Jukuda v African Pioneer Investment Holdings Ltd and Another (1770/08) [2009] ZAECPEHC 41 (27 August 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2009
>>
[2009] ZAECPEHC 41
|

|

Jukuda v African Pioneer Investment Holdings Ltd and Another (1770/08) [2009] ZAECPEHC 41 (27 August 2009)

FORM A
FILING SHEET FOR EASTERN CAPE,
PORT ELIZABETH
PARTIES
:
MFUNDO JUKUDA V AFRICAN PIONEER INVESTMENT HOLDINGS LIMITED + 1
NOT
REPORTABLE
Case
Number:
1770/08
High
Court:
PORT
ELIZABETH
DATE
HEARD:
18
AUGUST 2009
DATE
DELIVERED:
27
AUGUST 2009
JUDGE(S):
EKSTEEN
AJ
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
ADV
MARELE
for
the Defendant(s):
ADV
SCOTT
Instructing
attorneys:
Plaintiff(s):
NGQAJAYI
INC
Defendant(s):
BOQWANA
LOON & CONNELLAN
CASE
INFORMATION -
Nature
of proceedings
:
Key
Words
:
Summary:
IN
THE HIGH COURT OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN
CAPE, PORT ELIZABETH
Case No.: 1770/08
Date delivered: 27 August 2009
In
the matter between:
MFUNDO
JUKUDA
Plaintiff
and
AFRICAN
PIONEER INVESTMENT HOLDINGS
LTD
First
Defendant
STEPHEN
MZUKISI DONDOLO
Second Defendant
JUDGMENT
EKSTEEN
AJ:
The applicant in
the action (to whom I shall refer to as “the plaintiff”) issued
summons against the respondents (to whom
I shall refer as “the
defendants”) on 28 August 2008. The defendants thereafter served
various notices on the plaintiff,
including a notice in terms of
rule 30 of the uniform rules of court to set aside the particulars
of claim filed and two notices
of exception.
On 5 March 2009 these proceedings
came before Jones J. Jones J, after hearing counsel made an order
including the following terms:
“1. That
the application in terms of Rule 30 to set aside the Particulars
of Claim is granted, and both exceptions to the
Particulars of
Claim are allowed, with costs.
2. That
the Particulars of Claim are set aside.
3. That the plaintiff is given leave,
if so advised, to file amended Particulars of Claim within ten (10)
court days of the date
of this order.
4. ….”
Pursuant to this order the plaintiff
proceeded within the stipulated time to file fresh particulars of
claim under a notice headed
“Notice of Filing: Amended
Particulars”.
This was followed
by the filing of a “Notice of Objection and of Irregular Step”
filed on behalf of the defendants. The latter
notice contained two
grounds upon which the defendants rely for their contention that the
filing of the amended particulars of
claim constitutes an irregular
step and, in the same notice, sets out an objection to the content
of the amendment. It called
upon the plaintiff to remove the cause
of the complaint within a specified time. The cause of complainant
was not removed within
the time period set out in the “Notice of
Irregular Step” and the defendants accordingly set down the
application in terms
of Rule 30 to again set aside the new
particulars of claim filed by the plaintiff. The grounds upon which
the defendants rely
for their contention that the filing of the
particulars constitutes an irregular step are as follows:
“1. In terms of the provisions of
Rule 28 of this Honourable Court any party desiring to amend a
pleading or document other
than a sworn statement, filed in
connection with any proceedings, shall notify all other parties
of his intention to amend
and shall furnish further particulars of
the amendment.
2. The abovementioned document,
served and filed by the plaintiff:
2.1 Does not notify the other party
to this litigation of the plaintiff’s intention to amend;
2.2 purports to affect the
replacement of the plaintiff’s Particulars of Claim, struck
out, with those annexed to the
notice in question.”
The plaintiffs contend that the order
granted by Jones J essentially goes no further than granting the
plaintiff leave, within
a period of ten (10) days, to seek an
amendment in accordance with the provisions of Rule 28. It
accordingly contends that by
virtue of the provisions of Rule 28 of
the Uniform Rules of Court the plaintiff, desiring to amend his
pleadings, was required
to notify all other parties of his intention
to amend and to furnish them with particulars of the amendment.
In support of this
argument, Mr
Scott
,
who appeared on behalf of the plaintiffs, has referred me to the
matter of
Trustee,
Insolvent Estate Mc William v Bank of Africa, Limited
(1911) 32 NLR 36
at 39 where Mr Justice Dove Wilson, JP stated as
follows:
“I wish to say
that where, on exceptions, leave to amend is given it is very
undesirable that the amendment should be admitted
to the record
before a party on the other side is satisfied, and the court is
satisfied. I think that leave to amend should
merely mean this –
that the party to whom the leave is given should draft the exact
terms of the amendment, which he proposes
and that he should submit
that proposal to the other side. If the other side sees no
objection to it, and consents to, it can
then become part of the
record, on consent of the parties. But if the other side sees
ground for objection the parties will
then have to come to the
court, who will determine whether the amendment is a competent and
proper one or not.” (See also
Clulee
v Mc Carthy and Company
28 NLR 487
and 489.)
In the present
matter, however, Jones J did not grant leave to amend, he went
further and ordered that the plaintiff be given
leave to “file
amended Particulars of Claim” within ten court days of the order.
An order at the conclusion of a judgment
has a very special
function: it is the executive part of the judgment that defines
what the court requires to be done or not
done. Where the meaning
of the order is clear and unambiguous, it is decisive and cannot be
restricted or extended by anything
else stated in the judgment or in
the rules of court. (See
Administrator
Cape v Mtshwaqela
1990 (1) SA 705
(A) 716B-C.) The same rules which find application
to the construction of documents apply also in interpreting
judgments or
orders.
I consider that
the order made by Jones J is clear and unambiguous. In these
circumstances no extrinsic fact or evidence is admissible
to
contradict it or to vary it. It has been held that this rule
excluding evidence to contradict or vary an order which is clear
and
unambiguous is a rule of law, not merely a rule of evidence that can
be waived by the parties. (See
P
ostmasburg
Motors Eiendoms Beperk v Peens
1970 (2) SA 35
(NC) at 39. See also
Herbstein
and Van Winsen
:
The
Civil Practice of the High Courts of South Africa (
5
th
edition) p. 936.)
In all the circumstances I am of the
view that on a proper interpretation of the order made by Jones J
the plaintiff was entitled
“to file amended particulars of claim”
without first following the procedure laid down in rule 28.
In
the result the application is dismissed with costs.
________________________
J
W EKSTEEN
ACTING
JUDGE OF THE HIGH COURT