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[2024] ZAKZPHC 8
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M-B.F.M v H.P.N.P (5182/2022P) [2024] ZAKZPHC 8 (8 February 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no:5182/2022P
In the matter between
M[...]-B[...] F[...]
M[...]
Plaintiff/Applicant
and
H[...] P[...] N[...]
P[...]
Defendant/Respondent
JUDGMENT IN AN
AMENDMENT APPLICATION
PITMAN
AJ
[1]
In this action the plaintiff brings an application for the amendment
to the particulars
of claim by the substitution of those that
accompanied the summons with those set out attached to her notice of
amendment dated
16 May 2023. A copy of which can be found on pages 29
- 43 of these papers. The defendant objected to the proposed
amendment resulting
in this application. The defendant’s
objections are to be found on pages 44 – 49.
[2]
The papers are substantial, comprising 205 pages. This is because the
applicant has
included in the papers the history of earlier attempts
by the applicant to amend and the various notices and objections
involved
therein. None of that, in my view, is of any relevance to
the merits of the proposed amendment and ought not to have been
included
as part of this record. Applicant argues that they are
relevant to the punitive costs order sought. That may be so, but
simple
and short reference to them in the founding affidavit would
have been suffice.
[3]
The particulars of claim attached to the initial summons in summary
alleged that the
parties had lived together despite never being
married for about six and half years pursuant to an alleged agreement
that they
would do so and would,
inter alia
, share in all of
their assets. In the event of their relationship terminating, they
would equally share the assets they had started
with plus those that
had been accumulated. It was pleaded that in the circumstances what
is referred to as a Universal Partnership
was created. It was pleaded
that that relationship was terminated on 18 November 2021 and that as
a consequence the plaintiff was
entitled to Orders declaring the
universal partnership to have existed, the valuation of the estate at
its termination and a number
of further claims for Orders for the
payment of specified sums of money.
[4]
The pleadings are still in their infancy despite the summons having
been issued in
April 2022. There has been no plea to the initial
particulars of claim because of the objections to it by the defendant
from the
outset.
[5]
The proposed new particulars of claim (“the particulars”)
also plead,
but in a different manner and form, for a universal
partnership coming into existence between the parties and sets out
the facts
upon which it will be alleged that lead to that conclusion.
It also alleges that that partnership terminated on 18 November 2021
and sets out the reasons for that conclusion. The Orders now sought
follow from those allegations, being the declaration of the
universal
partnership and its termination, together with ancillary Orders as a
consequence thereof.
[6]
The defendant’s objections, and the argument before me, can be
summarised as
follows:
a)
Whilst pleading that during the existence
of the universal partnership various assets were either brought into
the universal partnership
or established or acquired during its
existence and thereafter used in the business of the universal
partnership, no particulars
are provided as to exact identity of
these alleged assets and accordingly the pleadings are vague and
embarrassing.
b)
The claim for the appointment of a receiver
or liquidator without identifying the said assets renders the
particulars vague and
embarrassing.
c)
The claim that the parties deliver to the
receiver or liquidator a statement of each’s “assets and
liabilities as at
18 November 2021” is contradictory to the
allegation in paragraph 7.7 of the particulars.
d)
In the answering affidavit, and in
argument, a further new objection was raised being that the plaintiff
had failed to plead an
essential element of a universal partnership,
namely the allegation that it was established to make a profit. That
objection had
not been included in the Notice of Objection.
e)
In argument only the defendant also raised
an additional objection being that the failure to join the various
“entities”
referred to in the particulars rendered them
excipiable on the basis of non-joinder.
f)
I also note that in the answering
affidavit, the defendant alleged that the particulars did not
introduce triable issues on the
basis that it needed allegations of
the evidence that would be led to prove the universal partnership.
That objection was not pursued
in argument before me nor in the
defendant’s heads. It was ignored. I have no doubt that that is
because that objection,
at this early stage of the litigation is
meritless in my view. I therefore do not propose to deal with it any
further.
[7]
The plaintiff argued that the particulars were not excipiable on any
basis. All that
needed to be pleaded were the
facta probanda
and that had been done. There could be no prejudice to the defendant
for purposes of a plea and the particulars could be pleaded
to.
Joinder was not an excipiable issue but could be taken by way of a
special plea if necessary. The alleged failure to plead
the
requirement of the making of a profit had not been raised in the
Notice of Objection and despite being raised in the answering
affidavit, this Court should, and could, not consider it as the Court
was bound by the Objections set out in the Notice. It was
argued that
in any event, the particulars, if read as a whole, clearly provided
allegations that the alleged partnership was for
profit. I was
referred to, for example, paragraphs 5.11, the thereafter repeated
allegation that the aim was to “accumulate
wealth”, the
thereafter repeated allegation as in paragraph 7.6 that the parties
would “support themselves and the
joint household from the
income and the profits from the aforesaid business enterprises…”.
