About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2023
>>
[2023] ZAECELLC 37
|
|
East London Industrial Development Zone (Soc) Ltd v Wild Coast Abalone (Pty) Ltd and Another (EL536/2019) [2023] ZAECELLC 37 (30 November 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT]
CASE NO.: EL536/2019
In the matter between: -
EAST LONDON INDUSTRIAL
DEVELOPMENT
ZONE (SOC) LTD
Plaintiff
and
WILD COAST ABALONE
(PTY) LTD First
Defendant
ANDRE
BOK Second
Defendant
JUDGMENT
NORMAN J:
[1] Plaintiff is
the East London Industrial Development Zone (Soc) Ltd, a State-owned
company, that has its registered principal
place of business in East
London. It instituted an action against two defendants. The first
defendant is the Wild Coast Abalone
(Pty) Ltd (Wild Coast), a private
company with limited liability that carries on business at portion 1
of Farm [….] , H[....]
H[....] The second defendant is Andre
Bok (Bok), an adult male who resides in East London.
[2] It is common
cause between the parties that at all material times hereto,
plaintiff owned the property situated at Erf
[….] in Zone 1A,
Ikhala Road, Sunnyridge, in East London, together with all structural
improvements and additions thereto
(“the property”). On
23 April 2009 it entered into a lease agreement in respect of the
aforesaid property with Five-Fold
Investments No.4 (Pty) Ltd. The
lease agreement commenced on 1 April 2009 and terminated on 31 March
2019.
[3] Thereafter the
tenant changed its name to Pure Ocean East London (Pty) Ltd (“Pure
Ocean”) and an addendum
to the lease agreement was concluded
between the parties. The tenant was subsequently placed under
provisional liquidation on 4
March 2016, which order was made final
on 9 May 2016. On 12 July 2016 during the liquidation process Wild
Coast purchased the movable
assets of
Pure Ocean
from the
liquidator. Those assets were situated on the property.
[4] Plaintiff
alleged that Wild Coast and Bok operated a joint venture,
alternatively, a partnership for their mutual and
joint benefit under
the style of Wild Coast. They undertook the business of farming of
fish and other marine aqua culture activities
from the plaintiff’s
mentioned property (“the business”). In the alternative,
plaintiff alleged that Bok was
employed by Wild Coast and acted
within the course and scope of his employment with it and in
furthering Wild Coast’s interests.
Pleadings
[5] Plaintiff’s
first claim is based on allegations that after purchasing the assets,
Wild Coast and Bok took occupation
of the property and conducted the
business from the property with effect from 12 July 2016 until 19
March 2018. They were evicted
from the property in terms of a court
order issued under EL1280/2017 and ECD3280/2017 on 6 March 2018. They
finally vacated the
property on 19 March 2018.
[6] Plaintiff
contends that West Coast and Bok were in unlawful occupation of the
property during the period 12 July 2016
until 19 March 2018. As a
result of such unlawful occupation plaintiff contends that it could
not let the property to anyone else
for reward. As a result, it
contends, it suffered damages in respect of loss of market related
rental for the property during the
period from July 2016 in the
amount of R19 980.00 per month escalating at 7% per annum on
each anniversary of the said lease.
That was the rental plaintiff
charged and was entitled to receive from his previous tenant in
respect of the leased property. It
accordingly claimed damages in the
amount of R432 132.93.
[7] The second
claim is premised on the alleged unlawful occupation of the property
by Wild Coast and Bok during the same
period. Plaintiff contends that
during that period it paid, to the local government authority, for
utility service charges including
but not limited to electricity,
water and gas , rates and taxes in respect of the property which Wild
Coast and Bok utilized for
their benefit in conducting the business.
The amount claimed for utility service charges, rates and taxes for
the period 11 October
2016 until 26 March 2018 is the sum of
R352 776.41. Plaintiff claimed that it has been impoverished and
Wild Coast and / or
Bok have been unjustifiably enriched at its
expense.
[8] Plaintiff filed
the third claim based on the conduct of Wild Coast and Bok when they
vacated the property as a result
of the eviction order. It alleged
that they or persons acting under their direction or control
wrongfully and unlawfully dismantled
tunnels which were improvements,
alternatively, additions made to the property by the tenant in
respect of which the plaintiff
had become the owner. During the
dismantling process and in their attempt to remove the tunnels, the
tunnels allegedly got damaged.
Plaintiff claims fair and reasonable
costs of assembling the tunnels, remedying the damage caused to the
tunnels and restoring
them to the condition they were in prior to
Wild Coast and Bok’s unlawful conduct in the sum of R485 000.00
excluding
value added tax (VAT).
