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[2024] ZAFSHC 87
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Free State Wheels (Pty) Ltd v WRC Rentals (Pty) Ltd and Others (2014/2023) [2024] ZAFSHC 87 (14 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
no.: 2014/2023
In
the matter between:
FREE
STATE WHEELS (PTY) LTD
Applicant
and
WRC
RENTALS (PTY) LTD
1
st
Respondent
MARNUS
NICO COETZEE
2
nd
Respondent
DANIËL
BENJAMIN GROBLER
3
rd
Respondent
AXE
HOLDINGS (PTY)
LTD
4th
Respondent
WRC
2020 (PTY) LTD
5
th
Respondent
LAYSAN
LIMITED
6
th
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
14 SEPTEMBER 2023
DELIVERED
ON:
14
MARCH 2024
[1]
This is an application by the applicant (the plaintiff in the main
action) to amend
its Particulars of Claim, which application is being
opposed by the respondents (the defendants in the main action).
[2]
I will refer to the parties as in the main action.
Background:
[3]
In response to the plaintiff’s Particulars of Claim, the
defendants filed a
Notice in terms of Rule 23(1) on the basis that
the Particulars of Claim is vague and embarrassing.
[4]
The plaintiff consequently filed a Notice of Intention to Amend its
Particulars of
Claim, whereupon the defendants filed a Notice of
Objection to the proposed amendment in terms of Rule 28(3).
[5]
The opposition to the proposed amendment is based on the premises
that the plaintiff’s
Particulars of Claim in its proposed
amended form will remain vague and embarrassing.
[6]
The plaintiff subsequently filed an application in the form of a
Notice of Motion,
without an affidavit in support thereof, in terms
whereof it is seeking leave from the court to amend its Particulars
of Claim
in accordance with its Notice of Intention to Amend.
It is the said application which the defendants are opposing.
The
first to sixth defendants’ Notice to remove cause of complaint
in terms of Rule 23(1):
[7]
The said Notice raises numerous grounds on which the defendants rely
for their stance
that the Particulars of Claim is vague and
embarrassing. For reasons, which will become evident, I will,
at this stage, only
deal with some of the grounds:
1.
In the summons the plaintiff cited and joined six defendants to the
action.
The plaintiff’s claim is based on contractual
grounds. It incorporates,
inter alia,
a Sale Agreement,
an Addendum to the Sale Agreement and a Repurchase of Shares
Agreement. Throughout the Particulars of Claim,
the plaintiff
referred to “
the defendant
” and failed to
differentiate between the respective defendants. The defendants
consequently raise the following complaints:
“
1.3
The first to sixth defendants are unable to determine from the
allegations as presently pleaded in the
plaintiff’s summons,
which of the first to sixth defendants, if any, are referred to as
‘
the defendant
’ in each instance… The
first to sixth defendants are further unable to determine from the
allegations as presently
pleaded in the plaintiff’s summons,
whether the reference to ‘
the defendant
’ in each
instance … is alleged to be a reference to the same defendant,
and if so, which of the first to sixth defendants.”
2.
The defendants also raise the complaint that some of the annexures to
the Particulars of Claim, being
annexures to the relevant contracts,
are illegible, with the result that they are unable to determine and
plead to the contents
thereof.
3.
In the preamble to the plaintiff’s prayers in the Particulars
of Claim, the plaintiff pleads as
follows:
“
WHEREFORE THE
PLAINTIFF CLAIMS FROM THE FIRST DEFENDANT:
The
plaintiff prays against the first-, second- and third defendants,
jointly and severally, payment by the one the other to be
absolved:
”
The
defendants consequently raise the following complaint:
“
2.2
The first to sixth defendants are unable to determine from the
allegations as presently pleaded in the plaintiff’s
summons,
whether the plaintiff claims payment from the first defendant only,
or whether the plaintiff claims payment from the first,
second and
third defendants, jointly and severally.”
4.
In prayer 2 of the Particulars of Claim the following relief is
claimed:
“
Interest on this
amount, calculated at the applicable mora interest rate
a tempore
morae
…”
The aforesaid prayer
furthermore contains a note as to the applicable interest rate in
terms of the original contracts which constitute,
on face value
thereof, a note by the draftsman of the Particulars of Claim which
was clearly not intended to form part of the said
pleading,
apparently addressed to the person who instructed him/her to draft
the Particulars of Claim. The defendants raise
the complaint
that they are unable to determine whether they are expected to plead
to the said note and furthermore raise the following
complaint:
“
3.5
The first to sixth defendants are unable to determine from the
allegations as presently pleaded in the plaintiff’s
summons,
what the plaintiff alleges to be the agreed rate of interest, and/or
what the rate of interest is that the plaintiff purports
to claim in
the summons.”
