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2024
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[2024] ZAECMKHC 20
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Meyer v McGeer and Another (CA 67/2023) [2024] ZAECMKHC 20 (16 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: CA 67/2023
In
the matter between:
JACO
MEYER
Appellant
and
SEAN
McGEER
First
Respondent
COLLETTE
McGEER
Second
Respondent
JUDGMENT ON APPEAL
Govindjee J
Background
[1]
The respondents (‘the plaintiffs’)
instituted action against the appellant (‘the defendant’)
in the regional
court, Humansdorp, for breach of contract arising
from allegedly defective or incomplete building work. The defendant
pleaded that
the particulars of claim did not conform with the rules
of court, alternatively lacked clarity or were vague and embarrassing
to
the extent that the defendant was unable to plead.
[2]
Various pre-trial skirmishes between the
parties ensued. A pre-trial minute of a conference convened before a
regional magistrate
on 8 March 2022 reflects agreement, inter alia,
that the plea disclosed ‘a defence that is good in law’.
The matter
was certified trial ready and set down for trial on 22
September 2022. Notwithstanding the earlier agreement, the attorney
for
the plaintiffs proceeded to argue at trial that the plea amounted
to a bare denial, so as to be deemed an admission in terms of
Rule
17(3)
(a)
of the Rules Regulating the Conduct of the Proceedings of The
Magistrates’ Courts of South Africa (‘the Rules’).
No evidence was led and the magistrate postponed the matter to 8
November 2022 for judgment.
[3]
The defendant filed an application to amend
the plea on 29 September 2022, to which the plaintiffs objected. That
matter was argued
on 15 November 2022. The magistrate gave an
ex
tempore
judgment dismissing the
application, coupled with a punitive costs order. This was on the
basis that the application had not been
supported by an affidavit and
was therefore not properly before court. The defendant’s
attorney then sought a postponement
for an affidavit to be drafted.
That postponement was refused and the magistrate proceeded to give an
ex tempore
judgment on the merits of the matter, granting judgment in favour of
the plaintiffs.
The appeal
[4]
The appeal is based, in essence, on the
following grounds:
a)
The application to amend the plea ought to
have been allowed;
b)
The application to postpone the matter in
order to permit a fresh application to amend ought to have been
permitted;
c)
The magistrate erred in her treatment of
the defendant’s extant plea;
d)
The magistrate erred in granting judgment
in favour of the plaintiffs absent any evidence as to the damages
suffered.
[5]
The appeal was unopposed, the plaintiffs
filing a notice indicating their intention to abide by this court’s
decision. The
matter may be determined based on the first and second
grounds of appeal.
Analysis
[6]
Amendments
may be considered in the context of the constitutional right to have
access to courts, and the resolution of disputes
following a fair
public hearing.
[1]
The primary
object of permitting an amendment to pleadings is to obtain a proper
ventilation of the dispute between the parties,
to determine the real
issues between them.
[7]
Rule 55A regulates amendment of pleadings
in the magistrates’ courts:
‘
(1)
(a)
Any
party desiring to amend a pleading or document other than an
affidavit, filed in connection with any proceedings, shall notify
all
other parties of his or her intention to amend and shall furnish the
particulars of the amendment …
(4) If an objection which
complies with subrule (3) is delivered within the period referred to
in subrule (2), the party wishing
to amend may, within 10 days, lodge
an application for leave to amend …
(9) A party giving notice
of amendment in terms of subrule (1) shall, unless the court
otherwise directs, be liable for the costs
thereby occasioned to any
other party.
(10) The court may,
notwithstanding anything to the contrary in this rule, at any stage
before judgment, grant leave to amend any
pleading or document on
such other terms as to costs or other matters as it deems fit.’
[8]
Subrule (4) must be read together with rule
55(5)
(a)
(i)
and (ii):
‘
(4)
(a)
(i)
Interlocutory and other
applications incidental to pending proceedings must be brought
on
notice corresponding substantially with Form 1C of Annexure 1,
indicating a date assigned by a registrar or clerk of the court
or as
directed by a magistrate before whom the matter is to be heard.
(ii)
The notice must be supported by affidavits if facts need to be placed
before the
court …’
[9]
Unlike
High Court practice, and having regard to Form 1C, which refers to
the so-called ‘short form’ notice of motion,
it is
apparent that the word ‘notice’ in Rule 55(4) means
‘notice of motion’. Substantial compliance with
Form 1C
is expected, with such variation as circumstances require.
