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[2021] ZAECPEHC 10
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Mobility Insurance Underwriting Managers Pty Ltd and others v Spectrum Alert ITS Pty Ltd (345/2020) [2021] ZAECPEHC 10 (23 February 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: 345/2020
In
the matter between:
MOBILITY INSURANCE
UNDERWRITING
MANAGERS (PTY) LTD
1
ST
PLAINTIFF
STOP LOSS INSURANCE
BROKERS (PTY) LTD 2
ND
PLAINTIFF
SYNCHRONY INTERGRATED
SOLUTIONS (PTY)
LTD t/a “DIGIT
SYNC”
3
RD
PLAINTIFF
CONSTANTIA
INSURANCE COMPANY LIMITED
4
TH
PLAINTIFF
and
SPECTRUM
ALERT (PTY) LTD
DEFENDANT
JUDGMENT
GQAMANA
J:
[1]
This is an application brought in terms of rule 28(4) of the Uniform
Rules of Court, wherein the Plaintiffs
seek leave to amend their
particulars of claim. For convenience, the parties shall be
referred to as they are in the main
action. The application is
opposed by the Defendant on the bases that the proposed amendments
will render the particulars
of claim expiable due to the fact that
they do not carry sufficient facts to sustain a cause of action,
alternatively, they are
vague ad embarrassing.
[2]
The underlying facts which underpins the issues herein are as
follows. The Plaintiffs caused summons
to be issued against the
Defendant on 13 February 2020.
[1]
The Plaintiffs’ claim is that of the breach of contract and
agreements entered between them and the Defendant, namely,
the
appointment agreement, the insurance contract and the tracking
agreement. The relevant agreements and contract are attached
as
annexures to the original particulars of claim. It is alleged
that the First and Second Plaintiffs entered into a written
agreement, wherein they were appointed as the underwriting manager
and risk management consultant respectively by the Defendant.
The material terms of tracking appointments are spelled out in the
appointment agreement which is annexed marked “A”
in the
original particulars of claim. It is further pleaded that, the
First and Fourth Plaintiffs entered into a binder agreement
wherein,
they had to arrange insurance cover for the minibus feeder taxis and
buses on behalf of the Defendant. Further,
it is also alleged
that in terms of the appointment agreement the First and Second
Plaintiffs had to arrange for the vehicle tracking
solutions for the
buses and taxis which was arranged with the Third Plaintiff. In
addition, it is pleaded that the Third
Plaintiff and the Defendant
concluded on 28 November 2018, a written tracking agreement as per
annexure “F” to the
original particulars of claim.
The material terms of the such agreement are set out in annexure
“F”. The
Plaintiffs contend that the Defendant
failed to perform its obligation in terms of the aforesaid agreements
and contract in that,
it failed to pay the composite monthly premium
for the month of September 2019 and the Defendant purported to cancel
the aforesaid
agreement and contract. Accordingly, on the
Plaintiffs version, such conduct by the Defendant amounts to
repudiation of the
relevant agreements and contract which, the
Plaintiffs have accepted.
[3]
After the summons was duly served on 6 May 2020, the Plaintiffs’
attorneys were served with a
notice of bar. In response thereto, the
Defendant filed a notice of exception on 13 May 2020.
[4]
Thereafter the Plaintiffs served a notice of intention to amend on
the Defendant, on 15 June 2020.
The latter in response served a
notice of objection on 1 July 2020.
[5]
On 30 July 2020, the Plaintiffs filed a substantial notice of
amendment seeking to delete the particulars
of claim
in
toto
and replacing it with the new
proposed particulars of claim. That notice attracted another
objection from the Defendant which
was filed on 12 August 2020, in
accordance with sub-rule (3). That then necessitated the
Plaintiffs to file a substantive
application in accordance with
sub-rule (4) for leave to amend. It is this application which
is the subject matter of the
adjudication hereto.
[6]
The Plaintiffs’ proposed amendment as indicated in the
preceding paragraph seeks to replace
in
toto
the particulars of claim and to
substitute it with the new proposed one. It is vital to be
mentioned that, the litigation
between the parties hereto has not
progressed at all. There was no plea filed by the Defendant on
the original particulars
of claim. For all practical purposes,
if leave to amend the particulars of claim as proposed in the notice
of intention to
amend is granted, the Defendant will not be in a
worse or different position than it was before the proposed
amendments.
The latter could either file its plea, or take any
other steps contemplated in rules 23 or 30 of the Uniform Rules.
[7]
The principles applicable to applications of this nature have been
summarised by the court in numerous
cases dating back more than half
century ago. In
Moolman
v Estate Moolman and Another
,
[2]
Watermeyer J (then) said:
“
The
question of amendment of pleadings has been considered in a number of
English cases. See for example :
Tildesley
v Harper
(10 Ch.D. 393)
;
Stuart
v North Met
,
Tramways
Co
.