The
plaintiff`s Notice of Intention to Amend:
[8]
In the plaintiff`s Notice of Intention to Amend it addresses the
aforesaid complaints
as follows:
1.
It differentiates between the respective defendants throughout the
Particulars of Claim.
2.
It proposes to add the following as paragraph 7.7 of the Particulars
of Claim:
“
7.7
All appendices
to this document, added as true copies of the
originals, are the best and most clearly legible copies the plaintiff
has available.
”
3.
It addresses the preamble to the prayers contained in the Particulars
of Claim to read as follows in
its proposed amended form:
“
WHEREFORE THE
PLAINTIFF CLAIMS against the first-, second- and third defendants,
jointly and severally, payment by the one the other
to be absolved”.
4.
It proposes to remove the note that inadvertently appears in prayer 2
and to amend prayer 2 to read as
follows:
“
Interest on
this amount, calculated at
a rate as set out in the Sale
Agreement of 27 July 2020 (and as pleaded in para 9.2.3 of the
Particulars of Claim) from date of
Service of Summons until date of
final payment, alternatively such interest as calculated at the
applicable mora interest rate
a tempore morae, from 11 January 2023
until final date of payment.”
The defendants`
objection in terms of Rule 28(3) to the proposed amendments:
[9]
In its objection the defendants raised the following aspects:
1. The
defendants seem to have no squabbles with the proposed amendments
which differentiate between the respective
defendants.
2.
The annexures and documents relied on by the plaintiff “
as
part of its cause of action
as presently pleaded, and in its
proposed amended form
”, remain illegible and the defendants
remain unable to properly plead to it.
3.
The defendants appear to have no objection to the proposed amendment
of the preamble to the prayers contained
in the Particulars of Claim.
4.
With regard to prayer 2 in respect of the interest, the defendants
persist with the following complaints:
“
2.2.1
The grounds raised in paragraph 3.2 of the first to sixth defendants’
notice are incorporated herein
by reference as if specifically
restated
mutatis mutandis
. The first to sixth defendants
remain unable to properly (or at all) plead to the plaintiff’s
allegations in support of its
claim and prayer for interest in its
proposed amended form.
2.2.2
The first to sixth defendants remain unable to determine from the
allegations as presently pleaded
in the plaintiff`s summons, or in
its proposed amended from, what the plaintiff alleges to be the
agreed rate of interest, and/or
what the rate of interest is that the
plaintiff purports to claim.
2.2.3
The grounds raised in paragraphs 6, 10.5 and 10.6 of the first to
sixth respondents’ notice
are incorporated herein by reference
as if specifically restated
mutatis mutandis
. The first to
sixth defendants remain unable to determine from the allegations as
presently pleaded in the plaintiff`s summons,
or in its proposed
amended form, what the plaintiff alleges to be the agreed rate of
interest, and/or what the rate of interest
is that the plaintiff
purports to claim from the first to sixth defendants and/or as
against the second and third defendants, and/or
how the amounts
claimed as interest, if any, are calculated.
2.2.4
The ground raised in paragraph 12.3 of the first to sixth- defendants
notice are incorporated
herein by reference as if specifically
restated
mutatis mutandis
. The first to sixth defendants
remain unable to determine from the allegations in the plaintiff`s
summons as presently pleaded,
or in its proposed amended form on what
basis Appendix F reflects amounts calculated as interest at the rate
reflected in each
instance, and/or how the amounts claimed or
reflected as interest in each instance, are calculated.”
The nature and form
of the application for leave to amend:
[10]
As indicated earlier, the plaintiffs filed a Notice of Intention to
Amend without a supporting
affidavit. Mr Coertzen, who appeared on
behalf of the defendants, assisted by Mr Bester, submitted that the
plaintiff ought to
have brought a substantive application in the form
of a Notice of Motion supported by an affidavit wherein it explains
its proposed
amendments and the reasons and basis therefore. Mr
Coertzen submitted that for this reason alone the application ought
to be dismissed.
[11]
Mr Grobler, who appeared on behalf of the plaintiff, submitted that
the said application is an
interlocutory application and as such need
not be accompanied by a supporting affidavit.
[12]
In support of his argument, Mr Coertzen relied on the following
dicta
in the judgment of a Full Court in the matter of
African
Amity NPC and Others v Minister of Home Affairs and Others
(51735/2021) [2023] ZAGPPHC 503 (29 June 2023):
“
[26]
The authorities state that there is no strict compliance required
with Rule 28(4) in terms of lodging an application for leave
to
amend. Whether it is necessary for the applicant to lodge an
application in terms of Rule 28(4) is contingent on the circumstances
of the matter and the subject matter of the amendment before the
court. Therefore, failure to lodge an application for leave to
amend
will not always be fatal, depending on the circumstances of a
particular case.
