
CORNELIUS
JOHANNES HATEM N.O.
Sixth
Respondent
HENDRIK
LAMBERTUS JOHANNES MOULDER
Seventh
Respondent
N.O.
ERENSCHA
ALETTA ERASMUS N.O.
Eighth
Respondent
MALCOLM
JOSEPH FARQUHARSON
Ninth
Respondent
PETRUS
HENDRIK TROSKIE
Tenth
Respondent
CASPARUS
JAN HENDRIK WESSELS
Eleventh
Respondent
JOHAN
ROBINS WATSON
Twelfth
Respondent
HERMANUS
ABRAHAM VAN STADEN
Thirteenth
Respondent
WESSEL
JOHANNES MULLER
Fourteenth
Respondent
TROSKIE
& DE WET
CC
Fifteenth
Respondent
RING
DRYER INVESTMENTS (PTY) LTD
Sixteenth
Respondent
GAUTENG
MEAT INSPECTION SERVICES CC
Seventeenth
Respondent
JUDGMENT
ROME,
AJ:
INTRODUCTION
1
This
application for leave to amend particulars of claim is opposed on one
basis
only.
2
In this
judgment I refer to the plaintiffs (being the applicants in this
present
interlocutory application) as “the applicants” and the
defendants (in the action) as “the respondents”
3
A
perusal of the nature of the particulars of claim as summarised in
the founding
affidavit
indicates that: the applicants as minority shareholders in the first
defendant, seek various oppression type remedies
against it and
various of its other stakeholders and directors (hence the number of
defendants who are joined) whom the applicants
describe as “joint
wrongdoers”. The action was instituted in 2018.
4
The
applicants served their notice of intention to amend during August
2020. The
applicants
in their notice sought to amend their particulars of claim in several
respects. Only one aspect of the notice of amendment
elicited an
objection.
5
The
objection is that in terms of the amendment the applicants seek to
introduce
two
new causes of action, which only arose post the institution of
summons. In other words the respondents contend that two of the
paragraphs of the amendment introduce two new claims that are based
on alleged oppressive conduct that first commenced in March
2020,
which post-dates the summons; as such, according to the respondents,
these new claims cannot legitimately be included within
the ambit of
the action initiated by the service of the summons.
6
The
grounds of the objection are hence narrow.
7
The
respondents’ objection is based on the statement of Voet that
there can be
no
lawsusit before something is due. Hence the contention is that before
issuing summons a plaintiff must therefore have a complete
cause of
action. This precept however as was explained in
Bankorp
Ltd v Andrerson Morshead
1997
(1)
SA 251
is
subject to at least two further qualifying considerations.
8
The
first is that it has long been the law that a new claim is
permissible it a valid
cause
of action already appears from the summons. The second is that even
where the summons does not disclose a valid and complete
claim, the
Court may allow an amendment if the plaintiff did not issue the
summons merely to have litigation pending before s/he
had a claim.
9
In this
matter both of the above requirements are fatal to the respondents’
objection. It
is common cause that the particulars of claim disclosed a cause of
action at the time they were issued. In any event
the events alleged
in the relevant aspects of the amendment pertain to the very
oppression action that has
already
been instituted but are now perforce the subject of an amendment
because they pertain to new facts that occurred post the
institution
of summons.
10
If the respondents’ arguments were to be accepted it would
preclude the introduction
of amendments that clearly fall within the
ambit of the lis between the parties but which pertain to events that
occur after the
issuing of summons. This would serve no purpose other
than to delay and complicate proceedings.
ORDER
11
The following order is made:
a.
The amendments as envisaged in the applicants’ notice of
amendment dated 4 August 2020 are granted.
b.
The respondents are ordered to pay the opposed costs occasioned by
the respondents’ notice of objection dated 19 August
2020.
26
January 2021
G
ROME
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
For
the applicants:
Adv. H.H Cowley
Instructed
by:
Martin Hennig Attorneys
For
the respondents:
Adv. G. Fouché
Instructed
by:
Manley Incorporated
Date
of hearing:
25 January 2020