(16 QBD 556):
and 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, or in other words unless
the parties cannot be put back for
purposes of justice in the same position as they were when the
pleading it is sought to amend
was filed”.
[8]
Also in
Rosenberg
v Bitcom
,
[3]
Greenberg J (then) stated:
“
Although
it has been stated that the granting of the amendment is an
indulgence to the parties asking for it, it seems to me that
at any
rate the modern tendency of the Courts lies in favour of an amendment
whenever such an amendment facilitates the proper
ventilation of the
dispute between the parties.”
[9]
But, under certain circumstances a court may refuse to grant an
amendment. In
Benjamin
v Sobac South African Building and Construction (Pty) Ltd
,
[4]
Selikowitz J, (then) said:
“
Where
a proposed amendment will not contribute to the real issues between
the parties being settled by the Court, it is, I think,
clear that an
amendment ought not to be granted. To grant such amendment will
simply prolong and complicate the proceedings
for all concerned and
must, in particular, cause prejudice to the opposing party who will
have to devote his energy and expand
both time and money in dealing
with an issue, the resolution of which may satisfy the needs (or
curiosity) of the other party promoting
it, but which will not
contribute towards the adjudication of the genuine dispute between
the parties. ….. It is,
in my view, necessary in this
application that I consider whether or not the claim for relief under
s 32(2) is competent before
I grant the amendment. If the claim
is, in the circumstances of this case, not in law a viable claim I
would be doing not
only the respondent but also the applicant an
injustice by granting the amendment.”
[10]
In the instant matter the proposed amendments are to replace the
particulars of claim
in toto
and substitute them with the new one and to align them with the
evidence which will,
inter alia
,
show the Plaintiffs performance of their obligations in terms of the
relevant agreement and contract as well as the Defendant’s
breach or repudiation which gave rise to the cause of action.
As indicated herein above, the Defendant if leave is granted,
will
still be in the same position it was even before the amendments.
In resisting and objecting to the amendments, the Defendant
contends
that the proposed amendments will be expiable.
[11]
There are authorities that support the proposition that an amendment
should be refused if it is clear that the
amended pleading will (not
may) be expiable.
[5]
From
the above authorities, the amendment should be refused if it will
render the pleading expiable, however in my view this
is not such a
case. My assessment of the objections raised by the Defendant
is on the formulation of the cause of action,
not its validity.
There is no dispute that the relevant agreements and contract were
concluded and signed by the Plaintiffs
and the Defendant. The
Defendant knows adequately what the Plaintiffs’ case is and it
also knows which claim it is
called upon to meet. In any event,
if the proposed amendments is granted, the Defendant will not be left
without a recourse.
It may either file its plea or take any
other steps contemplated in rule 23 or 30 in accordance with sub-rule
(8) of the Uniform
Rules.
[12]
In the circumstances, I am inclined to exercise my discretion in
favour of the Plaintiffs and to grant the application
for leave to
amend.
[13]
On the issue of costs, the Plaintiffs seek an indulgence and under
ordinary circumstances they should bear the
costs of this
application. However, in the instant matter, the litigation
between the parties is for all intend and purposes
at its initial
phase and it will be fair and in the interest of justice not to award
a costs order at this early stage of litigation
as that may also
discourage the parties from fully engaging on the merits of matter
with the view of reaching an amicable solution.
[14]
Accordingly, the following order is issued:
1.
The Plaintiffs are granted leave to amend the particulars of claim as
set out in the proposed
amendment dated 28 July 2020, which is
annexed to the founding affidavit as annexure “FA1”.
2.
The Defendant is ordered to deliver, within 15 days after the service
of the amended particulars
of claim its plea, or to take any steps
contemplated in rules 23 and 30, if so advised.
3.
Each party to bear their own costs.
________________________
N GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel for the
Plaintiff(s)
:
L Ellis
Instructed
by
:
Logan Naidoo Attorneys
C/O
Annali Erasmus Inc.
PORT
ELIZABETH
Counsel for the
Defendant
:
I Lambrechts
Instructed
by
:
Joubert Galpin & Searle
Inc.
PORT
ELIZABETH
Heard on
: 18 February 2021
Delivered
on
: 23 February 2021
[1]
Pleadings
index p117.
[2]
1927
(CPD) 27 at 29.
[3]
1935
(WLD) 115 at 117.
[4]
1989
(4) SA 940
(C) at 958 B.
[5]
Krischke
v Road Accident Fund
2004 (4) SA 358
(W) at 363 A–D and the authorities referred
therein.