[27]
In the case of
De Kock v Middelhoven
the court said:
"...In
my view, the new rule 28(4) postulates
two
procedures by which
a
party
seeking an amendment
may
approach
and
follow the court for leave to amend. It
is
of
capital importance to point out in the first place that the choice of
the procedure to seek such leave
is,
by
using the word 'may', left entirely to the discretion of
such
a
party.
The first procedure that
a
party
pursuing an amendment may use
is
oral.
By this method, all that such
a
party
has
to
do after receiving the notice of objection in terms of rule 28(3) is
to set
such
a matter down for hearing and, on the date of hearing, simply walk
into court and orally apply for leave to amend. The second
procedure
of applying for leave to amend is to 'lodge an application for leave
to amend'
as
enjoined
by the provisions of rule 28(4). What the new rule 28(4) has done is
to abolish the regimented procedure of the old rule
28(4) which
compelled a party seeking an amendment to bring a substantive
application for leave to amend. The new rule 28(4) does
not compel a
party seeking an amendment to deliver an application for leave to
amend.
As
I
pointed out earlier, it is entirely the decision of the party
pursuing leave to amend whether to apply for leave to amend orally
or
to lodge an application for leave to amend."
[28]
Booysen
and
others
v
Followers
of
Christ
Church
of South
Africa
and Namibia and others
case
suggests that although the Rule does not make it peremptory to bring
a substantive application under Rule 28(4), it is not
an either or
situation as the situation of each case may dictate which course is
dictated by the circumstances. The court said:
"[18]...
First and foremost, I fully agree that the relevant Rule does not
signify
a
peremptory
provision but suggests procedural flexibility. However,
I
am not of the view that it
was
the
intention of the legislator, when making the provisions of Rule 28
(4) discretionary, to afford a litigant an absolute or sole
discretion to be exercised on an indiscriminate
basis.
[19}...
It is quffe surprising that the Middelhoven decision does not put any
limit to that power. The exercise of the discretion
afforded should
be measured against the nature of the amendment and the subject
matter of the case in question. I firmly believe
that the
circumstances of a particular case will determine which course of
action to follow. It is further my view that if
a
party
chooses
the
wrong
procedure
out
of the
two
permissible courses of action, it may do
so
at
his or her own peril and runs the risk of an order being granted
against him or her.
[20]
… the procedure to be followed
is
determined
on a case-by-case
basis,
depending on the particular
circumstances."
[29] The
Booysen case is more apt as opposed to the Middelhoven case which
makes it superfluous to have Rule 28 if parties
are at liberty to
walk into court and move a proposed amendment which is opposed
without affording the court the benefit of appreciating
the essence
of t e proposed amendment and weigh its gravamen and the prejudice
that it may have on the opposite party. In this
case the issues are
profound and touch on constitutional rights. Furthermore, one of the
grounds of opposition to the intended
amendment is that the
amendment, if granted, would itself be excipiable. It is our view
that this is one of the cases where a substantive
application ought
to have been brought.”
[13]
Rule 28(4) determines as follows:
“
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.”
[14]
In
Erasmus, Superior Court Practice
, DE van
Loggerenberg, Jutastat, Revised Service 22 of 2023, at D1 Rule 28-2,
the following is stated with reference to the abovementioned
judgment
of
De Kock v Middelhoven:
“
The
court held that rule 24(8) postulated two procedures by which a
party seeking an amendment may approach a court for leave
to amend.
One was oral: by this method, all that the applicant had to do after
receiving the notice of objection was to set such
a matter down for
hearing and on the date of hearing simply walk into court and orally
apply for leave to amend. The other was
to lodge a formal application
for leave to amend as enjoined by the provisions of rule 28(4). It
was left entirely to the discretion
of the applicant to decide with
which course to proceed. Accordingly, the matter was properly before
the court.
Rule 1 was substituted
with effect from 22 November 2019, and now includes a definition
of ‘application’, viz ‘a
proceeding commenced by
notice of motion or other forms of applications provided for by rule
6’. Rule 6(11) and (14) makes
specific provision for
interlocutory and other applications incidental to other proceedings.
It is submitted that in the light of the aforegoing an application to
amend as contemplated in rule 28(4) should comply with the
relevant
provisions of rule 6 and cannot be made orally from the bar. To this
extent the decision in the
De
Kock
case should therefore not
be followed. (My emphasis)
At D1 Rule 28-4 the
learned author further states as follows with regard to Rule 28(4):
“
Subrule
(4): ‘Lodge an application for leave to amend.’
