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[2010] ZAWCHC 638
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Trenchless Road Crossings CC v Municipal Manager, Saldanha Bay Municipality and Others [2010] ZAWCHC 638; ; 10991/2010 (14 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
•
10991/2010
DATE
:
14
JULY 2010
In
the matter between:
TRENCHLESS
ROAD CROSSINGS CC
….............................................
Applicant
And
THE
MUNICIPAL MANAGER
SALDANHA
BAY MUNICIPALITY
….........................................
First
Respondent
SALDANHA
BAY MUNICIPALITY
….....................................
Second
Respondent
ASLA
MAGWEBU CIVILS (PTY) LTD
…...................................
Third
Respondent
VARIOUS
BENEFICIARIES OF THE AFFORDABLE HOUSING
UNITS
IN THE ONGEGUND, PHASE 1
…...............................
Fourth
Respondent
JUDGMENT
KLOPPER,AJ
The
Applicant, in essence, seeks an amendment of the pleadings in its
present form to read as follows, 'that an interim interdict
be
granted pending the amplification of the relief sought in the review
under case number 2493 and final determination of the review
application before this Honourable Court under case 2493/10 enrolled
for hearing on 31 August 2010 in the following terms', and
then of
course the normal terms as indicated in the pleadings apply. So the
amendment that is sought is that the interim interdict
be granted and
that the following words be inserted ' pending the amplification of
the relief sought in review under case number
2493'.
Mr
Moller
for
the applicant made this application during the course of proceedings
and did not, for reasons still not totally clear to me,
decide that
it was necessary to invoke the provisions of Rule 28, which provide
the procedure for amendments to pleadings and
documents. This issue
was raised, and it is one of the points which were raised in
objection to the granting of this amendment.
Rule 28 stipulates that
there is a process which has to be followed when an amendment is
required. Of course this process can
be dispensed of where the
amendment takes place with the consent of parties, but where it is
obvious that objections are to be
raised, then in my view the rule
must be followed.
It
requires a notice in which it states terms in respect of objections
which can be raised It allows for a process whereby these
objections
can be clearly and concisely stated in writing and then it follows
that if the court grants leave for the amendment,
then the amendment
will be effected once notice of such amendment is given to the
parties. Now this process was not followed
for some or other reason,
t did raise this issue, but it seems Mr
Moller
is
of the opinion or reiterated the fact that he can apply for an
amendment at any time, although this does not indicate that
he can
apply in any way for an amendment, or by way of any process and can
merely, in these circumstances, just ask that his
pleadings be
amended.
Strangely
enough there are other documents which deal with amendments in the
papers, which are dealt with in a more formal manner,
but be that as
it may, objections were raised, objections as to the manner in which
the application was made and in particular
objections concerning the
vagueness of the insertion of these words and the particular
amendment, and the reasons behind it.
I must add that I still have
difficulty in understanding the real relevance of the request for
this amendment. I did canvass
this issue during the argument and
attempted to obtain clarity. There were various suggestions put
forward by counsel for the
Respondents as to why this amendment is
being sought
Mr
Moller
also
indicated that there were probably various reasons why it should be
inserted, but in essence it would appear that it makes
the interim
interdict dependent upon not only the final determination of the
review application in case 2493/10, but also dependent
upon the
Applicant amplifying in some or other way, the relief that it seeks
in that particular case. And I think the main objection
to the
amendment lay in the fact that it incorporates a fact which cannot
be determined with any amount of clarity at this stage,
which is
vague and which is uncertain, because, as the arguments went, there
has been no amendment of the relief sought in the
case under review
up to this stage.
There
has been frequent mention throughout the papers of the impending
amplification of the application due to the circumstances
and this
continues right through from the founding affidavit to the replying
affidavit and it even is still an uncertain event,
and has not been
established with any real amount of clarity in a subsequent
affidavit made by the Applicant. So the main objection
in the
arguments of counsel for the Respondents is that it is uncertain, it
is vague and in particular the Third Respondent is
not in a
position, in the light of these circumstances, to answer to anything
that may arise from that particular set of circumstances.
I
have considered the arguments of counsel for the Applicant, as well
as for the Respondents. I have attempted to apply the principles
in
respect of the granting of an amendment of this nature, which are
well known and which have been set out in various cases.
Just by way
of summary I can refer to what is indicated in
Devonia
Shipping Limited v MV "Luis" (Jomen Shipping Company
Limited intervening)
1994
(2) SA 363
(CPD), a judgment of
Rose-lnnes
.