[9] Both Wild Coast
and Bok defended the action. Wild Coast in relevant parts pleaded:
“
Ad
Paragraph 4 thereof:
All
these allegations are denied as if specifically traversed, and the
Plaintiff is put to the proof thereof. The First Defendant
contends
that a company, Aqua Management Systems (Pty) Ltd conducted the
business of farming with from the property of the Plaintiff
to which
reference is made later in the particulars of claim.”
[10] Later and in
paragraph 11.4 it pleaded:
“
Ad
Paragraph 12 thereof
:
11.1
…
11.2…
11.3…
11.4
The First Defendant pleads that
after it purchased the assets the First Plaintiff entered into an
arrangement with a company known
as Aqua Management Systems (Pty) Ltd
, represented by the Second Defendant.
In
terms of this arrangement the First Defendant allowed the aforesaid
company to use the assets purchased to conduct the business
of a fish
farm from the premises on the basis that the company would operate
for its own loss and/ or profit, with the understanding
that the
First Defendant wanted the company to preserve the assets and the
business so as to enable the First Defendant to successfully
resale
the business and/ or the assets at a later stage.”
(my
emphasis).
[11] Wild Coast also
admitted that it knew the person by the name of Andre Bok. Plaintiff
replicated to Wild Coast’s plea
by alleging that Wild Coast
and/or its agent attempted to remove the AZROM AGRI tunnel on 19
March 2018. Plaintiff objected to
the tunnels being removed from the
premises as they were its property. Plaintiff further averred that it
is the owner of the immovable
property set out in Annexure A to West
Coal’s counter-claim.
[12] Bok pleaded as
follows:
“
12.
Ad paragraph 12 thereof
12.1
This paragraph is denied and Plaintiff is put to the proof thereof.
12.2.
The Second Defendant pleads further:
12.2.1
Certain assets of the First Defendant were on the property during the
relevant period.
12.2.2
A company known as Aqua
Management Systems (Pty) Ltd simultaneously occupied the property
during the relevant period
.
(my
emphasis)
13.
Ad paragraph 13 thereof
The
Second Defendant admits that the court orders were granted under the
quoted case numbers on 6 March 2018. The Second Defendant
furthermore
denies that he was in occupation of the property or finally vacated
the property on 19 March 2018. The Second Defendant
pleads that
certain assets of the First Defendant were on the property during the
relevant period and that Aqua Management Systems
(Pty) Ltd
simultaneously occupied the property. The remainder of the contents
of this paragraph is denied and Plaintiff is put
to the proof
thereof.”
The impugned amendment
[13] The introduction of
Aqua Management Systems (Pty) Ltd (“Aqua”) both
in
the plea of Wild Coast and Bok caused the plaintiff to seek an
amendment of its particulars of claim. It is common cause that
plaintiff
on 02 March 2022 and on 30 March 2022
delivered notices
to amend its
particulars of claim by replacing Bok with Aqua. On both occasions
Wild Coast filed notices in terms of rule 30 (2)(b)
complaining that
the steps taken by plaintiff were irregular. Plaintiff withdrew the
notices on each occasion and tendered Wild
Coast’s costs.
[14] On 28 April 2022,
plaintiff delivered again a notice of intention to amend. For the
sake of completeness I shall record herein
the contents of the notice
to amend:
“
Kindly
take notice that
the Plaintiff
intends to amend the Plaintiff’s Particulars of Claim as
follows:
1.
By deleting paragraph 3
thereof in its entirety and replacing it with:
“
The
Second Defendant is Aqua Management Systems (Pty) Ltd, an
incorporated company with limited liability which carries on business
at and/ or has its registered address at 43 Kennington Road, Nahoon,
East London.
2.
By deleting paragraph 4 thereof in
its entirety and replacing it with:
2.1
The Second Defendant was at all
times material hereto represented by its sole director Andre Bok.
2.2
The Second Defendant and the First
Defendant operated a joint venture, alternatively, a partnership for
their joint and mutual benefit
by undertaking the business of the
farming of fish and other marine aqua culture activities from the
Plaintiff’s property
as described in paragraph 5 hereunder
under the style of Wild Coast Abalone.
And
kindly take notice further
that
unless written objection to the amendment is made within ten (10)
days of service of this notice the plaintiff will amend its
Particulars of Claim accordingly.”
[15]
Again, on 05 May 2022, Wild Coast delivered a notice in terms of rule
30(2)(b) on the basis that the notice
to amend constituted an
irregular step.
[16]
The notice reads:
“
NOTICE
IN TERMS OF UNIFORM RULE 30(2)(b)
KINDLY TAKE NOTICE
THAT the first defendant herewith afford the plaintiff an opportunity
of ten (10) days of removing the following
cause of complaint –
1.