An
application under this subrule is
an
interlocutory application as contemplated in rule 6(11) and need not
be brought on notice of motion supported by affidavit.
However,
it is well established that an application for an amendment seeking
to withdraw an admission must be supported by
affidavit.”
See also
Swartz
v Van der Walt t/a Sentraten
1998
(1) SA 53
(W) at 56 I – J & 57 G – J.
[15]
In this instance there is no admission which the plaintiff is seeking
to withdraw.
[16]
In the circumstances I agree with the submission of Mr Grobler that
there was no need to have
filed a substantive application as meant in
Rule 6(1). An interlocutory application as meant in terms of Rule
6(11) suffices.
[17]
The point raised on behalf of the defendants can therefore not be
upheld.
Applicable
principles
re
amendments and
exceptions:
[18]
A court hearing an application for an amendment has a discretion
whether or not to grant it, which discretion
must be exercised
judicially. The primary object of allowing an amendment is to obtain
a proper ventilation of the disputes between
parties, to determine
the real issues between them, so that justice may be done. The
practical rule is that an amendment will not
be allowed if the
application to amend is made
mala
fide
or
if the amendment will cause the other party such prejudice or
injustice as cannot be cured by an order for costs and, where
appropriate, a postponement. See
Macsteel
Tube and Pipe, a division of Macsteel Service Centres SA (Pty) Ltd v
Vowles Properties (Pty) Ltd
(680/2020)
[2021] ZASCA 178 (17 December 2021) at para [24].
[19]
The onus is on the party seeking an amendment to establish that the
other party will not be prejudiced by
it. See
Krischke
v Road Accident Fund
2004
(4) SA 358 (W) at 363 B.
[20]
An amendment should not be refused merely in order to punish the
applicant for some mistake or neglect on
his part; his punishment is
in his being mulcted in the wasted costs. See
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd
1967
(3) SA 632 (D) at 640 H.
[21]
An amendment ought not to be allowed when the amendment itself is
excipiable or where its introduction into
the pleading would render
such pleading excipiable. In
YB
v SB and Others NNO
the
court held as follows at paras [11]- [12]:
“
[11] …
It
is accepted law that a court will not allow amendments where their
effect would render such a pleading excipiable or where it
does not
cure an excipiable pleading. (Erasmus
Superior
Court Practice
service 42, 2012
B1 – 183). In
Crawford-Brunt
v Kavnat and Another
1967 (4)
SA 308
(C) at 310G Tebbut AJ (as he then was) held, however,
that,
'If the pleading would appear
to be possibly open to exception or even if the court is of opinion
that the question of whether or
not the pleading is excipiable is
arguable, it would seem to be the more correct course to allow the
amendment.
' (My emphasis)
[12]
Considering the legal principles as hereinbefore set out, Ms
Gassner
has in my view correctly submitted that insofar as the trustees'
objections to the amendments in the present matter are directed
at
the alleged defects in the particulars of claim in relation to the
trust assets, which they contend render them bad in law,
the
following principles governing exceptions are relevant in
assessing the grounds of objection to the amendment sought:
•
The
court must accept as correct the allegations contained in the
particulars of claim, incorporating the proposed amendment,
and determine
whether those allegations are capable of
supporting a cause of action
in respect of the assets of the Ruby
Trust (
Stewart and Another v Botha and Another
[2008] ZASCA 84
;
2008 (6)
SA 310
(SCA) para 4).
•
The
defect in the pleadings must appear ex facie the pleadings and no
extraneous facts may be adduced to show that the pleading
is
excipiable (
Barnard v Barnard
2000 (3) SA 741
(C) para
10).