[8]
The plaintiff’s counsel also referred me to the judgment of
Southwood J in Manyatshe
v South African Post Office, 2008. She
handed me a copy. I have found it in the Jutatstat library where it
is cited as
Manyatshe v South African Post Office Ltd, 2008
JDR 0999 (T).
In paragraph [2] thereof, being a matter of an
opposed application for an amendment, Southwood J said: “
The
defendant opposes the application on the grounds that the particulars
of claim will be excipiable, either because they will
lack averments
necessary to sustain an action or because they will be vague and
embarrassing. The grounds of objection are appropriate
to an
exception and accordingly the application will be dealt with as if it
were an exception. This is preferable to allowing the
amendment in
the sure knowledge that the defendant will immediately note an
exception – De Klerk & Another v Du Plessis
& Others
1995 (2) SA 40
(T) at 43I – 44B”.
In the De Klerk matter
referred to therein, Van Dijkhorst J said the following: “
The
application for amendment was opposed on the ground that the
incorporated part of the plea would then be excipiable for a number
of I reasons. An amendment which would render a
pleading excipiable should not be allowed. Whether a pleading
would
or would not become excipiable is a matter of law which should be
decided by the Court hearing the application for amendment.
It would
be incorrect, in my view, to hold that it is arguable that the
amendment would not render the pleading excipiable, allow
it, and
send the parties away to prepare for another battle on exception on
the same point.”
(Supra) at 43I – 44B.
[9]
I am in entire agreement with the view of Southwood J and Van
Dijkhorst J on that
issue. The approach is applicable to the facts
in
casu
, particularly where there may
prima facie
be an
intention by the defendant to further delay the conclusion of this
matter, as is argued by the plaintiff. Accordingly, my
decision is
premised on that legal position.
[10]
As long ago as
Moolman v Estate Moolman
1927 CPD 27
at 29
, the
general approach to be applied in opposed applications for amendments
was that 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 the purposes of justice in
the same position as they were when the pleading which is sought to
be amend
was filed”.
[11]
In my view, a rational and sensible reading of the proposed
particulars reveals that the required
elements of an alleged
universal partnership (The
facta probanda
) are adequately
pleaded. I do not consider that it is necessary for the plaintiff, at
the stage of her particulars of claim, to
set out a more precise
identity of each and every entity or business she alleges was brought
into the partnership or created or
established during the
partnership. The essentials to be pleaded in relation to such a
partnership contract are:
“
(a)
That each of the partners brings something
into the partnership or binds
himself/herself to bring something into it, whether it be money or
labour or skill.
(b)
That the business should be carried on for the joint benefit of both
parties.
(c)
That the object should be to make profit; and
(d)
That the contract between the parties should be a legitimate
contract.”
See
for example the judgment of Hugo J in
Zulu
v Zulu and Others2008 (4) SA 12 (D)
at
page 15, H – J
[12]
That being said, the proposed particulars of claim in fact describe
in detail what the plaintiff
alleges the parties did in furtherance
of the partnership businesses and entities acquired by it together
with the businesses traded
in by the partnership during its
subsistence in paragraph 8 (over 9 pages). In my view more than
sufficient particularity is pleaded
to which the defendant can plead.
The pleadings are not vague and/or embarrassing in my view.
[13]
The objection that the element of “profit” is not alleged
was raised late. As set
out above, it does not appear in the
Objection. I do not need to decide whether it is permissible to
determine it as a consequence
because I consider it to be meritless
in any event. “Profit” in regards the requirement for
this alleged universal
partnership need not be purely financial. See
for example
Ally v Dinath
1984 (2) SA 451
(T)
where at page
455,
Eloff J said: “
I turn to the second point raised
in the exception, namely that the pleading is excipiable for want of
an averment that the object
of the enterprise was to make a profit.
It is at once necessary to state what is meant by the requirement
that the object of a
partnership should be to earn a profit. What is
required is not a pure pecuniary profit motive; the achievement of
another
material gain, such as a joint exercise for the purpose of
saving costs, will suffice. De Groot 3.12.1 requires no
more
than that the aim should be "gemene baat te trekken".
And in Isaac's case supra at 956 an object "to
provide for the livelihood and comfort of the parties, and their
children, including the proper education and upbringing of the
latter" was held to be equivalent to making a profit and thus
sufficient for partnership purposes. In the present case
the objective
of the accumulation of an appreciating joint
estate is alleged, and, at least for pleading purposes, that is in my
estimation sufficient”.
