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2023
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[2023] ZAFSHC 38
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Bruwer v Free State Curtain Parlour CC (A39/2022) [2023] ZAFSHC 38 (17 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number
: A39/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SONJA
BRUWER Appellant
and
FREE
STATE CURTAIN PARLOUR CC Respondent
CORAM:
C REINDERS, J
et
N KHOOE, AJ
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
21
NOVEMBER 2022
DELIVERED
ON:
17 FEBRUARY 2023
[1]
The appellant was the defendant in the trial court with the
respondent as plaintiff. It is convenient to refer
to the parties as
cited in the court a quo.
[2]
The plaintiff instituted an action in the Magistrate’s Court
against the defendant based on various
verbal agreements which boils
down thereto that defendant purchased curtains from the plaintiff in
the amount of R 175 017.00.
It is averred in paragraph 6 of the
particulars of claim that plaintiff duly complied with the terms of
the agreement(
sic)
in that the curtains were manufactured and
delivered to the defendant. It is further alleged that defendant has
paid an amount
of R 130 017.00 and that an amount of R 45 000.00
remains outstanding. Judgment is therefore sought against defendant
for payment of the aforesaid amount together with interest
a
tempora morae
and cost of suit.
[3]
Defendant filed a plea which included a special plea of
lis
pendens
. More relevant for purposes of the appeal defendant
pleaded in respect of paragraph 6 of the particulars of claim: “Safe
(
sic)
to specifically plead that any and all work were done by
the Plaintiff, was not done in a workman satisfactory manner, the
remainder
of this paragraph is denied and is the Plaintiff put to the
proof thereof.”
[4]
A request for further particulars was filed wherein plaintiff
requested the following:
“
1.
AD PARAGRAPH 6
THEREOF
1.1
Precisely which work was done by the Plaintiff?
1.2
On which date was the aforementioned work done by the Plaintiff?
1.3
Was the aforementioned work done by Plaintiff in terms of an
agreement?
1.4
Was the aforementioned agreement in writing or verbal. If in writing
a copy thereof is requested
and if, verbal the following particulars
of such verbal agreement:
1.4.1
Where and on what date was the verbal agreement entered into?
1.4.2
Who acted on behalf of Plaintiff when the agreement was entered into?
1.4.3
Who acted on behalf of Defendant when the agreement was entered into?
1.4.4
What were the terms of the agreement?
1.4.5
What was the agreed contract price?
1.5
Precisely which work was not done in a workman satisfactory manner.
Full details are required.”
[5]
The defendant did not respond to the request for further particulars.
Plaintiff’s attorney of record
through a letter dated 18
December 2020 requested an answer but to no avail. This prompted
plaintiff to apply for an order to compel
delivery of an answer
resulting in the defendant serving a reply stating that the sought
particulars are not necessary for purposes
of preparing for trial
alternatively being a matter of evidence.
[6]
Plaintiff not being satisfied with this response filed an application
to compel defendant to adequately reply.
When this application was to
be heard defendant’s legal representative appeared at court and
indicated that only a point
of law would be argued where after the
matter was postponed to the opposed motion court roll.
[7]
The defendant filed a notice of intention to amend her plea.
7.1 The plea
suggests the defendant wishes to amend her plea by deleting her
original denial that agreements have been
entered into and replacing
same with the following:
“
5.
AD PARAGRAPH 5
THEREOF:
5.1 The
contents hereof are denied and the Plaintiff is put to the proof
thereof.
5.2 In
amplification of such denial the Defendant pleads that the express
alternatively tacit further alternatively
implied terms of the
agreements entered into with the entity trading as Free State Curtain
Parlour and Décor were as follows:
5.2.1 The entity
trading as Free State Curtain Parlour and Décor will procure,
deliver and install the items listed
in Annexures “P1”
and “P2” at the premises of 101 Waverley Weg, Waverley,
Bloemfontein;
5.2.2 The entity
trading as Free State Curtain Parlour and Décor will carry out
all services in a proper and workmanlike
manner;
5.2.3 The
Defendant shall pay a deposit of 60% of the quoted amount;
5.2.3 The
Defendant shall pay the balance upon delivery and installation of the
goods and services to be rendered.”