•
It
is for the excipient
(ie the trustees)
to satisfy the court
that the conclusion of law pleaded by the plaintiff cannot be
supported by any reasonable interpretation of
the particulars of
claim. (My emphasis)
[22]
In the abovementioned of
Crawford - Brunt
v Kavnat and Another
1967
(4) SA 308
(C) at 310 D – 311 A the court held as follows:
“
It
remains, therefore, to consider whether the new particulars of claim
which applicant wishes to substitute are excipiable
and whether
applicant's refusal to supply the particulars requested thereto has
resulted in a situation where the amendment sought
by her should be
refused on that ground. In
Cross v Ferreira
,
1950 (3) SA
443
(C), it was laid down that, save in exceptional cases where the
balance of convenience or some such reason might render another
course desirable, the Court will not allow an amendment to a
pleading if the pleading as amended would be excipiable. It seems
clear, however, both from a reading of this case and of subsequent
cases in which
Cross v Ferreira
has been referred
to, that
such an amendment will only be refused on the ground that
the amended pleading would be excipiable if it is clear that the
amendment
would obviously render the pleading excipiable. The
operative words in the judgment in
Cross v Ferreira
at
p. 449 are 'would be excipiable' and not 'may be excipiable'. If the
pleading would appear to be possibly open to exception
or even if the
Court is of opinion that the question of whether or not the pleading
is excipiable is arguable, it would seem to
be the more correct
course to allow the amendment. I am supported in this view by
the decision in
Pieters v Pitchers
,
1959
(3) SA 834
(T), where application by a plaintiff in an action for the
amendment of a declaration was opposed by the defendant on the ground
that the amendment would render the declaration excipiable. The Court
held that as the defendant's contention was at least an arguable
matter, the amendment should be granted,
the Court not
being in a position, nor called upon, to decide the question of the
exception at that stage. The Court held that,
if an exception could
be lodged, it could be done in proper form and before the proper
Court in due course.
This approach is also, in my view,
consistent with the general principle that amendments should normally
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
(see
Moolman v Estate Moolman and Another
,
1927 CPD
27
;
Cross v Ferreira, supra
at p. 447, and cases
there collected;
Myers v Abramson
,
1951 (3) SA 438
(C) at
pp. 446 to 450;
Heeriah and Others v Ramkisson
,
1955 (3)
SA 219
(N) at pp. 221 - 222).” (My emphasis)
Merits
of the application to amend:
[23]
The two proposed amendments in respect of the differentiation between
the respective defendants,
on the one hand, and the amendment of the
preamble to the prayers, on the other hand, are uncontested, although
the defendants`
case is that the Particulars of Claim remain
excipiable despite the two proposed amendments. If it is to be
accepted, for the sake
of argument, that the Particulars of Claim is
presently excipiable, the said two amendments contribute hugely to
clarify the pleading.
The two amendments definitely not render the
pleading vague and embarrassing. There can consequently be no valid
objection to the
mentioned two amendments.
[24]
The proposed amendment in respect of the illegible annexures by the
insertion of an explanatory
paragraph is being opposed on the basis
that it does not remove the complaint, since the relevant annexures
remain illegible and
therefore the Particulars of Claim remain
excipiable.
[25]
Rule 18(6) determines as follows:
“
A
party who in his or her pleading relies upon a contract shall state
whether the contract is written or oral and when, where and
by whom
it was concluded, and if the contract is written a true copy thereof
or of the part relied on in the pleading shall be
annexed to the
pleading.”
[26]
In
Absa Bank Ltd v Zalvest
Twenty (Pty) Ltd
2014 (2)
SA 119
(WCC) the plaintiff and the defendant entered into a written
mortgage loan agreement. The defendant defaulted and the plaintiff
sought judgment against it. In its particulars of claim, the
plaintiff alleged that it was unable to annex a copy of the loan
agreement to its pleadings since the document had been destroyed in a
fire and no other copy of it could be found. The defendant
excepted
to the particulars of claim on the basis that rule 18(6) had not been
complied with. The defendant contended that the
import of rule 18(6)
was that the inability of the plaintiff to annex a copy of the loan
agreement to its particulars of claim
resulted in it having no cause
of action. In dismissing the exception, Traverso DJP and Rogers
J,
inter alia
,
stated (
per
Rogers
J) as follows:
[9]
The rules of court exist in order to ensure fair play
and good order in the conduct of litigation. The rules do
not lay
down the substantive legal requirements for a cause of action,
nor in general are they concerned with the substantive
law of
evidence. The substantive law is to be found elsewhere, mainly in
legislation and the common law.
There is no rule of substantive
law to the effect that a party to a written contract is precluded
from enforcing it merely because
the contract has been destroyed or
lost.
Even where a contract is required by law to be in
writing (eg a contract for the sale of land or a suretyship), what
the substantive
law requires is that a written contract in accordance
with the prescribed formalities should have been executed; the law
does not
say that the contract ceases to be of effect if it is
destroyed or lost.
[10]
In regard to the substantive law of evidence, the original signed
contract is the best evidence that a valid contract
was concluded,
and the general rule is thus that the original must be adduced. But
there are exceptions to this rule, one of which
is where the original
has been destroyed or cannot be found despite a diligent search.
