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[2010] ZAGPPHC 97
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JSW Electrical (Pty) Ltd v Minister of Water Affairs (22555/2000) [2010] ZAGPPHC 97 (5 August 2010)
IN THE HIGHT COURT
OF SOUTH AFRICA
( NORTH GAUTENG HIGH
COURT)
CASE NO:
22555/2000
DATE:
05/08/2010
In the matter
between:
JSW ELECTRICAL (PTY)
LTD Plaintiff/Respondent
and
MINISTER OF WATER
AFFAIRS Defendant/Excipient
JUDGMENT
MNGQIBISA-THUSI J
[1 ] The
defendant is seeking an order in the following terms:
1.1 striking out the
plaintiffs notice of amendment of its particulars of claim dated 31
August 2009.
1.2 striking out the
plaintiff's amended pages delivered pursuant to the notice of
amendment referred to in paragraph 1.1 above
which pages were filed
on 21 September 2009.
[2] In order to put
the two applications in their proper perspective, it is necessary to
set out the context in which the two prayers/applications
came about.
[3] On 4 September
2000 the plaintiff issued summons on the defendant claiming payment
of an amount of R 637 361.40, together with
interest and costs. The
claim represents the outstanding amount arising from a contract
concluded between the parties in terms
of which the plaintiff
pursuant thereto had allegedly supplied goods to and done work for
the defendant, for which the defendant
has not paid in full.
[4] On 1 February
2007 the plaintiff served the defendant with a notice of bar in terms
of Rule 26.
[5] On 6 February
2007 the defendant filed a notice taking an exception to the
plaintiff's particulars of claim on the ground that
the particulars
of claim lack the averments necessary to sustain a cause of action,
alternatively, that they do not disclose any
cause of action. The
defendant's complaint relates to paragraph 3 of plaintiff's
particulars of claim, in which the plaintiff alleges
that:
"3.1 At or
about March 1995, and at Pretoria, the Plaintiff duly represented by
Walter Johann Siegl" ("hereinafter
referred to as "Siegl)
entered into a written, alternatively oral, agreement (hereinafter
referred to as "the Agreement")
with the Defendant's
government department, the Department of Water Affairs and Forestry
(hereinafter referred to as "the
Department") duly
represented by Fred Hose ("hereinafter referred to as "Hose")
who warranted that he was authorised
to conclude such an agreement."
[6] The
defendant's exception reads as follows:
"1. In
paragraph 3.1 of the proposed amended particulars of claim the
plaintiff avers that the defendant was duly represented
by one Fred
Hose who warranted that he was authorised to conclude such an
agreement;
2. ...;
3. The plaintiff in
its amended particulars of claim has failed to set out with any
particularity any basis upon which the alleged
representation by the
one Fred Hose could bind the defendant in the said contract, in that,
nowhere is it alleged that the said
Fred Hose is an employee of the
defendant and that he acted within the scope of his employment in so
signing such a contract."
[7] On 15 April 2008
the plaintiff filed an application for a trial date. The defendant
then filed a Rule 30 notice in terms of
which it sought the striking
out of the plaintiff's application for a trial date on the ground
that such an application constituted
an irregular step in that:
7.1 the pleadings in
the matter had not yet closed; and
7.2 there is an
exception pending in the matter and the matter was therefore not ripe
for trial.
[8] On 4 June 2008
the plaintiff filed a Notice of intention to amend its particulars of
claim. The defendant responded by filing
on 18 June 2008 a Notice of
intention to oppose the proposed amendment on the basis that such
amendments, if allowed render the
plaintiff's particulars of claim
excipiable on the grounds of being vague and embarrassing,
alternatively that it lacks averments
necessary to sustain a cause of
action. The plaintiff then filed the amended pages to its particulars
of claim on 24 June 2008.
[9] On 28 July 2008
the defendant issued a Notice excepting to the plaintiff's filed
amended pages.
[10] On 3 September
2008 the defendant filed an exception to the plaintiff's amended
particulars of claim.
[11] In its
exception the defendant alleges that in its amended particulars of
claim the plaintiff has failed to set out with any
particularity any
basis upon which the alleged representation by Fred Hose could bind
the defendant in that nowhere is it alleged
that Fred Hose is an
employee of the defendant and that he acted within the course and
scope of his employment in signing the contract.
Secondly the
defendant is taking an exception to the plaintiff's amended
particulars of claim on the ground that they are contradictory
and
therefore vague and embarrassing in that in paragraph 6 of the
particulars of claim the plaintiff indicates the amount owing
as
being R 637 361-40 whereas in paragraph 7 the amount indicated as
owing is R 829 737.66.
[12] A hearing date
for the exception was set down for 1 September 2009. However, on 30
August 2009, a day before the hearing of
the exception, the plaintiff
filed a Notice of intention to amend its particulars of claim in
order to address the defendant's
complaints in its exception. On 1
September 2009 the hearing of the exception was postponed sine die
and the plaintiff tendered
the costs occasioned by the postponement.
