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2023
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[2023] ZAECQBHC 42
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Timber Shavings CC v Homely Property and BNB (Pty) Ltd (3357/2022) [2023] ZAECQBHC 42 (1 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION
– GQEBERHA
Reportable/Not
Reportable
Case No:
3357/2022
In
the matter between:
TIMBER
SHAVINGS CC
Applicant
And
HOMELY
PROPERTY AND BNB (PTY) LTD
Respondent
JUDGMENT
ELLIS AJ:
[1]
This is an opposed application in terms of rule 28 of the Uniform
Rules (“the application”)
in terms of which the applicant
is seeking an order that:
1.
The applicant be given leave to amend its
particulars of claim in accordance with the notice to amend, dated 22
March 2023; and
2.
The respondent pays the costs of the application on the scale as
between attorney and client.
[2]
The application followed as a result of the respondent delivering a
notice of objection in terms
of rule 28(3) on 30 March 2023 (“the
objection”), objecting to the proposed amendment on the
following grounds:
“
1.
On the 24
th
of November 2022 defendant caused a notice in terms of Rule 35(14) to
be served on plaintiff. In terms of this notice plaintiff
was
requested to furnish copies of the invoices rendered as required by
paragraphs 4.2, 4.2.2 and 6 of Plaintiff’s Particulars
of Claim
as read with paragraph 3, 4.1 and 4.2 of the agreement attached
thereto marked “A” and as read with paragraph
1 under the
heading “Rates” of Addendum A attached to the agreement
marked “A”.
2.
On the 2
nd
of December 2022 plaintiff replied to defendant’s request as
follows: “
As per the Agreement and
intention of the parties, no invoices were rendered for the initial
100 plots cleared and the 37 plots
trenched, as the plaintiff
intended on receiving transfer of a plot in lieu of part payment for
the works done”.
3.
Plaintiff’s reply as abovesaid is in
clear contradiction to the proposed amendment plaintiff now seeks to
introduce.
The amendment therefore renders plaintiff’s
proposed amended Particulars of Claim excipiable.
4.
Annexure “B” to the
amendment is clearly a forgery and plaintiff’s application if
therefore also clearly
mala fide.
5.
Defendant will be seriously prejudiced should plaintiff be permitted
to effect
the proposed amendment”.
[3]
On an analysis of the pleadings, the applicant’s claim against
the respondent is based on
a written agreement (“the
agreement”) between the parties in terms of which the applicant
would provide certain services
to the respondent, including removing
grass and rubble, digging house foundations and perform rock-breaking
services and the like
(“the services”). Payment by
the respondent is regulated under “Fees” in clause 3 of
the agreement
and also refers to Addendum “A” to the
agreement.
[4]
It is specifically recorded in clause 3 of the agreement that any
delivery of service in accordance
with the agreement was subject to
the parties entering into a separate deed of sale in terms of which
the respondent undertook
to transfer Erf No. 317 situated on the
Wedgewood Estate to the applicant, on such terms as would be set out
in that separate deed
of sale, and to construct a dwelling on the
property on such plan as to be determined by the applicant.
[5]
Payment for the services is regulated by clause 4 of the agreement,
which obliges the applicant
to render invoices as required by the
respondent from time to time, to enable the respondent to process
payment, and again records
that payment would be dependent upon full
compliance with the payment arrangements as set out in Addendum “A”
to the
agreement.
[6]
The relevant part of Addendum “A” reads as follows:
“
RATES
The
Company, or its nominated agent, undertakes to transfer a plot in the
Wedgewood Estate to the nominated entity of the Service
Provider
in
lieu
of part payment for the rendering
of services as set out herein which plot is to be nominated by the
Service Provider. In
the event that the Company does not
transfer the plot to the nominated entity of the Service Provider in
terms of the agreement
between the parties or in the event that the
Company fails to build a dwelling as set out below the parties agree
that the Company
will pay the Service Provider an amount of R2 600.00
per plot that has been so cleared
upon
the presentation of an invoice
”.