In
such a case the litigant who relies on the contract can adduce
secondary evidence of its conclusion and terms
(see
Singh
v Govender Brothers Construction
1986 (3) SA 613
(N) at 616J
– 617D). There are in modern law no degrees of secondary
evidence (ie one does not have to adduce the 'best'
secondary
evidence). While a photocopy of the lost original might be better
evidence than oral evidence regarding the conclusion
and terms of the
contract, both forms of evidence are admissible once the litigant is
excused from producing the original.
In
Transnet Ltd v Newlyn
Investments (Pty) Ltd
2011 (5) SA 543
(SCA) a defendant, in
opposing its eviction from certain premises, relied, inter alia, on a
written addendum to the lease agreement.
The defendant did not annex
the addendum to its plea, alleging that a copy of the addendum was
not in its possession and was
last in the possession of the
plaintiff. The original addendum was not adduced in evidence. The
question whether an addendum had ever
been concluded was hotly
disputed. The Supreme Court of Appeal held that in the circumstances
of the case the defendant was excused
from producing the original and
found that the execution and terms of the addendum had been
sufficiently proved by oral testimony
(see particularly in paras 4 –
5 and 17 – 19). …
[11]
That then is the substantive law. The rules of court exist to
facilitate the ventilation of disputes arising from substantive
law.
The rules of court may only regulate matters of procedure; they
cannot make or alter substantive law (
United Reflective Converters
(Pty) Ltd v Levine
1988 (4) SA 460
(W) at 463B – E and
authority there cited). The court is, moreover, not a slave to the
rules of court. As has often been
said, the rules exist for the
courts, not the courts for the rules (see
Standard Bank of
South Africa Ltd v Dawood
2012 (6) SA 151
(WCC) para 12). …
[12]
A rule which purported to say that a party to a written contract
was deprived of a cause of action if the written document was
destroyed
or lost would be ultra vires.
But the rules say no such
thing. Rule 18(6) is formulated on the assumption that the pleader is
able to attach a copy of the written
contract. In those circumstances
the copy (or relevant part thereof) must be annexed.
Rule
18(6) is not intended to compel compliance with the impossible.
(I may add that it was only in 1987 that Rule 18(6) was amended to
require a pleader to annex a written copy of the contract on
which he
relied. Prior to that time the general position was that a pleader
was not required to annex a copy of the contract —
see, for
example,
Van Tonder v Western Credit Ltd
1966 (1) SA
189
(C) at 194B – H;
South African Railways and
Harbours v Deal Enterprises (Pty) Ltd 1
975 (3) SA 944
(W) at
950D – H.) (My emphasis)
…
[20]
…
If it is impossible for the plaintiff to produce
the written contract or a copy thereof, the law allows him to
prove the execution
and terms of the written contract by other
evidence. A rule of procedure cannot deprive the plaintiff of his
cause of action or
of his right to adduce secondary evidence of the
contract, though the rules would still require the plaintiff to plead
with appropriate
particularity the conclusion of the contract and its
terms.
(My emphasis)
[21]
I also, with respect, disagree with the learned judge's
proposition that '(i)n the absence of the written agreement
the basis
of the [plaintiffs'] cause of action does not appear ex facie the
pleadings' (para 18). If a plaintiff pleads the conclusion
of a
written contract and the terms relevant to his cause of action, the
cause of action will appear ex facie the particulars of
claim. That,
after all, is how causes of action based on written contracts
were legitimately pleaded prior to the amendment
of rule 18(6) in
1987, at a time when there were no procedural requirements to annex
the written contract. What is true is that
since 1987 a plaintiff who
fails to annex the written contract will (at least in the absence of
a properly pleaded explanation)
be in breach of rule 18(6).
[22]
To the extent that the plaintiff requires the condonation
sought in para 4.5 of the particulars of claim, that request
is not
before us. If the defendants consider that condonation is necessary
and, if they wish to oppose condonation, a court could
give
procedural directions for the filing of affidavits. Alternatively the
request for condonation in the particulars of claim
could be
tried as a separated issue in terms of rule However, and unless the
plaintiff's allegations concerning the loss of
the document by
way of fire are untrue, the only other persons who are likely to be
in possession of a copy of the mortgage loan
agreement are the
defendants themselves. At this stage we do not know that the
defendants do
not
have a copy of the agreement. If
they do have a copy of the agreement, they would obviously receive
short shrift in opposing condonation.
If they, like the
plaintiff, do not have a copy, I have already explained why in my
view the plaintiff would not be non-suited.