[14]
On that basis, in addition to what I have said above as regards the
pleaded allegations of “profit”
and “wealth”
being a purpose of the partnership, the plaintiff alleges in, for
example, paragraph 8 that it was agreed
that she would assist the
defendant with administrative tasks in the businesses, would assume
the responsibility of running the
joint household and looking after
the children in order to provide him the opportunity to “accumulate
assets” for the
benefit of the partnership.
[15]
In the circumstances I am of the view that the element of “
for
profit”
is sufficiently pleaded and that the belated
objection as to the lack of all elements of the cause of action is
meritless and has
not been
bona fide
raised by the defendant.
[16]
As to non-joinder, the second belated Objection, the plaintiff’s
Counsel argued that the
point had not been raised in the Notice of
Objection, nor as a directly relevant point in the answering
affidavit. She argued that
in any event it was not an excipiable
issue and should be raised as a special plea. I asked the defendant’s
counsel for any
authority that non-joinder could be raised at the
exception stage. She could provide none notwithstanding that her
heads of argument
spent at least a page on that submission. I
therefore directed that the parties could both provide supplementary
written heads
by 16h00 on Monday 5 February 2024 by emailing them to
my registrar. The defendant’s Counsel took up the offer and
provided
such supplementary head, as did the plaintiff’s
Counsel. In her supplementary heads the defendant’s
Counsel
refers to judgements which confirm the basic principle that
misjoinder or non-joinder may be raised at exception stage. However,
in
Smith v Conelect
1987 (3) SA 689
(W) at page 693,
the
following was set out, “…
I consider that on the
authority stated and on the wording of Rule 23(1) that the Rule has
not in any way curtailed the right of
a party in an appropriate case
to raise the question of non-joinder by way of exception,
provided, of course, as
was stated in Toffie's case, that
the exception mentions that ground
.
See again Anderson v Gordik Organisation (supra)”.
(My
underlining). Plaintiff’s Counsel argued that despite the
apparent general principle, it is only to be applied in “appropriate
cases” and then only if the allegations in the summons clearly
indicate that a necessary party has not been joined. In casu,
the
objection of non-joinder is not raised in the Notice of Objection,
and the fact of non-joinder is only fleetingly raised in
the
answering affidavit herein at the end of paragraph 47.2 where the
actual complaint is the plaintiff’s alleged failure
to fully
describe the businesses or commercial enterprises allegedly conducted
by the partnership. As a result, the issue did not
form the basis of
the Objection until belated being raised only in argument before me.
As a result, it cannot therefore succeed
and it is not necessary for
me to consider whether, even if it had, such objection was
sustainable. Even if I were wrong in this
regard, I am of the view
that it could not succeed. I refer to the judgment of the Supreme
Court of Appeal in
Judicial
Service Commission and Another v Cape Bar Council and Another
2013
(1) SA 170
(SCA)
,
where at paragraph [12], the test is restated as follows:
“
It
has by now become settled law that the joinder of a party is only
required as a matter of necessity — as opposed to a matter
of
convenience — if that party has a direct and substantial
interest which may be affected prejudicially by the judgment
of the
court in the proceedings concerned (see eg Bowring NO v
Vrededorp Properties CC and Another
2007
(5) SA 391
(SCA)
para
21). The mere fact that a party may have an interest in the outcome
of the litigation does not warrant a non-joinder plea.
The right of a
party to validly raise the objection that other parties should have
been joined to the proceedings, has thus been
held to be a limited
one.”
In
my view the proposed particulars, read with the relief sought, does
not directly affect any of those entities or businesses.
It is not
strictly necessary to join them. The point is therefore not
susceptible to a successful exception.
[17]
I therefore intend granting the plaintiff leave to amend. Before I do
so it is necessary that
I deal with the plaintiff’s Counsel’s
patent failure to comply with the Practice Directives of this Court
in respect
of her Heads of Argument and Practice Note arising out of
the following:
a)
The Heads of Argument ran to twenty-nine pages. The Practice
Directives of this Division applicable at the
time they were prepared
and delivered, read as follows:
“
9.4
The following practice direction is in force in regard to opposed
motions both in Pietermaritzburg and Durban:
9.4.1 The
applicant, excipient or plaintiff in opposed motions, exceptions and
provisional sentence proceedings shall not less than
ten clear court
days before the day of the hearing deliver concise heads of argument
(which shall be no longer than five pages
("the short heads"))
and not less than seven clear court days before the hearing the
respondent or defendant shall do
likewise. The heads should indicate
the issues, the essence of the party's contention on each point and
the authorities sought
to be relied upon. The parties may deliver
fuller, more comprehensive heads of argument provided these are
delivered simultaneously
with the short heads. Except in exceptional
circumstances, and on good cause shown, the parties will not be
permitted to deliver
additional heads of argument.
