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[2010] ZAGPPHC 607
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Strydom v Engen Petroleum Limited (10222/2007) [2010] ZAGPPHC 607 (21 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
10222/2007
DATE: 21 MAY 2010
in the matter
between:
OCKIE
STRYDOM
.............................................................................................................................
Applicant
and
ENGEN
PETROLEUM
LIMITED
.................................................................................................
Respondent
JUDGMENT
MAKGOKA.
J
:
[1] In this
application the applicant, who is the defendant in the main action,
seeks an amendment to his plea. The relief sought
is opposed by the
respondent, the plaintiff in the main action, on the basis that the
intended amendment contemplates a withdrawal
of an admission without
a proper explanation. For convenience, I shall refer to the parties
as the plaintiff and defendant, respectively.
There are also
procedural aspects relating to the late filing of this application. I
am satisfied with the explanation for the
late filing, and
accordingly grant condonation.
[2] The common cause
factual matrix is briefly the following:
(a) the plaintiff
instituted action against the defendant on 16 March 2007.
(b) the defendant
filed his notice of intention to defend on 19 March 2007, and his
plea on 22 May 2007.
(c) on 27 February
2009 new attorneys came on record for the defendant.
(d) on 26 May 2009
the defendant served the impugned notice of intention to amend, which
the plaintiff objected to on 8 June 2009.
[3] To consider the
matter in a proper context, it is prudent to have regard to the
pleadings as they now stand, against the intended
amendment. The
plaintiff claims an amount of R3 065 251.00 from the defendant as the
cessionary of Soutpansberg Petroleum (Pty)
Ltd (“Soutpansberg
Petroleum”)
[4] The thrust of
the plaintiff's claim is contained in paragraphs 8, 9 and 10 of the
particulars of claim, which read as follows:
“
8.
The defendant is indebted to Soutpansberg:
8.1 as at 28
February 2003 in the amount of R266 667.00:
8.2 as at 29
February 2004 in the amount of R1 074 870.00;
8.3 as at 28
February 2005 in the amount of R1 980 391.00;
8.4 as at 28
February 2006 in the amount of R3 065 251. 00;
9. Consequently
the Defendant is indebted to the Plaintiff in the amount of R3 065
251.00.
10. The Defendant
has failed and/or neglected and/or refused to pay the Plaintiff the
amount of R3 065 251.00 or any amount whatsoever”.
[5] The said
paragraphs are dealt with as follows in the defendant’s plea
(in its present form).
6.1 The Defendant
admits that it refuses to pay to the Plaintiff the amount of R 3 065
251.00 or any amount whatsoever.
6.2 The defendant
avers that:
6.2.1 that dates
and amounts referred to are reflected in Soutpansberg’s
respective yearly financial statements as a loan
receivable by it
from the Defendant;
6.2.2 no terms of
repayments have been determined by Soutpansberg and the amount of R3
065 251.00 is accordingly not payable:
6.2.3 The
Defendant therefore denies any consequent indebtness to Plaintiff as
well as the remainder of the allegations contained
in these
paragraphs. ”
[6] In his notice of
intention to amend, the defendant seeks to amend paragraph 6 of his
plea in the following respects:
6.1 The Defendant
admits that it refuses to pay to the Plaintiff the amount of R3 065
251.00 or any amount whatsoever but pleads
that it is not indebted to
the Plaintiff at all;
6.2 Save as
aforesaid the Defendant denies each and every allegation herein and
puts the Plaintiff to the proof thereof;
6.3 The Defendant
specifically denies the correctness of the financial statements of
Soutpansberg, more specifically the reflection
of the Defendant’s
alleged loan account, as reflected in the financial statements and
set out in paragraph 8.1 to 8.4 of
the Plaintiff's particulars of
claim;
6.4 in the event
that the Plaintiff succeeds in proving the correctness of the
Defendant's loan account in the financial statements
of Soutpansberg,
as set out in paragraphs 8.1 to 8.4 of the Plaintiff's particulars of
claim, the Defendant pleads as follows:
6.4.1 The dates
and amounts referred to are reflected in Soutpansberg respective
yearly financial statements as a loan receivable
by it from the
Defendant;
6.4.2 No terms of
repayments have been determined by Soutpansberg and the amount of R3
065 251.00 is accordingly not payable;
6.4.3 The
Defendant therefore pleads that the Plaintiff’s action was
instituted prematurely. ”
[7] As stated
earlier, the plaintiff contends that paragraph 6.2 of the defendant’s
plea (in its present form) amounts to
an admission of the defendant’s
indebtedness to Soutpansberg Petroleum. I think this is in reference
to paragraph 6.2.1.
To the extent that the defendant is argued to
have admitted the loans receivable by him as reflected in the
financial statements
of Soutpansberg Petroleum, l agree with the
plaintiffs contention. Where I part ways, is the assertion that, that
admission, qualifies
as an admission of indebtedness to Soutpansberg
Petroleum. The admission of the loan is qualified in sub-paragraph
6.2.2, which
states the basis of denial of the defendant's
indebtedness, namely, that the amount, despite the loan having been
advanced, was
not due and payable.
[8] Paragraph 6.3 of
the contemplated plea seeks a withdrawal of the admission relating to
the correctness of the loan amount as
reflected in financial
statements of Soutpansberg Petroleum. There is no proper or adequate
explanation how the admission was made,
except a bald assertion that
the plea was drafted contrary to the defendant’s instructions.
To that extent, that portion
of the contemplated plea should not be
allowed. It should be so, in light of the fact that reference to the
financial statements
of Soutpansberg Petroleum, was introduced by the
defendant himself. He was a director of Soutpansberg Petroleum, so
the correctness
of the amounts would have been within his knowledge
and therefore, the admission was well informed. It follows then that
paragraph
6.4 thereof falls away, as it is dependent on, and
ancillary to, paragraph 6.3.
[9] The question of
the defendant’s indebtedness, on the other hand, stands on a
totally different footing. In the plea (as
it stands) the defendant
has expressly denied this, in paragraph 6.2.3. What paragraphs 6.1
and 6.2 of the intended plea seeks
to do, is to reinforce the point.
They do not, as contended, amount to a withdrawal of anything, but
rather an emphasis of a point
already made in the plea. There could
consequently be no prejudice attendant on the plaintiff as a result
of the contemplated amendment.
[10] In summary, the
defendant should be granted leave to amend his plea in accordance
with his notice of intention to amend, save
for paragraphs 6.3 and
6.4 thereof.
[11] Lastly, the
issue of costs. In matters of this nature, the key question is always
whether the opposition was unreasonable.
In my view the plaintiffs
opposition was not unreasonable, as reflected in the brief analysis
of the facts. At the end, each party
has been partially successful in
their respective arguments. The fairest and just order with regard to
costs, in my view, is that
each party pays its own costs.
[12] I therefore
make the following order:
1. The defendant is
granted leave to amend his plea in accordance with paragraphs 6.1 and
6.2 of his notice of intention to amend
dated 21 May 2009;
2. Leave to amend in
accordance with paragraphs 6.3 and 6.4 of the said notice, is
refused;
3. Each party shall
pay its own costs.
T M MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD: 12
MAY 2010
JUDGMENT
DELIVERED: 21 MAY 2010
FOR THE
APPLICANT: ADV. APJ ELS
(DEFENDANT)
INSTRUCTED
BY:
SCHABORT INC, PRETORIA
FOR THE
RESPONDENT: ADV P L CARSTENSEN
(PLAINTIFF)
INSTRUCTED
BY:
SNYMAN DE JAGER
,
PRETORIA