This would either be
because rule 18(6) does not apply to such a case or because
condonation in terms of rule 27(3) could not properly
be refused. …
[23]
… What cannot appropriately be done is to serve an
exception contending that the particulars of claim disclose
no cause
of action; the non-compliance with rule 18(6) is unrelated to
the question whether there is or is not a cause of
action. …
…
[25]
I would dismiss the exception with costs. …”
[27]
In my view the aforesaid principles are
mutatis mutandis
applicable to the present circumstances in respect of the
illegible annexures to the respective contracts attached to the
Particulars
of Claim. The relevant paragraph now provides an
explanation as to why more clearly legible annexures have not been
attached to
the Particulars of Claim.
[28]
The paragraph which the plaintiff seeks leave to insert, in itself,
is definitely not vague and
embarrassing. Even should it be accepted,
for the sake of argument, that the Particulars of Claim may possibly
be excipiable as
it presently stands, which I am not called upon to
determine at this stage, the insertion of the said paragraph will not
contribute
to the excipiability of the pleading. If it is to be
accepted that the Particulars of claim is not presently excipiable,
the insertion
of the relevant paragraph will not
render
it
excipiable. In both scenarios the insertion of the relevant paragraph
will, in fact, lend more clarity to the Particulars of
Claim as a
whole.
[29]
The proposed amendment in respect of prayer 2 in relation to the
claim for interest, is strongly
objected to by the defendants as are
evident from paragraphs 2.2.2 – 2.2.4 of the defendants` Notice
of objection to the
proposed amendment, already quoted in
subparagraph [9](4) above.
[30]
The proposed amended prayer 2 has already been quoted earlier in the
judgment, but for the sake
of ease of reference I repeat same:
“
Interest
on this amount, calculated at
a rate as set out in the Sale
Agreement of 27 July 2020 (and as pleaded in para 9.2.3 of the
Particulars of Claim) from date of
Service of Summons until date of
final payment, alternatively such interest as calculated at the
applicable mora interest rate
a tempore morae, from 11 January 2023
until final date of payment.”
[31]
To consider the contents of paragraph 9.2.3 of the Particulars of
Claim in context, I deem it
apposite to also quote paragraph 8 and
the preceding subparagraphs of paragraph 9 in their present form:
“
THE SALE
AGREEMENT:
8.
On or about 27 July 2020
and at Bloemfontein, the Plaintiff and the First Defendant concluded
a written sale Agreement. Robert David
Wiggett, properly authorised
thereto by means of written resolutions passed by both the Plaintiff
and the Defendant on 20 July
2020, had represented both the Plaintiff
and the Defendant.
9.
The express,
alternatively implied, in the further alternative salient tacit terms
of the Agreement were:
9.1 The
Plaintiff sold to the Defendant its rental fleet, consisting of the
vehicles set out in Schedule 1 to the Agreement
together with
accompanying rental contracts concerning such vehicles as an
enterprise and going concern.
9.2 The purchase
consideration aforesaid going concern was determined at
R46,821,270.00 which would be payable as follows:
[
sic
]
9.2.1 A deposit of
R15,000,000.00 in cash, upon signing of the Agreement; and
9.2.2 The balance
of the capital purchase consideration of R31,821,270.00, in monthly
instalments of R688,662.40 over a period
of 54 months, payable on or
before the first day of each and every month, commencing on the first
day of the month following the
signature of the Agreement; and
9.2.3
Interest
calculated at a rate of 7% per year linked to the prime rate from
time to time but not less than 6%, should the rate vary
in subsequent
years, per annum.
(My emphasis)
9.3 …”
[32]
It is consequently evident that the plaintiff pleaded its case in
respect of interest in paragraph
9.2.3 on the basis that the pleaded
interest rate is what the parties agreed upon in terms of the Sale
Agreement, dated 27 July
2020, either expressly, alternatively
impliedly and in the further alternative tacitly.
[33]
It is therefore the very same alleged agreed interest which the
plaintiff is claiming in terms
of prayer 2 in its proposed amended
form, as its main claim in respect of interest.
[34]
In the alternative, the plaintiff is claiming mora interest,
obviously in the event it is not
able to successfully prove the
alleged agreed interest. The alternative claim is clearly based on
the substantive law as contained
in section 1, read with
section 2(a)
of the
Prescribed Rate of Interest Act, 55 of 1975
, which reads as
follows:
“
1
Rate at
which interest on debt is calculated in certain circumstances
(1)
If
a debt bears interest and the rate at which the interest is to be
calculated is not governed by any other law or by an
agreement or a
trade custom or in any other manner, such interest shall be
calculated at the rate contemplated in subsection (2)
(a)
as
at the time when such interest begins to run, unless a court of law,
on the ground of special circumstances relating to
that debt, orders
otherwise.
(2)
(a)
For
the purposes of subsection (1), the rate of interest is the
repurchase rate as determined from time to time by the South
African
Reserve Bank, plus 3,5 percent per annum.”