The plaintiff has filed a notice of
intention to amend dated 26 April 2022, to substitute the second
defendant with Aqua Management
Systems (Pty) Ltd which procedure is
an irregular proceedings.
KINDLY TAKE FURTHER
NOTICE THAT unless the cause of complaint is removed within ten (10)
days period the first defendant will apply
for the relief provided
for in Uniform Rule 30(1).”
[17] Plaintiff
disregarded the rule 30 notice. On 5 May 2022 plaintiff proceeded to
file the amended pages. Thereafter Wild Coast
brought the rule 30
application, which is the subject matter of these proceedings. The
main contention in the application is that
substitution of one party
with another cannot take place by notice. A party wishing to
substitute should do so by invoking the
provisions of rule 10 and
join such party to the action. Plaintiff’s response to the
application is that Wild Coast and Bok
were cited as partners in a
joint venture or partnership; the purpose of the amendment was not to
change the parties or substitute
a party but to correct a description
of a party by citing Aqua as a partner of Wild Coast instead of
Andre’ Bok. The amendment
is consonant with the rules of court
which facilitate a procedure in terms of which partners can be held
responsible for partnership
debts. It contended that the rule 30
notice has no merit.
[18] In reply Wild Coast
contended that plaintiff was endeavoring to slip in the company in
substitution and thus bypass a special
plea of prescription which
would be raised if there is a joinder of another party. It contended
that this is a substitution of
a new party and not an amendment.
The
issue for determination
[19] The issue is whether
the amendment which seeks to replace Bok with Aqua is irregular?
Legal submissions
[20]
Mr Kotze appeared for Wild Coast and Mr Schultz for the plaintiff. Mr
Kotze submitted that: Plaintiff effectively seeks to
substitute a
party by way of an amendment. Although plaintiff contends that it is
correcting a misdescription of a party, ex
facie,
the
notice of amendment it is in effect introducing a new party.
Referring to a decision of Van Zyl J (as he then was) in
EX-TRTC
United Workers Front and Others v Premier, Eastern Cape Province
[1]
,
he submitted that a rule of practice developed to the effect that,
during the subsistence of the partnership, a plaintiff who
instituted
action to enforce a partnership obligation had to cite and join all
the partners constituting the partnership.
In this case, he argued, plaintiff seeks to change the name of a
natural person by substituting it with a legal entity, and that,
he
argued, is not permissible. He submitted that Wild Coast contends
that the claim against the party sought to be introduced has
prescribed. He submitted that if the amendment is granted Wild Coast
will not be able to raise prescription. He distinguished the
facts of
this case from the
Cupido
v Kings Lodge Hotel
[2]
decision
relied
upon by the plaintiff.
[21]
Mr Schultz, on the other hand, submitted that: The argument by Wild
Coast that plaintiff cannot use the amendment procedure
to substitute
a party is a fundamental legal misconception. It is apparent from the
plea of Wild Coast and Bok that there is a
commercial relationship
between the two entities. There is a partnership and on this basis
the court can grant the substitution
by way of an amendment. He
further argued that Wild Coast introduced a new cause of complaint in
its replying affidavit to the
effect that Aqua Management was not
given notice. This was raised in reply and that is impermissible. He
relied on
Whittaker
v Roos & Another
[3]
for
the submission that the court has the greatest latitude in granting
amendments in order for it to ensure that justice is done
between the
parties.
[22]
He further relied on rule 14 of the Uniform Rules of Court for the
submission that Rule 14 is intended to simplify the method
of
citation in respect of a number of situations. For example,
situations where a business bore a name which was descriptive of
it
and in order to eliminate technical difficulties when citing parties
involved in civil litigation. In this regard, he relied
on
Cupido
v Kings Lodge Hotel
[4]
.
[23] In reply, Mr Kotze
submitted that the plaintiff failed to serve the notice of amendment
on the party it sought to substitute
through the amendment procedure.
He submitted that even if Wild Coast is wrong on this issue,
plaintiff was not entitled to proceed
with an amendment when there
was an objection. In this regard, Wild Coast prayed that this court
should grant the application with
costs.
Discussion
[24] Rule 28 of the
Uniform Rules provides:
“
AMENDMENT
OF PLEADINGS AND DOCUMENTS
(1)
Any party desiring to amend a
pleading or document other than a sworn statement, filed in
connection with any proceedings, shall
notify all other parties of
his intention to amend and shall furnish particulars of the
amendment.
(2)
The notice referred to in subrule
(1) shall state that unless written objection to the proposed
amendment is delivered within 10
days of delivery of the notice the
amendment will be effected.