(My emphasis underlined.)
[7]
The applicant pleads in its particulars of claim that 100 plots were
cleared, and 37 plots trenched.
The applicant pleads further that due
to non-compliance of the agreement with the
Alienation of Land Act,
68 of 1981
, it is not enforceable and accordingly the applicant is
unable to claim transfer as per the agreement
in lieu
of works
completed. As such, the applicant pleads that its claim lies in the
payment of monies for the work done. It is common cause
that no
separate written agreement of sale was entered into between the
parties.
[8]
Prior to delivery of its plea, the respondent filed a notice under
rule 35(14)
(as referred to in the objection) and to which the
applicant replied (in the manner as referred to in the objection).
[9]
The respondent then delivered its plea, which included two special
pleas and the plea over, contending
in its second special plea that
summons was prematurely issued, as the applicant confirmed that no
invoices were rendered and the
applicant was not entitled to payment
sounding in money as the respondent remained willing and able to
transfer an immovable property;
that the applicant refused to accept
transfer of such property; and that the applicant had failed to
render any invoices. The first
special plea is irrelevant for current
purposes.
[10] In
the respondent’s plea over, the respondent denies that the
applicant’s claim lies in the payment
of monies for the works
done and repeats that the applicant can only insist on payment in the
event of the respondent failing to
transfer Erf 317, Wedgewood Estate
to the applicant. Further, the respondent pleads that applicant
refused to accept transfer
of the property and was therefore
precluded from demanding any form of payment
in lieu
of
transfer. The respondent repeated that applicant was compelled
to render invoices and that the applicant failed to do
so and was
therefore not entitled to demand payment.
[11] It
is against this background that the applicant’s application is
to be considered, as at the heart
of the intended amendment the
applicant seeks to attach an invoice, dated 19 January 2023, in the
amount of R270 020.00 in
respect of the clearing and trenching
done.
[12] Mr
du Toit, appearing on behalf of the respondent, accepted that the
statement by Watermeyer J in
Moolman v Estate Moolman
(1927
CPD 27
at 29) is frequently relied upon by the court in deciding
whether to allow an amendment:
“
[T]he
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend in
mala
fide
or unless such an 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
the purposes of justice in the same position as they were when the
pleading which it is sought
to amend was filed”.
[13]
The power of the court to allow material amendments is, accordingly,
limited only by considerations of prejudice
or injustice to the
opponent.
[14]
The Supreme Court of Appeal in
Media 24 (Pty) Ltd v Nhleko &
Another
((Case No. 109/22)[2023] ZASCA 77 29 May 2023)) at para
[17] repeated the principles of prejudice and restated that the
principle
that an amendment that may lead to the defeat of the other
party is not the type of prejudice to be taken into account in
deciding
whether to allow an amendment.
[15] At
para [19] of
Media 24
Nicholls JA reminded trial courts that
an adherence to the fundamental principles of pleadings should be
observed and parties should
be allowed to ventilate their case as
they determine, within the bands of the principles that the
facta
probanda
must be pleaded, not the
facta probantia.
A
litigant is not required to prove its case in the pleadings, nor to
describe the evidence to be led, but to state the material
facts on
which it relies and which it intends to prove at the trial.
[16] Mr
du Toit argued that the intended amendment would render the
particulars of claim excipiable for being
vague and embarrassing and
failing to disclose a cause of action as the particulars of claim do
not contain allegations why the
applicant is entitled to claim
payment in money or allegations that the relevant steps relating to
breach were followed. However,
the root of the excipiability, as set
out in the objection, lies in the contradiction between the
applicant’s version on
2 December 2022, being that no invoices
were rendered, against the invoice issued and dated 19 January 2023.
[17]
The highwater mark of the prejudice that respondent alleges it would
suffer if the amendment is allowed,
is that the invoice purports to
be an invoice issued in terms of the agreement, which it contends it
is not, and as such, the respondent
will be prejudiced in its defence
if the applicant is permitted to introduce irrelevant evidence not
created in terms of any agreement
between the parties.