[35]
A summons (Particulars of Claim) must contain a prayer for interest
if an order for interest is sought and
must set out the grounds upon
which interest is claimed. If interest is claimed by virtue of an
agreement, the agreement should
be alleged in the summons
(Particulars of Claim). See
Erasmus Superior Court Practice
,
supra,
at D1
Rule 17
-
10
. This is exactly what the plaintiff is
attempting to do by means of paragraph 9.2.3 of its Particulars of
Claim, read with the
proposed amended prayer 2 thereof.
[36]
In my view there is nothing vague and embarrassing about the proposed
amended prayer 2, read with paragraph
9.2.3 of the Particulars of
Claim. There is no basis upon which the defendant can allege
that they are unable to determine
“
what the plaintiff
alleges to be the agreed rate of interest, and/or what the rate of
interest is that the plaintiff purports to
claim
”.
[37]
The proposed amended prayer 2, in itself, is not excipiable, nor does
it render the Particulars of Claim
excipiable. Should it again, for
argument`s sake, be accepted that the Particulars of Claim in its
present form is excipiable,
prayer 2 will not contribute to the
excipiability thereof; in fact, it will clarify the particulars of
claim in respect of prayer
2 thereof.
[38]
There is consequently no basis upon which the defendants can object
to the proposed amendment of prayer 2.
[39]
None of the proposed amendments will prejudice or cause an injustice
to the defendants. The application for
leave to appeal is also, in my
view,
bona fide.
Costs:
[40]
Rule 28(9)
determines as follows:
“
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.”
[41]
The general rules pertaining to costs governing amendments are set
out in
Erasmus Superior Court Practice
,
supra,
at
D1
Rule 28
-
22
/23:
“
It
is clear that the court, in accordance with the basic rule governing
awards of costs, has a discretion.
The
grant of an amendment is an indulgence to the party requiring it,
which entails that such a party is generally liable for all
the costs
occasioned by or wasted as a result of the amendment. …
Costs
occasioned by an amendment have often been held to include the costs
of such opposition as is in the circumstances reasonable
and not
vexatious or frivolous. In other cases the costs of unsuccessful
opposition were not so included and the unsuccessful
objector was
ordered to pay the costs of his opposition even though it was not
considered unreasonable or vexatious or frivolous.
It
has, however, been stressed that in deciding whether the party to
whom an indulgence is granted is to pay the costs of opposition,
the
recognition of a single criterion for liability (such as the
reasonableness of the opposition) tends to hamper the exercise
of the
unfettered discretion which the court has in its awards of costs, the
exercise of that discretion being essentially a matter
of fairness to
both sides. Though reasonableness of the opposition is an
important criterion in cases where an indulgence
is sought,
it
need not necessarily be the only criterion
. A
criterion which may be useful in one case may in other cases not have
the desired fair effect.
Each case must, therefore,
depend upon its own facts
.” (My emphasis)
[42]
The fact that the proposed amendments will not render the Particulars
of Claim excipiable does
not mean that it renders it non-excipiable
or immune to an (new) exception in terms of
Rule 28(8).
The
plaintiff has, by means of the application to amend, side stepped an
exception to be taken. The amendments very well
remove some of the
complaints levelled in the Notice to remove causes of complaint in
terms of
Rule 23(3)
, and, in my opinion, will not
render
the
pleading excipiable, but do not necessarily remove possible other,
and remaining, grounds for a new exception. If this is so,
the
application may turn out to have been a futile exercise. For that
reason, as well as the fact that the opposition of the application
was, in my view, not unreasonable or frivolous, I deem it fair to
order the plaintiff to pay the costs of the application.
Order:
[43]
The following order is made:
1.
Leave is granted to the plaintiff to amend its Particulars of Claim
in accordance with paragraphs 1 –
17 of its Notice of Intention
to Amend, dated 8 June 2023.
2.
The aforesaid amendments and the processes to follow thereupon, are
to be done in terms of the applicable
subsections of
Rule 28.
0
in; line-height: 150%">
3.
The plaintiff is ordered to pay the costs of the application to
amend.
C.
VAN ZYL, J
On
behalf of the plaintiff:
Adv.
S Grobler SC
Instructed
by
:
Hendré
Conradie Ingelyf
Bloemfontein
Ref:
FRE62/0011 T1 JHC/AB
On
behalf of the defendant:
Adv.
Y. Coertzen
Assisted
by:
Adv.
B C Bester
Instructed
by:
A P
Pretorius & Partners
Bloemfontein
Ref:
STAN1/0001/M MYNHARDT