[13] On 10 September
2009, the defendant filed a Rule 30 Notice in terms of which it
sought the striking out of the plaintiff's
Notice of intention to
amend on the ground that the Notice was out of time and that the
plaintiff had not applied for condonation.
[14] On 10September
2009 the plaintiff filed the amended pages to its particulars of
claim.
[15] On 7 October
2009 the defendant filed a Notice of intention to apply for the
striking out of the plaintiff's Notice of amendment.
On 11 October
2009 the defendant filed a Notice of application to strike out the
plaintiffs amended pages.
[16] As correctly
pointed out by the defendant's counsel, the following issues need to
be decided:
15.1 whether the
plaintiff is entitled, after being served with a notice of intention
to except and the exception application has
been set down for
hearing, to file a notice of intention to amend its particulars of
claim a year later after service of the Rule
23 application without
applying for condonation and tendering costs;
15.2 whether the
plaintiff is entitled In view of the Rule 30 Notice served on it to
file the amended pages to its particulars
of claim.
[17] It was
correctly submitted on behalf of the defendant that the plaintiff has
been in total disregard of the Rules of this court.
That, in spite of
the fact that the defendant's exception to the plaintiff's
particulars of claim had been set down for the 1 September
2009, the
plaintiff had only filed its Notice to amend on the 30 August 2009
without applying for condonation and without tendering
the costs of
the exception. It was further contended on behalf of the defendant
that the plaintiff's conduct had resulted in the
defendant being
prejudiced in that it had not been in a position to file its plea,
pending the finalisation of the hearing of the
exception. Further
that as a result of the plaintiff's disregard of the defendant's Rule
30 notices, its Notice to amend dated
31 August 2009 and the amended
pages filed on 10 September 2009 should be struck out in terms of
Rule 30, alternatively, Rule 30A.
[18] It was
submitted on behalf of the plaintiff that, even though the plaintiff
had not responded to the defendant's Rule 30 notices,
the plaintiff
was entitled to file both its Notice of intention to amend and the
amended pages in order to deal with the defendant's
complaints as set
out in its Rule 23 notice. That in terms of Rule 28, there was no
time frame within which a party could apply
to amend its particulars
of claim. That whatever prejudice the defendant might have suffered
can be cured by an order as to costs.
Further, it was contended on
behalf of the plaintiff that even if the defendant's exception was
upheld, it was practice for the
courts to grant the plaintiff
permission to apply for the amendment of its particulars of claim.
Constantaras v BCE Foodservice
Equipment (Pty) Ltd
2007 (6) SA 338
(SCA).
[19] In order to
succeed in its application the defendant has to show that it has
suffered prejudice as a result of the plaintiff's
conduct. A court is
entitled, in a proper case, to overlook any irregularity which does
not work any substantial prejudice to the
other party. Levitan v
Newhaven Holiday Enterprises
1991 (2) SA 297
(C) at 298A.
[20] In the present
case the defendant in argument has not shown what substantial
prejudice it has suffered besides the fact that
it has not been in a
position to file its plea. Further, any prejudice it may have
suffered can be cured by a cost order against
the plaintiff.
[21] At the time of
the hearing of this case the plaintiff had dealt with the defendant's
complaints in the exception the defendant
had taken. I am in
agreement with the argument advanced on behalf of the plaintiff that
it was not necessary for it to aver that
Hose was acting within the
cause and scope of his employment when he concluded the contract with
the defendant in that the notion
of vicarious liability is only
applicable in the case of delicts committed by employees in the cause
and scope of their employment.
Since the plaintiff's cause of action
is based on contract, the defendant's complaint is misplaced.
[22] Regarding the
proposed amendments by the plaintiff, in Mabaso v Minister of Police
1980 (4) SA 319
(W) at 323D the court stated said the following:
"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."
[23] Further, in
Moolman v Estate Moolman
1927 CPD 27
at 29 the court held that:
"... 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, 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 it
is sought to amend was filed."
[24] I am therefore
of the view that this is not a proper case in which this court can
order the plaintiff's notice of intention
to amend and its amended
pages to be struck off. Accordingly the defendant's application is
dismissed.
[25] On the issue of
costs, I am of the view that the plaintiff was, as correctly pointed
out by the defendant, in flagrant disregard
of the rules of court and
this kind of conduct cannot be countenanced. The plaintiff should
therefore be responsible for the costs
of the exception which was set
down for 1 September 2009 and for the costs of the application in
terms of Rule 30.
[26] Accordingly
the following order is made:
18.1 The defendant's
application is dismissed;
18.2 The plaintiff
is granted leave to amend its particulars of claim;
18.3 The plaintiff
is responsible for all the costs of the exception set down for 1
September 2009 and for the costs of this application.
MNGQIBISA-THUSI
Judge of the North
Gauteng High Court