The heads of argument
shall be delivered under cover of a typed note indicating:
(a) the name and
number of the matter;
(b) the nature of the
relief sought.
(c) the issue or
issues that require determination.
(d) the incidence of
the onus of proof.
(e) a brief summary
(not more than 100 words) of the facts that are common cause or not
in dispute.
(f) whether any
material dispute of fact exists and list of such disputed facts.
(g) a list reflecting
those parts of the papers, in the opinion of counsel, are necessary
for the determination of the matter.
(h) a brief summary
(not more than 100 words) of the argument.
(i) a list of those
authorities to which particular reference will be made;
(j) in appropriate
cases the applicant, excipient or plaintiff must annex to the note a
chronology table, duly cross-referenced,
without argument.
(k) if the respondent
or defendant disputes the correctness of the chronology table in a
material respect, the respondent's or defendant's
heads of argument
must have annexed thereto the respondent's or defendant's version of
the chronology table.”
Twenty-nine pages are
grossly in excess of the five required pages. In as much as “long
heads” are permitted, if necessary
(and I do not accept that an
application for amendment such as this one needed long heads), no
“concise” heads were
delivered accompanying the only set
submitted.
b)
The Practice Note also bore no resemblance to that which is required
in this Court as set out above.
[18]
I noted in preparation that the plaintiff’s Practice Note,
where it did comply, stated
that the Court was required to read all
205 pages of the papers. I refer to this further below.
[19]
Counsel for the defendant delivered eight pages of Heads of Argument.
That also exceeds the Practice
Directive requirement, but some
discretion is permissible for minor infringements which I conclude
this was. Her Practice Note
complied with the directive’s
requirements and included indicating that the Court only needed to
read 63 of the pages as
identified by her.
[20]
Counsel for the plaintiff conceded, when questioned on these issues,
that she had not read the
Practice Directions for this Division prior
when preparing her Heads and Practice note. She persisted, however,
that the Court
needed to read all the papers. In my view reading all
205 pages in this matter was entirely unnecessary and a waste of
time. I
agree with the defendant’s counsel that the pages she
referred to were sufficient. It seems that once again legal
representatives
who appear for opposed matters need reminding that it
is essential, where required, to properly and sensibly consider the
question
of which pages actually need reading to determine the matter
and indicate accordingly.
[21]
Practice Directives constitute procedures carefully weighed and
prepared by each Division to
ensure its effective and smooth running.
It would surprise me to hear any Advocate say that they are not aware
of this, or that
they do not know that different Divisions have
different practice Directives. I am well aware of how intensive and
comprehensive
the advocacy pupillage programme for aspirant advocates
is, and that it covers such topics. Counsel for the plaintiff
conceded
she knew as much and apologised “
profusely”
and stated she had “
learned her lesson”
. Whilst I
accept her apology as being sincere and genuine, it is necessary in
my view to voice the displeasure of the Court in
a salutary manner,
which I do in the costs Order I make.
[22]
As to costs, plaintiff sought punitive costs and the defendant argues
that in the event of the
application being successful they should be
reserved for later decision by the trial Court or any other Court
dispensing with the
matter before then. Because I have decided the
matter effectively, as an exception, I cannot foresee any other Court
being in any
better position than me to make the costs decision
herein. The amendment was opposed, and the plaintiff was obliged to
approach
the Court for this relief. The cost should follow the result
save for those in relation to the plaintiff’s Counsel’s
costs in respect of her Heads of Argument and Practice Note for the
reasons I have set out above. The plaintiff is not entitled
to
punitive costs.
[23]
In the result I make the following Orders:
1. The
plaintiff is granted leave to amend her particulars of claim in
accordance with the plaintiff’s notice
of intention to amend
dated 16 May 2023.
2. The
plaintiff is directed to deliver her amended particulars of claim
within 5 days of the granting of this
Order.
3. The
defendant is directed to pay the costs of the application save for
two-thirds of the costs charged by the
plaintiff’s Counsel in
respect of her heads of argument, which two-thirds are disallowed.
PITMAN AJ
Date
reserved:
2 February 2024
Date
delivered:
8 February 2024
For
Applicant:
Adv
Adams
Instructed
by:
Birgit
Cronau Attorneys
email:bcronau@worldonline.co.za
c/o
Shepstone & Wylie
tel:
033 3551780
email:jmanuel@wulie.co.za
For
Respondents:
Adv
Vermaak - Hay
Instructed
by:
Langenhovern
Pistorius Modihapula Attorneys
REF:
S J Pistorius/lm/MAT10170/JP259
Email:
johan@langenhovens.co.za
c/o
Mason Incorporated
tel:
033 345 4230
email:
rob@masoninc.co.za