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[2012] ZAECPEHC 74
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Green v Dorfling and Another (2384/2011) [2012] ZAECPEHC 74 (25 September 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - PORT
ELIZABETH)
CASE NO: 2384/2011
DATE HEARD: 14/08/2012
DATE DELIVERED:
25/09/2012
In the matter between
RAYMOND GILBERT GREEN
......................................................................
PLAINTIFF
and
IAN DORFLING
...................................................................................
1
ST
DEFENDANT
JULIE PAMELA DORFLING
...............................................................
2
ND
DEFENDANT
JUDGMENT
ROBERSON J:-
[1] On 15 August 2012 I granted the
defendants’ application for a postponement of the trial. I
indicated that my reasons,
as well as my judgment on the wasted costs
occasioned by the postponement, would follow.
[2] It is necessary to refer in some
detail to the pleadings and certain proposed amendments to the
plaintiff’s particulars
of claim, as well as to the conduct of
the matter by the plaintiff, in order to appreciate why the
defendants applied for a postponement.
[3] The plaintiff is the father-in-law
of the first defendant and the father of the second defendant. In
this action he has six
claims against the defendants. Claim 1 is for
the rectification of a written agreement of sale of immovable
property. The plaintiff
alleged that on 15 April 2008 he and the
defendants concluded an agreement in terms of which the defendants
purchased from the
plaintiff the immovable property described as erf
1911, Lorraine, Port Elizabeth (the property). The market value of
the property
was R1 300 000.00, but the purchase price was R800
000.00, because the parties had agreed that the plaintiff would be
entitled
to occupy the flatlet on the property for the rest of his
life. The parties failed to include this life right in the written
agreement
and the plaintiff accordingly claimed rectification of the
agreement, to include this term.
[4] In claim 2 the plaintiff alleged
that the defendants had paid the purchase price but transfer has not
yet taken place. He alleged
that the defendants refused to honour the
agreement in that he was not allowed to occupy the flatlet. Tendering
return of the purchase
price, he claimed cancellation of the
agreement and restoration of possession of the property. In the
alternative he claimed enforcement
of the term of the agreement
entitling him to occupation of the flatlet.
[5] Claims 3, 4, and 5 were for the
repayment of loans allegedly made by the plaintiff to the defendant,
and claim 6 was payment
of monies he allegedly expended on their
behalf.
[6] The defendants denied that the
price of the property would be reduced on the basis alleged. They
admitted concluding the agreement
on 15 April 2008 but denied that it
was the parties’ intention that the plaintiff retained a right
to occupy the flatlet
for the rest of his life. They further alleged
that a second written agreement of sale of the same property for the
same price
was concluded between the parties on 21 September 2010,
which second agreement novated the first written agreement. They
accordingly
denied that they were in breach of the first agreement
and that the plaintiff was entitled to cancellation and restoration
of the
property. They pleaded various defences to the other claims.
[7] The defendants have two claims in
re-convention but only the first claim is relevant for present
purposes. Relying on the second
written agreement, they alleged that
they have performed by paying the purchase price of R800 000.00 and
accordingly claim that
the plaintiff, failing whom the Sheriff, signs
the necessary documentation to transfer the property into their
names.
[8] In his plea to the first claim in
re-convention, the plaintiff admitted the second agreement but again
pleaded the term that
he would have a life right to occupy the
flatlet.
[9] The Registrar’s notice of
set down of trial was dated 12 December 2011 and the trial date
allocated was 14 August 2011.
[10] On 27 June 2012 the plaintiff
delivered a notice of intention to amend his particulars of claim.
The proposed amendment relating
to claim 1 was to substitute the date
of the agreement with the date 21 September 2010, in place of 15
April 2008, and to add a
paragraph pleading that the failure to
include the term concerning the life right was a result of a bona
fide mutual error. The
proposed amendment to claim 2 was to add to
his tender to repay the purchase price, that the sum of R600 000.00
allegedly loaned
to the defendants (this was the subject matter of
claim 3), be set off. Other proposed amendments related to the terms
of repayment
of the various loans. The defendants did not object to
this notice of intention to amend but on 23 July 2012 the notice was
withdrawn.
[11] On the same day a further notice
of intention to amend was delivered. Again the date of the conclusion
of the agreement was
to be substituted with the date of 21 September
2010. Further paragraphs sought to be added, were that both written
agreements
were to include the term concerning the life right, and
that the failure to include this term resulted from a bona fide
mutual
error, or that it was an intentional act on the part of the
defendants. The set off of R600 000 and the terms of repayment of the
loans were repeated.
[12] The defendants objected to this
second notice of intention to amend, on the grounds that the
plaintiff was now relying on,
and seeking rectification of, a
different agreement, and that they were unable to prepare timeously
for trial owing to the late
delivery of the notice of intention to
amend. In the meanwhile the plaintiff prematurely filed his amended
pleadings.
[13] On 7 August 2012 the plaintiff’s
attorney wrote to the defendants’ attorney stating that the
first paragraph of
the notice of intention to amend would be
abandoned (the substitution of the date of the agreement), and that
the rest of the amendments
would be sought at the close of the
plaintiff’s case at the trial.
[14] In a Rule 37 minute dated 13
August 2012 it was recorded that the defendants’ stance was
that unless the plaintiff gave
an undertaking not to amend his
particulars of claim or cause of action as they presently stood, the
defendants would apply for
a postponement of the trial.
[15] On 13 August 2012 the plaintiff’s
attorney wrote to the defendants’ attorney stating
inter
alia
that the proposed amendments would not prejudice the
defendants in their preparation for trial, and suggesting that they
start
preparing a substantive application for a postponement.
