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[2010] ZAGPPHC 75
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Pratt v Firstrand Bank Limited and Others (27048/03) [2010] ZAGPPHC 75 (27 July 2010)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 27048/03
DATE:
27/07/2010
in
the matter between:
ANNE
ELIZABETH MARY PRATT
Applicant
and
FIRSTRAND
BANK LIMITED
First
Respondent
M
CUBED HOLDINGS LIMITED
Second
Respondent.
WATERMANS
CHARTERED ACCOUNTANTS
Third
Respondent
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION
:
1.1
This
is an application in which the Plaintiff applies for an order
granting
her leave to amend her pleas to the First Defendant's claim in
reconvention and conditional claim in reconvention.
1.2
There was no appearance on behalf of the Second Defendant nor on
behalf of the Third Party.
1.3
For easy reference and to follow the reference to the parties as it
was made by counsel, the Plaintiff will be referred to as
the
"Applicant" or "Plaintiff" and the First
Defendant as "Firstrand" or "First Defendant".
[2]
HISTORY:
2.1
This matter has a long history which is basically not in dispute.
2.2
It has been dealt with extensively by Mr Louw SC on behalf of
Firstrand.
2.3
From Firstrand's heads of argument, the following should be mentioned
in this regard:
2.3.1
On 25 September 2003 the plaintiff instituted action against
inter
alia
the
first defendant for an order declaring that an agreement of loan
entered into between herself and the first defendant be declared
null
and void due to the fact that they were concluded in the absence of
any permission or exemption granted by treasury and accordingly
in
contravention of Regulations 3(1 )(e) and 10(1)(c) of the Exchange
Control Regulations promulgated in terms of Section 9 of
the Currency
and Exchange Act 9 of 1933.
2.3.2
On or about
16
November
2004 the first defendant pleaded to the plaintiff's particulars of
claim and, in addition thereto, raised a counterclaim
for the
repayment of the loan advanced by it
to
the plaintiff.
2.3.3
The plaintiff pleaded to the first defendant's counterclaim and
denied any liability to repay the loan advanced to her by
the first
defendant on the grounds that such loan was void as it contravened
Regulations 3(1 )(e) and 10(1)(c).
2.3.4
On 31 January 2007 the plaintiff and first defendant proceeded to
trial on certain separated issues before His Lordship Mr
Acting
Justice Mokgoatlheng (as he then was).
2.3.5
On 5 April 2007 His Lordship Mr Acting Justice Mokgoatlheng handed
down a judgment in favour of the first defendant on all
of the
separated issued and ordered that the plaintiff's summons be
dismissed and that the plaintiff pay the first defendant's
costs,
including the costs of two counsel.
2.3.6
The plaintiff appealed to the Supreme Court of Appeal and such appeal
was heard on 2 September 2008.
2.3.7
On 12 September 2008 the Supreme Court of Appeal dismissed the
plaintiff's appeal with costs, including the costs of two counsel.
2.3.8
The effect of the Supreme Court of Appeal's judgment is that the
order of the court
a
quo
by
His Lordship Mr Acting Justice Mokgoatlheng remained intact, namely
that the plaintiff's summons or particulars of claim were
dismissed.
2.3.9
In light thereof, the first defendant gave notice to proceed to trial
on its counterclaim. In this regard the first defendant
adopted, we
submit correctly so, the view that the only issue in relation to its
counterclaim was that of quantum as the very defence
raised by the
plaintiff had foursquareiy been addressed by the Supreme Court of
Appeal and had been dismissed.
2.3.10
On 11 November 2008 the plaintiff's attorneys indicated that it was
counsel's view that the plea to the counterclaim required
an
amendment and that counsel had been briefed in this regard. This was
reiterated, on oath, by the plaintiff's attorney on 9 December
2008
in an affidavit filed in answer to a consolidation application. A
year later, on 18 December 2009, the defendant's attorney
wrote a
letter to the plaintiff reminding her of these facts and recording
that no amendment had been forthcoming and in writing
the plaintiff
"to immediately attend to effecting any further amendments that
you wish to make as soon as possible in light
of the eminent trial
date". This letter appears in the notices bundle at 304A to 304
B.
2.3.11
On 7 April 2010 (a mere one and a half months before the trial was to
resume, but
nineteen
months
after
the Supreme Court of Appeal had dismissed the plaintiff's appeal) the
plaintiff gave notice of her intention to amend her
plea to the first
defendant's counterclaim.
2.3.12
On 21 April 2010 the first defendant objected to the plaintiff's
notice of intention to amend her plea to the first defendant's
counterclaim.
2.3.13
On 5 May 2010 the plaintiff made application for leave to amend her
plea to the first defendant's counterclaim.
2.3.14
The trial in which the first defendant had hoped to obtain an order
for the repayment by the plaintiff of the loan advanced
to her was
scheduled to commence on 21 May 2010.
[3]
THE
COURT'S APPROACH TO GRANTING OF AN AMENDMENT:
3.1
...the
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, unless in other words, unless
the parties
cannot be put back for the purposes of justice in the same position
as they were when the pleadings which is sought
to be amended were
filed."
See:
Erasmus (Superior Court Practice) at B1 - 179
See:
Erasmus on the same page "The power of the
Courts
to allow material amendments is, accordingly, limited only be
considerations of prejudice or injustice to the opponent"
Also
see: Devonia Shipping Ltd v MV Luis 1994(2) SA 363C at 369G
3.2
The fact that an amendment may cause the other party to lose his case
against the party seeking the amendment is not, of itself,
"prejudice"
of
the sort which will dissuade the court from granting it. "Prejudice"
in this context
"embraces
prejudice to the rights of a party in regard to the subject matter of
the litigation, provided there is a causal
connection which is not
too remote between the amendment of the pleadings and the prejudice
to the other party's rights.