[18] Mr
du Toit argued further that an invoice could only be issued once the
respondent failed to transfer Erf
317 to the applicant, and then
failed to rectify the breach after the applicant acted in accordance
with clause 13 of the agreement
by notifying the respondent of the
breach and affording it the opportunity to rectify it. Allowing the
invoice to be introduced,
so the argument went, would be tantamount
to condoning the applicant’s non-compliance with the agreement
and the respondent
would be prejudiced as it would not be able to
challenge the admissibility of the invoice.
[19] I
find myself unable to agree with Mr Du Toit that to allow the
amendment and introduction of the invoice
would be tantamount to
amending the contract to the applicant’s benefit and to the
prejudice of the respondent. It
also does not follow that the
mere introduction of the invoice, without further proof thereof at
the trial, would immediately render
the invoice valid. The
amendment will do nothing more, or less, than to allow the applicant
to place its case before the
trial court. It is common cause that the
invoice did not exist on 2 December 2022. The applicant’s
entitlement to claim payment
based on the invoice issued and dated 19
January 2023 instead of taking transfer
in lieu
of payment, is
to be ventilated at trial. That determination is not for the
court required to decide whether to grant or
refuse an application to
amend.
[20]
The main issues between the parties are whether the terms of the
agreement (without a further separate deed
of sale) are enforceable
and whether the applicant is entitled to claim payment in money for
the services rendered. The respondent’s
defence, in my view,
remains unaltered by the introduction of the invoice. Allowing
the amendment will only prejudice the
respondent insofar as costs are
concerned, which prejudice can be ameliorated by ordering the
applicant to pay the costs occasioned
by the amendment.
[21] As
to the allegations of forgery in the respondent’s objection,
this can readily be disposed of as
the director of the applicant in
his affidavit in support of the application confirmed the
authenticity of the invoice.
[22]
Turning now to the aspect of costs. I do not believe that the
notice of objection was vexations or
frivolous, as the applicant on
its own version confirmed that by 2 December 2022, no invoices had
been rendered. It was only
when the affidavit in support of the
application was filed, that the applicant tendered an explanation as
to why there were no
previous invoices and why an invoice had now
been issued – mainly based on the respondent’s special
plea that monies
could not be claimed without an invoice.
[23]
The principles governing costs in circumstances where a party seeks
an indulgence need not be restated.
Mr Friedman, for the
applicant, rightly contended that costs occasioned by the amendment
are to be for the applicant’s account.
In finding that
the basis for the amendment was only fully explained in the
application, it follows that the applicant ought to
also pay its own
costs in respect of the drafting of the application.
[24] As
to the costs incurred as a result of the opposition to the
application, these are costs that the applicant
ought not to bear, as
the respondent was unable to demonstrate prejudice within the ambit
of the relevant legal principles, nor
could the respondent
demonstrate
mala fides
on the part of the application.
[25] I
am not persuaded by Mr Friedman’s submission that the current
circumstances can be likened to those
in
Media 24
where the
objection was found to be reckless and vexatious and as such, I am
not inclined to award costs on a punitive scale.
[26] In
the result, the following order will issue:
1.
The application for leave to amend is
granted.
2.
The applicant shall deliver the amended
particulars of claim no later than 10 days after the date of this
order.
3.
The respondent may, within 15 days after
the amendment has been effected, make any consequential adjustment to
the documents filed
by it and may also take the steps contemplated in
rules 23
and
30
.
0
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4.
The applicant shall pay the wasted party
and party costs occasioned by the amendment.
5.
The respondent shall pay the costs of the application from 20 April
2023, on the scale as
between party and party.
L ELLIS
Acting Judge of the
High Court
Appearances:
For
the applicant:
Mr
GJ Friedman
Instructed
by:
Friedman
Scheckter Attorneys
For
the respondent:
Adv
P Du Toit
Instructed
by:
Britz
Attorneys
c/o
Lizelle Pretorius Inc
Date heard:
20 July 2023
Date
delivered: 1 August 2023