[16] A substantive application for a
postponement was brought by the defendants. It could not be heard on
14 August 2012 because
there was no court available and was only
heard on 15 August 2012. By that time answering and replying
affidavits had been delivered.
[17] It was submitted at the hearing
of the application that given the date of the notice of intention to
amend, the application
of the time periods contained in Rule 28 would
take the amendment procedure beyond the trial date. A postponement
was necessary
in order that the pleadings could be properly
ventilated. The proposed amendments introduced a new cause of action
and if an amendment
was sought at the close of the plaintiff’s
case, it would inevitably lead to a postponement, resulting in a
piecemeal trial.
[18] The application was opposed by
the plaintiff. It was submitted that the proposed amendments caused
no prejudice to the defendants
because the 2010 agreement was dealt
with in the counterclaim and the defendants knew that the plaintiff
would make the same allegation
in relation to the 2010 agreement.
There was no new cause of action. It was mentioned during argument
that it was the plaintiff’s
case that the 2008 agreement was
the true agreement. In the event of a postponement being refused, the
plaintiff’s counsel
indicated that the amendments would be
moved for at the outset of the trial.
[19] In my view at this stage the
defendants were justified in seeking a postponement. The proposed
amendment did create a new cause
of action which would have required
the defendants to amend their plea. Rectification of a different
agreement was now being sought,
such agreement being concluded in
different circumstances. If the plaintiff was going to argue that the
2008 agreement was the
true agreement, this added a further dimension
to the amendment and the plaintiff’s cause of action based on
the 2010 agreement.
Moreover, as pointed out by counsel for the
defendants, the counterclaim was separate and the defendants needed
to know what case
they had to meet on the claim. The time periods
referred to in Rule 28 had not expired and it was not for the
plaintiff to accelerate
them, when he in the first place had
delivered a notice of intention to amend so near to the trial date.
The bottom line was that
the trial could not proceed in an atmosphere
of such uncertainty.
[20] That was not the end of the
matter however. After the defendants’ counsel had replied, the
plaintiff’s counsel
informed the court that the plaintiff would
conduct his case on the basis of the 2008 agreement and his plea to
the counterclaim.
He gave an undertaking that the trial would proceed
on the basis that rectification of the 2008 agreement would be sought
and that
claim 2 would relate to a breach of the 2008 agreement. The
plea to the counterclaim would remain and in the event of the 2010
agreement being capable of rectification, the plaintiff would be
entitled to cancellation of the 2010 agreement, recover possession
of
the property against a refund of the purchase price.
[21] Thereupon the defendants applied
again for a postponement. It was submitted that the pleadings were “a
total mess”.
The plaintiff would only be allowed to present
evidence in support of his claim by relying on the 2008 agreement and
would have
to amend his pleadings in relation to the counterclaim,
because in his plea he incorporates the 2010 agreement. The
defendants
came to court to move for a postponement because the
plaintiff had indicated he would seek an amendment at the close of
his case.
As I understood counsel’s argument, preparation for
trial was therefore impeded, because the defendants were entitled to
know what the plaintiff intended to do.
[22] The plaintiff again opposed a
postponement because the defendant’s earlier grounds for a
postponement had fallen away.
Plaintiff’s counsel suggested in
argument that in the event of a postponement, amendments might still
be sought by the plaintiff
and the undertaking to seek relief on the
basis of the 2008 agreement would fall away.
[23] In my view, again, the trial
could not proceed in this atmosphere of uncertainty. The sudden
abandonment of the amendments
which up to this point were to be
strenuously sought, caught the defendants (and the Court) by
surprise.
[24] As counsel for the defendants
submitted, a postponement would be fair to both parties. Certainty
had to be achieved as to precisely
what the plaintiff’s cause
of action was and it was clear from the manner in which his case was
conducted in the application
for a postponement, that there was
uncertainty.
[25] I therefore granted a
postponement, and postponed the matter
sine die.
Costs
[26] I have already indicated that up
to the stage when the plaintiff abandoned his proposed amendments
regarding the 2010 agreement,
a postponement was justified. The
postponement was brought about by the late notice of intention to
amend and the plaintiff’s
firmly stated intention to seek
amendments at the close of his case. The trial could not possibly
have run on this basis, and the
defendants had been put in a
difficult position and were obliged to move for a postponement. The
plaintiff persisted in his opposition
to the postponement up until
shortly before the lunch adjournment. The defendants are therefore
entitled to the wasted costs occasioned
by the postponement up until
the time the undertaking to rely on the 2008 agreement was given.
They are also entitled to the costs
of the substantive application
for a postponement.
[27] In view of the uncertainty of the
future conduct of the plaintiff’s case I am of the view that
the remaining costs of
15 August 2010 should be reserved for the
decision of the trial court. There was argument about the costs of 14
August 2012 when
no court was available. I leave this aspect to the
discretion of the Taxing Master/Mistress.
[28] The following order is made:
[28.1] The plaintiff is ordered to pay
the wasted costs occasioned by the postponement of the trial up to
the stage of the undertaking
given by the plaintiff regarding
reliance on the 2008 agreement.
[28.2] The plaintiff is ordered to pay
the costs of the substantive application for a postponement.
[28.3] The remaining wasted costs
occasioned by the postponement are reserved for the decision of the
trial court.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:-
For the Plaintiff: Adv D Smith,
instructed by J R Bester & Associates,
Port Elizabeth
For the Defendants: Adv B
Pretorius, instructed by Howard Collen Attorney, Port Elizabeth