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[2016] ZAECPEHC 42
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RGT Smart Operations (Pty) Ltd v Verlag Automobil Wirtschaft (Pty) Ltd t/a Arvato South Africa (2446/2013) [2016] ZAECPEHC 42 (25 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 2446/2013
DATE:
25 AUGUST 2016
In
the matter between:
RGT
SMART OPERATIONS (PTY)
LTD
.............................................................................
Applicant
(Plaintiff
in the main action)
And
VERLAG
AUTOMOBIL WIRTSCHAFT
(PTY)
...............................................................
Respondent
LTD
T/A ARVATO SOUTH AFRICA
(Defendant
in the main action)
JUDGMENT
BESHE
J:
[1]
The parties are competitors in providing customer satisfaction
services to the motor body repairer industry. They are involved
in
litigation wherein plaintiff seeks damages against the defendant
based on the delict of unlawful competition. The defendant
has in
turn instituted a claim in reconvention against the plaintiff
contending that the latter has disseminated incorrect and
defamatory
information about the defendant to the “relevant market”.
[2]
The present proceedings are concerned with an application by the
plaintiff for leave to amend its particulars of claim in terms
of
Rule 28 of the Uniform Rules
of
this court.
[3]
The application is opposed by the defendant. The basis upon which the
proposed amendments are objected to is that they do not
provide
details or lack particularity that is necessary to disclose a cause
of action and that it will be difficult for the defendant
to plead
thereto. This turn will cause prejudice to the defendant in
conducting its defence. Further that the proposed amendments
are
inchoate, do not constitute a cause of action and would render the
particulars of claim excipiable.
[4]
Paragraphs sought to be amended are paragraphs 8, 11 and 12 of
plaintiff’s particulars of claim by the insertion of
subparagraph
thereto.
[5]
The defendant has already filed its plea to the particulars of claim
as they stand (before the amendments sought). In some instances
defendant went so far as to amplify its response.
[6]
The current relevant particulars of claim read as follows:
“
8.
At all material times and until 23
rd
January 2013, one Justin Stuart Swanepoel (Swanepoel) was employed by
the plaintiff as Manager of the SQS System”
.
Paragraph
9 and 10 read as follows:
“
9.
Swanepoel’s employment with the plaintiff was subject to 3
agreements, all dated 7 February 2012, copies of which are attached
hereto marked as A, B and C.
10.
Annexure C hereto is a confidentiality agreement, which protects the
plaintiff’s customer connection and confidential
information.”
[7]
The proposed additions to paragraph 8 by means of the amendment read
as follows:
“
8.2
In his capacity as an employee of the plaintiff, Swanepoel acquired
confidential information, relating to the identity and needs
of the
plaintiff’s customers, the plaintiff’s business practices
and the plaintiff’s contractual arrangements
with the
plaintiff’s customers.”
[8]
The proposed addition to paragraph 11 reads: The defendant:
“
11.5
utilized the confidential details of the plaintiff’s SQS
system, and the plaintiff’s other information as set out
in
paragraph 8.2 above, as a springboard in order to obtain an unfair
and improper head start over the plaintiff in the market
place.”
[9]
The proposed amendment to paragraph 12 reads:
“
12.4
The defendant competed unlawfully with the plaintiff by acting in the
manner described in paragraph 11.5 above.”
[10]
It was submitted on behalf of the plaintiff that all that the
amendments seek to do, is to broaden the scope of the present
cause
of action – unlawful competition. This as a result of
information obtained recently from a belated discovery of various
documents and correspondence by the defendant.
[11]
It is trite that the primary objective of allowing an amendment is to
obtain a proper ventilation of the dispute between the
parties, to
determine the real issues between them, so that justice may be
done.
[1]
The following was
stated regarding the approach to be taken in applications for
amendments in
Moolman
v Estate Moolman
:
[2]
“
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 will
cause an injustice to the other side which cannot be compensated by
costs, or in other words unless
the parties cannot be put back for
the purposes of justice in the same position they were when the
pleading which is sought to
be amended was filed.”
[12]
So amendments will as a general rule be granted save in circumstances
where such an amendment or amendments will result in
prejudice or
injustice to the other party.
[3]
[13]
Having heard
Mr Buchanan SC
for the plaintiff and
Mr McNully SC
for
the defendant and having read papers filed of record, I am not
persuaded that the proposed amendments will prejudice the defendant
in the conduct of its defence. I am not persuaded that the
application is
mala fide
– this has not been alleged by the defendant in any event. In
my view the proposed amendments are aimed at clarifying or
amplifying
an already averred cause of action in respect of which defendant had
no difficulty pleading thereto.
[14]
Accordingly, leave is granted to the plaintiff to amend its
particulars of claim as set out in plaintiff’s notice to
amend
in terms of Rule 28 (1) dated 2 August 2016.
Plaintiff
is ordered to pay the costs of the amendments.
Defendant
is ordered to pay the costs of the opposition. Such costs to include
costs consequent upon the appointment of two counsel.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant : Adv: Buchanan SC and Adv: Ronaasen
(Plaintiff
in the main application)
Instructed
by : SPILKINS INCORPORATED
15
Rink Street
Central
PORT
ELIZABETH
Tel.:
041 – 582 1705
Ref.:
SP SPILKIN/M JIKS
For
the Respondent : Adv: McNully SC and Adv: Slabbert
(Defendant
in the main application)
Instructed
by : WEBBER WENTZEL
Ref:
V Movshovich/ P Smith/ D Cron/ 2415035
C/o
PAGDENS ATTORNEYS
Pagdens
Court
18
Castle Hill
Central
PORT
ELIZABETH
Tel.:
041 – 502 7200
Ref.:
Mr P Davis
Date
Heard : 23 August 2016
Date
Reserved : 23 August 2016
Date
Delivered : 25 August 2016
[1]
Erasmus Superior Court Practice 2
nd
Edition Vol. 2 Serice 1, 2016 D1 – 332.
[2]
1927 CPD 27
at 29 quotation appears in same page as the authority
quoted in footnote 1.
[3]
Devonia Shipping Ltd v Luis (Yeiman Shipping Co. Ltd intervening)
1994 (2) SA 363
at 369.