7.2 In
respect of paragraph 6 of the plea, the plea is to be amended to now
read that the content thereof is denied
and plaintiff put to the
proof thereof. This prompted a notice of objection complaining
thereof that defendant attempts to withdraw
the admission in the
previous plea that work was done by the plaintiff with the defence
that the work was not done “in a
workman satisfactory manner”,
whilst no explanation is furnished why the admission is withdrawn.
This prompted a formal application
by defendant to amend.
[8]
The trial court hereafter made an order that the
application to compel defendant to file an adequate response to
the
request for further particulars is postponed and the application for
an amendment and the aforementioned application to compel
is to be
argued together. However, when the matter was to be heard on 13 May
2021, an order was granted compelling the defendant
to deliver an
adequate answer to the plaintiff’s request for further
particulars dated 7 December 2020 within ten days of
the court order
being served on the defendant.
This
prompted defendant to file answers to the request for further
particulars as follows:
“
2.
AD PARAGRAPHS 1.1 – 1.4 THEREOF:
The Defendant abandons
paragraph 6 of the Plea, as it presently stands, and aligns herself
with the contents of paragraph 6 of her
Notice of Intention to Amend
her Plea dated 19 March 2021.
3.
AD PARAGRAPHS 1.4.1 – 1.4.5 THEREOF:
The contents hereof are
fully stated in paragraphs 4.2, 5.1 and 5.2 of the Defendant’s
Notice of Intention to Amend her Plea
dated 19 March 2021. It is
respectfully requested that the contents thereof be incorporated
herein.
4.
AD PARAGRAPH 2 THEREOF:
The Defendant does not
intend on persisting with this part of her defence and abandons same.
Furthermore, the Defendant aligns herself
with the contents of her
Notice of Intention to Amend her Plea dated 19 March 2021.”
[9]
The magistrate dismissed the application to amend and granted the
application to strike out the plea for failure
to supply an adequate
answer to the request.
[10]
An appeal was directed against the last order of the magistrate
(dated 7 February 2022). No other orders were appealed
against. It
was submitted amongst others that the magistrate was misdirected by
having regard to a without prejudice offer to settle
that was made
and finding that the reasons for the amendment were flimsy.
.
[11]
On appeal counsel appearing on behalf of plaintiff strongly argued
that no appeal was filed against the magistrate’s
order dated
13 May 2021 compelling defendant to deliver an adequate answer to the
request. As that order stood, the magistrate
could not revisit the
aforementioned order as the magistrate was
functus officio
and
was therefore only called upon to determine whether the defendant had
complied with its obligations to respond sufficiently
to plaintiff’s
request for further particulars. I find the aforementioned argument
convincing. In my view the order of 13
May 2021 was still in full
force and effect when the defendant attempted to amend her plea. This
therefore meant that she had to
comply with that order or ask that it
be rescinded to enable her to amend her plea. This did not happen and
as she did not comply
with the aforementioned order, she could not
amend her plea and in that manner circumvent the order. I have no
doubt that defendant
did not comply with the order and that the order
to strike out the plea was the correct order. In any event, the
plaintiff was
entitled to request the further particulars to prepare
for trial. Even if the application to amend defendant’s plea
was granted,
the issues raised and in particular whether the services
rendered was done in a proper and workman like fashion, would have
remained
alive.
[12]
I am therefore not convinced that the magistrate erred in the
conclusion and orders that were made safe that I would
have expected
a separate order granting judgment in favour of the plaintiff for
payment of the R 45 000-00 as well as interest
and costs. This
was not however addressed on appeal wherefore I am not of the view
that the orders should be amended by this court
and it is left to the
plaintiff to approach the magistrate in this respect if need be.
[13]
It follows that the appeal is unsuccessful. There is no reason why
cost should not follow suit and the following order
is made:
The appeal is dismissed
with costs.
C.
REINDERS, J
I
concur.
N.
KHOOE, AJ
On
behalf of appellant: Adv.
MDJ Steenkamp
Instructed
by: Jacobs
Fourie Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv.
WA van Aswegen
Instructed
by: Symington
De Kok Attorneys
BLOEMFONTEIN