J. (as he then was) on page 369. It reads as follows:
"The
general rule is that an amendment of a notice of motion, as in the
case of a summons or pleading in an action, will
always be allowed
unless the application to amend is mala fide, or unless the
amendment could cause an injustice or prejudice
to the other side,
which cannot be compensated by an order for costs, or in other words
unless the parties cannot be put back
for the purposes of justice in
the same position as they were when the notice of motion, which it
sought to amend, was filed-"
The
same principles are found in the case of
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC), where
Mgobo
,
J at 261, indicates as follows:
"The
principles governing the granting or refusal of an amendment have
been set out in a number of cases. There is a useful
collection of
these cases and the governing principles in
Commercial
Union Assurance Company Limited v Wavmark NO.
1995
(2) SA 73
(TK) at 76d-76i. The practical rule that emerges from
these cases is that amendments will always be allowed unless the
amendment
is mala fide, made in bad faith or unless the amendment
will cause an injustice to the other side which cannot be cured by
an
appropriate order for costs or unless the parties cannot be put
back for the purposes of justice in the same position as they were
when the pleading, which it sought to amend, was filed. These
principles apply equally to a notice of motion."
And
in the case referred to. that is to say the matter of
Commercial
Union Assurance Company Limited v Wavmark N.
0.
at
73, these principles are indicated in the head note and
I
will
just quote from there:
"The
principles enunciated in the reported cases governing applications
for the amendment of pleadings are as follows:
1.
The court has a discretion whether to grant or refuse an amendment.
2
An
amendment cannot be granted for the mere asking. Some explanation
must be offered therefore.
3.
The applicant must show that prima facie the amendment has something
deserving of consideration, a triable issue.
4.
The modern tendency lies in favour of amendment if such facilitates
the proper ventilation of the dispute between the parties.
5.
The parties seeking the amendment must not be mala fide.
6.
The amendment must not cause an injustice to the other side which
cannot be compensated by costs
7.
The amendment should not be refused simply to punish the applicant
for neglect.
8.
A mere loss of (the opportunity of gaining), time is no reason in
itself for refusing the application.
9.
If the amendment is not sought timeously. some reason must be given
for the delay."
Those
are the basic principles governing an application for an amendment.
I
have indicated that I still have some difficulty in understanding
why the interim interdict, (which clearly is an interdict
which is
requested, pending the final determination of the review
application, which is already pending before this Court), should
now
be based on the fact that the relief at some or other stage and in
some or other form, is to be amplified I am not going,
at this
stage, to indicate all the aspects mentioned in argument by counsel
as to why the Applicant deems it necessary to request
this
amendment, which includes the fact that:
It
wishes to avoid the application for striking out,
It
wishes to avoid the application for not joining the Third
Respondent, and,
It
wishes to incorporate in some or other form a sanction for a
document for which there is an application to strike out and
which
otherwise would not be included for consideration, because of the
application for striking out.
A
lot of these reasons were given by counsel.
Certainly
Mr
Moller
for
the applicant has referred to this document in particular when the
uncertainty and vagueness of this amendment was brought
to the fore
and it is in fact the document which is the subject of an
application for striking out and which is included for
the first
time in the replying affidavit of the Applicant.
Bearing
all these circumstances in mind, I am of the view that the amendment
sought is. in the first instance, not an essential
one It does not,
in my view, create a situation where issues are further ventilated
in any way. The dispute between the parties
being whether an interim
interdict should be granted, pending the outcome of a review
application. I do believe that in its present
form (and with the
uncertainties around what the amplification in fact entails, the
fact that there is constant referral to further
amplification, and
amplification of even the draft proposals or the proposed
amendments.) that it does, because of its vagueness
and uncertainty,
create a situation which does prejudice, in particular the Third
Respondent, and in these circumstances this
cannot be remedied by an
order for costs and can also not be remedied by the postponement of
the matter to allow counsel for
the Respondents to consider their
situation and perhaps to amend their papers, because the uncertainty
still reigns. It has not
been changed in any way up to this stage
and any prejudice cannot be remedied in this manner
I
am, therefore, of the view that the application for the amendment of
pleadings as requested should be refused and that in the
circumstances the Applicant should pay the costs of the application,
including in the circumstances the cost of two counsel in
respect of
the First and Second Respondents.
KLOPPER,
AJ