[2]
It is equally apparent that the notice must indicate a date on which
the matter is to be heard. That date must be assigned by a
registrar
or clerk of the court or be directed by a magistrate before whom the
matter is to be heard.
[3]
[10]
In this instance the notice of intention to
amend in terms of Rule 55A was not brought on notice of motion in
substantial compliance
with Form 1C, irrespective of whether
affidavits were necessary to support the application. This amounted
to non-compliance with
a peremptory requirement, so that the
application was not properly before the court
a
quo
. It is accordingly unnecessary to
delve into the basis upon which the court
a
quo
decided to dismiss the application
for amendment. Considering the defendant’s non-compliance with
the rules, there is also
no basis for this court to interfere with
the magistrate’s decision as to costs in refusing the
application to amend the
plea.
[11]
Having made its ruling in this respect, the
court
a quo
was faced, in essence, with an application for postponement. The
record reflects that the defendant’s attorney specifically
requested an opportunity to place the proposed amended plea ‘properly
before the court … in the interest of the defendant’.
[12]
The
learned magistrate gave short shrift to this application. In doing
so, the magistrate was seemingly oblivious to the provisions
of rule
55A(10), and the possibility of a party intending to effect an
amendment to a pleading doing so orally,
in
facie curiae
.
[4]
That rule must be read with s 111 of the Magistrates’ Courts
Act, 1944:
[5]
‘
(1)
In any civil proceedings, the court may, at any time before judgment,
amend any summons or other document forming part of the
record:
Provided that no amendment shall be made by which any party other
than the party applying for such amendment may (notwithstanding
adjournment) be prejudiced in the conduct of his action or defence.
(2) In civil proceedings
an amendment may be made upon such terms as to costs and otherwise as
the court may judge reasonable.’
[13]
While it has been held that the discretion
in question is ‘wide and generous’, it is nonetheless a
discretion to be
exercised judicially, bearing in mind that the power
to postpone and grant punitive costs would likely ameliorate any
prejudice
to be suffered by the plaintiffs. The court
a
quo
erred in failing to consider such
dimensions and in its summary dismissal of the defendant’s
further application.
[14]
The usual position in respect of
applications for postponement to amend pleadings has evolved to
ensure the proper ventilation of
disputes, bearing in mind the
constitutional right to a fair public hearing. That being the case,
the appeal must be upheld to
afford the defendant the opportunity to
bring a further application for amendment to its plea. Considering
the time that has elapsed,
it is appropriate to set a timeframe for
this application.
[15]
The defendant has achieved substantial
success in this appeal and is therefore entitled to his costs of the
appeal.
Order
[16]
The following order is issued:
1.
The appeal is upheld with costs.
2.
The judgment and order of the regional
court, Humansdorp (case no: EC HMD RC 11/2020C) dated 15 November
2022 is set aside and substituted
as follows:
2.1
The defendant is granted leave to amend his
plea in accordance with rule 55A of the Rules Regulating the Conduct
of the Proceedings
of The Magistrates’ Courts of South Africa.
2.2
The defendant is directed to notify the
plaintiffs of his intention to amend and shall furnish the
particulars of the amendment,
in accordance with rule 55A(1)
(a)
,
within ten days of the date of this order.
2.3
There is no order as to costs.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
I agree
ZM NHLANGULELA
ACTING JUDGE PRESIDENT
OF THE HIGH COURT
Heard:
16
February 2024
Delivered:
16
February 2024
Appearances:
For
the Appellant:
Adv
PS Du Toit
Oasim
Chambers, Gqeberha
Instructed
by:
Britz
Attorneys
Appellant’s
Attorneys
1
Mimosa Street
Jeffrey’s
Bay
Email:
britzattorneys@truewan.co.za
C/o:
Netteltons
Attorneys
118
High Street
Makhanda
Email:
liza@netteltons.co.za
For
the Respondent:
No
Appearance
[1]
S
34 of the Constitution of the Republic of South Africa, 1996.
[2]
See
DE van Loggerenberg
Jones
and Buckle: Civil Practice of the Magistrates’ Courts in South
Africa
(Vol
II: The Rules) (10
th
Ed) (RS 32, 2022) Rule-p55-30.
[3]
Ibid.
[4]
Van
Loggerenberg above n 2 (RS 18, 2018) Rule–p55A–2.
[5]
Act
32 of 1944.