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[2010] ZAWCHC 546
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Van Niekerk v Glonet Thirteen CC (A23/2010) [2010] ZAWCHC 546 (11 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: A23/2010
HENDRIK
VAN NYKERK
…...........................................................................
Appellant
v
GLONET
THIRTEEN CC
….......................................................................
Respondent
JUDGMENT
DELIVERED ON THIS 11
th
DAY
OF NOVEMBER 2010
FORTUIN,
J:
[1]
This appeal arises out of an action by Respondent (Plaintiff in the
court a
quo)
against
Appellant (Defendant in the court a
quo)
for
payment of an amount of R100 000 being the balance of the purchase
price allegedly owing in terms of a written sale of agreement
(the
agreement) for the sale of immovable property.
[2]
The agreement contains a non-variation clause which stipulates that
no modification, variation or alteration of the agreement
shall be
valid unless in writing and signed by both parties.
[3]
At the hearing of the trial in the Magistrate's Court on 13 March
2008, Respondent raised an objection regarding certain questions
posed in support of Appellant's defence of a subsequent oral
agreement reached between the parties.
[4]
The objection was upheld by the court a
quo,
whereafter
the matter was postponed to afford Appellant the opportunity to
amend his plea.
[5]
Appellant filed a notice in terms of Rule 55A of the Magistrate's
Court Act 82 of 1944, which notice was withdrawn after Respondent
filed an objection to the intended amendment.
[6]
A further notice in terms of Rule 55A was filed by Appellant to
which Respondent filed another objection. The objection was
upheld
and the application by Appellant to amend his plea was dismissed
with costs. This is an appeal against that order.
THE
AMENDMENTS APPLIED FOR IN THE COURT BELOW
[7]
The amendments applied for were to the following effect:
7.1.
That Appellant had discharged his obligation in terms of the written
Deed of Sale by substituted performance, which Respondent
had
accepted.
7.2.
That the action was excluded by reason of a
pactum
de non petendo
concluded
between the parties, i.e. an agreement not to sue or that the
creditor will not enforce his claim, which agreement exists
alongside the written Deed of Sale.
7.3.
That Respondent was estoppped from enforcing the alleged obligation
on which it had sued.
[8]
In dismissing the application to amend the plea, the magistrate
appears to have been persuaded that the defences which Appellant
sought to introduce were dependant on the proof of an oral agreement
which had the effect of varying the provisions of the deed
of sale.
The magistrate was quite correctly of the view that in principle it
would not be permissible for a party to rely on
such an agreement in
the circumstances, not only because of the provisions of the
non-variation clause, but also because of the
effect of the
formalities imposed in terms of the
Alienation of Land Act 68 of
1981
. The magistrate was misdirected, however, in equating an
allegation of substituted performance with an amendment or variation
of the agreement in terms of which stipulated performance was due.
He was probably confused in this regard by the unnecessary
allegation in the proposed amended pleading of an antecedent oral
agreement in terms of which the allegedly substituted performance
was defined.
[9]
It is well established that substituted performance may be tendered
and accepted without any violence to the terms of the
contract in
terms of which stipulated performance is due. See
Van
der Walt v Minnaar
1954
(3) SA 932
(O). The fact that the substituted performance is offered
and accepted pursuant to a side arrangement is not really relevant.
It is the fact of the performance that is material. If the seller
accepts substituted performance of the purchaser's obligations
under
deed of sale, then the stipulated obligation is thereupon
discharged. This happens without any amendment being necessary
to
the deed of sale.
[10]
The magistrate therefore erred in not recognising the defence of
substituted performance as a triable defence, not inconsistent
with
either the non-variation clause or the formalities in terms of the
Alienation of Land Act.
[11]
When the proposed amendments are read as a whole, it is apparent
that the alternative
pactum
de non petendo
defence
is in fact not an alternative defence, but merely a reformulation of
the substituted performance defence. As a separate
agreement it
would in fact amount not so much to a
pactum
de non petendo,
but
a pleaded oral variation of the deed of sale. That would not be
permissible and would give rise to an excipiable pleading.
As
mentioned it is the substituted performance of an obligation in the
deed of sale that is the only triable issue. As mentioned,
the fact
that it may have occurred pursuant to an unenforceable orally
determined arrangement is legally irrelevant. The magistrate
was
therefore correct in not allowing the so-called
pactum
de non petendo
defence
to be introduced by way of amendment.