See:
South British Insurance Co Ltd v Ellisson
1963 (1) SA 289
(D) at
296A-C GMF Kontrakteurs (Edms) Bpk v Pretoria City Council
1978 (2)
SA 219
(T) at 222H -223A
3.3
There
is no objection in principle to a new cause of action or defence
being added by way of amendment, even though it has the effect
of
changing the character of the action and necessitating the reopening
of the case for fresh evidence to be led, where that is
necessary to
determine the real issue between the parties.
See:
Myers v Abramson
1951
(3) SA 438
(C)
at
449
H-
450A;
Trans-Drakensberg
Bank Limited v Combined Engineering (Pty) Limited
1967(3)
SA 632
(D)
at
463
A-C
3.4
The
amendment must be
bona
fide
and,
if it is, it will be granted.
See:
Trans-Drakensberg Bank Limited v Combined Engineering (Pty)
Limited
1967(3)
SA 632
(D)
at
464
C;
Morgan
and Ramsay v Cornelius and Hollis
[1910]
31
NLR
262
at
264;
Greyling
v Nieuwoudt
1951(1)
SA 88 (O)
3.5
In
the absence of prejudice to the other party, leave to amend may be
granted "at any stage, however careless the mistake or
omission
may have been and however late may be the application for amendment."
See:
Krogman v Van Reenen
1926
(OPD)
191
at
193;
SA
Steel Equipment Co (Pty) Limited v Lurelk (Pty) Limited
1951(4)
SA 167
(T)
at
175
D;
Trans-Drakensberg
Bank Limited v Combined Engineering (Pty) Limited
1967(3)
SA 632
(D)
at
468
F
Mabaso
v Minister of Police
1980(4)
SA 319 (W)
at
323
D
3.6
The
question of
res
judicata
ought
ordinarily not to be raised by way of an objection, but by way of a
special plea, since evidence must be led as to the previous
action.
See:
Fell v Goodwill
[1902] LKCA 11
;
(1884)
5
NLR
265
;
Lamb
v The Colonial Secretary and the Rand Mining Estates Limited
1902
TS 319
;
Lowrey
v Steedman
1914
AD 532
at 539;
Blaikie-Johnstone
v P Hollingsworth (Pty) Limited
1974(3)
SA 392 (D) at 395 D
3.7
It may well be in a clear-cut case that an amendment will be
refused
on the basis of
res
judicata.
Where,
however, the question of
res
judicata
is
doubtful or arguable, it is submitted that the amendment should be
allowed and that it should be left to the defendant to raise
the
issue of
res
judicata
by
way of special plea.
See,
by analogy, the observations in regard to prescription in:
See:
Rand Staple Machine Leasing (Pty) Limited v ICI SA Limited
1977(3)
SA 199 (W) at 202 E-H.;
Cordier
v Cordier
1984(4)
SA 524 (C) at 535 G-H;
Erasmus
Superior Court Practice
p184
footnote 5
[4]
THE
FIRST DEFENDANT'S OBJECTION;
4
.1
The
first defendant's objection to the plaintiff's proposed amendment to
her plea is based principally on the grounds that the proposed
amendment is bad in law and/or excipiable in as much as it seeks to
introduce matters that have already been addressed by the Court
a quo
and by the Supreme Court of Appeal and in respect of which the court
is thus either
functus
officio
or
the issues now
res
judicata.
4
.2
It
was further argued by Mr Louw SC (on behalf of Firstrand) that since
the SCA found the
agreement
to be valid, it is not now open to the Plaintiff to raise voidness or
illegality.
[5]
THE
PLAINTIFF'S
ARGUMENT;
5.1
Mr Friedmann SC on behalf of the Plaintiff argued that:
The
matter is not
res
judiciata
in
that it was not decided by the SCA and further that there was no
prejudice and lastly that I should adopt the approach to the
amendments (to which I am bound) as set out above.
5.2
It was also argued that, at the trial of the matter, the
Applicant's
previous legal representatives had been of the view that no evidence
would be led and that the matter would be argued
simply on the
separated issues as formulated. One day before the trial commenced,
Firstrand's legal representatives advised the
Applicant's previous
legal representatives that they intended calling Mr Andreas Ribbens
("Ribbens"), Firstrand's official
in charge of Exchange
Control. The Applicant's previous legal representatives were of the
view that the evidence of a person other
than a representative of the
South African Reserve Bank was irrelevant and inadmissible. The South
African Reserve Bank, at a consultation
held that day, expressed the
attitude that the South African Reserve Bank did not wish to get
involved in the action and would
not make a representative available
to give evidence at the trial. The Applicant's previous Counsel had
objected at the outset
to the evidence of Mr Ribbens on this basis.
In the light of the fact that it was not possible to secure the
attendance of a representative
of the South African Reserve Bank to
give evidence at the trial, at the recommencement of the trial, on
the next day, the Applicant's
Counsel advised the Court that he did
not intend to lead any evidence and did not intend to cross-examine
Mr Ribbens. In the absence
of any witness to gainsay the evidence of
Mr Ribbens, he was effectively not in a position to conduct a
meaningful cross-examination.
[6]
CONCLUSION;
6.1
After careful consideration and especially the approach which I
should adopt as stated above, I am of opinion that the amendment
should be allowed. I am also of opinion that it is not appropriate at
this time to try and decide the merits of the case at all.
6.2
Consequently I make the following order:
6.2.1
The Plaintiff is granted leave to amend her plea to the First
Defendant's claim in reconvention and conditional ciaim in
reconvention as per the notice of amendment;
6.2.2
Costs will be costs in the cause.
GOODEY
AJ