[12]
On analysis the estoppel defence is also nothing more than a
disguised formulation of the substituted performance question,
which, on the facts which Appellant wanted to plead, is the only
triable issue that is raised. It is desirable that pleadings
should
clearly and succinctly define the issues to be tried. That object
would not be served by allowing the pleading to be
amended
to allow the inaccurate characterisation of a defence of substituted
performance under an apparently separate heading
of estoppel. I
would therefore not be inclined to interfere with the magistrate's
refusal to allow the so-called estoppel defence
to be pleaded.
THE
LAW WITH REGARD TO AMENDMENTS
[13]
The law with regard to amendments was discussed very clearly by
Thring, AJ (as he then was) in
Meyerson
v Health Beverages (Pty) Ltd
1
,
where
he cites with approval the test by Watermeyer J in
Moolman
v Estate Moolman & Another
1927
CPD 27
at 29:
"
... (T)he practical rule adopted seems to be that amendments will
always be allowed unless the application to amend is
mala
fide
or
unless such amendment would cause an injustice to the other side
which cannot be compensated by 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 pleading which it is sought
to amend
was filed."
[14]
A more recent discussion can be found in
Consol
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2)
2
where
it was stated that a proposed amendment to a pleading may be refused
on the basis that it does not raise a triable issue.
In this regard
see the test with regard to what a triable issue as discussed by
Blignault J in
Consol
Ltd t/a Consol Glass v
Twee
Jongen Gezellen (Pty) Ltd (2).
3
The
court has a discretion which should be exercised judicially in the
light of all the facts before it.
[15]
It has been established that the object of allowing an amendment is
"to obtain a proper ventilation of the dispute between
the
parties".
4
[16]
As stated earlier, Appellant raised the following defences to the
summons, i.e. substituted performance was tendered and
accepted, in
the alternative that there was an agreement not to enforce his claim
and also in the alternative, that Plaintiff
is estopped from
alleging that Defendant has not performed.
[17]
This court has to decide whether the above issues are indeed triable
issues. I am of the view that the defence of substituted
performance
is a triable issue and that allowing the amendment would not cause
an injustice to the Respondent that could not
be cured by either a
cost order or by a postponement.
[18]
Rule 55 A(4) of the Magistrates Courts Rules of Court affords the
courts a discretion to allow an amendment. Counsel for
Appellant
argued, correctly in my view, that, by refusing the amendment at
this stage, the door to litigation will be closed
to Appellant and
he will be precluded from raising a triable defence.
[19]
I am therefore of the view that the Magistrate erred and misdirected
himself in finding that all the amendments sought to
the Plea did
not raise triable issues and that the court a
quo
incorrectly
dismissed the appellant's application in terms of Rule 55A(4).
[20]
The appellant has achieved substantial success on appeal and is
entitled to the costs of the appeal. He sought an indulgence
from
the court below and he was entitled only to partial success in his
application to amend his plea. In the circumstances I
consider that
it would be appropriate if each party were to bear his/its own costs
in the application for leave to amend before
the magistrate.
[21]
In the circumstances, I would make the following order:
1.
The appeal is upheld with costs.
2.
The order of the magistrate dismissing the application with costs is
set aside and substituted by an order -
(i)
allowing
the amendment of the plea in the manner proposed in paragraphs 1 and
2 of the Defendant's notice in terms of Rule 55A,
dated 14 September
2008; and also by allowing the insertion of a paragraph 4.4. to the
plea as proposed.
(ii)
refusing
the application to amend the plea by the insertion therein of
paragraphs 4.5 and 4.6, as proposed in terms of the aforementioned
notice in terms of Rule 55A.
(iii)
Directing that each party shall bear his/its own costs 3. Respondent
is ordered to pay Appellant's costs of appeal.
FORTUIN, J
I
agree.
BINNS-WARD,
J
1
'
1989 (4) SA 667(C)
at 675C.
2
2005
(6) SA 23
(C).
3
Supra,
para 21.
4
JR
Janisch
(Pty)
Ltd
v
Wm
Spilhaus
& Co
(WP)
(Pty) Ltd
1992
(1) SA 167
(C).