(3)
An objection to a proposed amendment
shall clearly and concisely state the grounds upon which the
objection is founded.
(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.
(5)
If no objection is delivered as contemplated in subrule
(4), every party who received notice of the proposed amendment shall
be
deemed to have consented to the amendment and the party who gave
notice of the proposed amendment may, within 10 days after the
expiration of the period mentioned in subrule (2), effect the
amendment as contemplated in subrule (7).
(6)
Unless the court otherwise directs, an amendment
authorised by an order of the court may not be effected later than 10
days after
such authorisation.
(7)
Unless the court otherwise directs, a party who is
entitled to amend shall effect the amendment by delivering each
relevant page
in its amended form.
(8)
Any party affected by an amendment may, within 15 days
after the amendment has been effected or within such other period as
the
court may determine, make any consequential adjustment to the
documents filed by him, and may also take the steps contemplated in
rules 23 and 30.
(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.”
[25]
As aforementioned rule 28(8) makes reference to rules 23 and 30. Rule
23 deals with exceptions and applications to strike out
and rule 30
deals with irregular proceedings. What is important about rule 30(3)
is what remedies or what approaches can a court
take when an
irregular proceeding process is taken.
“
30. Irregular
proceedings
(3) If at
the hearing of such application the court is of opinion that the
proceeding or step is irregular or improper,
it may set it aside in
whole or in part, either as against all the parties or as against
some of them, and grant leave to amend
or make any such order as to
it seems meet.
(4) Until
a party has complied with any order of court made against him in
terms of this rule, he shall not take any
further step in the cause,
save to apply for an extension of time within which to comply with
such order.”
[26] The rules including
rule 30 are not intended to non- suit a party who has brought an
irregular proceeding. That, in my view,
is consistent with the
constitutional imperatives, including
that:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[5]
[27]
Plaintiff alleged that the relationship between Bok or Aqua and Wild
Coast was a partnership or a joint venture. The relationship
has been
categorized by Wild Coast as an arrangement. Professor JJ Henning
[6]
stated:
“
Summary
The
general rule in South African law is that a partnership has no
existence in itself distinct from the partners of which it is
composed. A brief analysis of South African legislation, however,
reveals a significant number of instances departing from the
general
rule to some extent. This leads to a conclusion that, notwithstanding
the general rule, whether or not a partnership can
be treated as a
mere aggregate of individuals or a “juristic person”,
“entity”, “person”, “private
body”
or the like for purposes of a particular statutory provision is a
matter of careful interpretation. Thus, the basic
principle or
general rule in South African law is that a partnership is not a
legal entity or persona separate from its members;
it has no
existence of its own, distinct from the partners of which it is
composed, although some exceptions or quasi
exceptions
are acknowledged. The rights and duties of the partnership are the
rights and duties of the partners, and its property
is owned by the
partners jointly in undivided shares. If two or more individuals, in
their capacity as partners, enter into an
agreement with another
person, the identity of the partners is synonymous with the identity
of the individuals entering into the
agreement. Evidence that they
entered into the agreement as partners is merely evidence as to the
relationship between the two
or more individuals – a
relationship established by contract.”
[28] At paragraph 2.2.3
Professor Henning deals with the rules of court and had this to say:
“
A
partnership may sue or be sued in its own name. A partnership that
was dissolved after the accrual of the cause of action, but
before
the issue of summons, may nevertheless be sued in its name at the
date of the accrual of the cause of action. If so sued
and judgement
is taken against a partnership without the name of any of the
partners being disclosed, execution may follow only
against the
property of the partnership. The assets of a partner who has not been
served, who has not appeared, who has not been
adjudged to be a
partner, and whose name has not been disclosed as partner under the
court rules cannot without further proceedings
be attached in
execution of a judgement against the partnership. These rules deal
with procedure and not with substantive law.
It does not turn a
partnership or firm into a different entity or a juristic person
existing separately from its members or owners.”
[7]
(footnotes
omitted).
[29]
Our law recognizes two broad categories of partnerships, namely
universal partnerships and particular and or specific partnerships,
those being those partnerships entered into for the purpose of a
particular enterprise such as partnerships in particular things;
partnerships limited to in a specific kind of property or
undertaking, partnerships in the exercise of some profession or art
and commercial and trading partnerships
[8]
.
[30]
The four essential elements proposed by
Pothier
which must be present when one alleges that a partnership is present,
are: That each of the partners bring something into the partnership,
whether it be money, labour or skill, that the business should be
carried out for the joint benefit of both parties, that the object
should be to make of profit, and that the contract between the
parties should be a legitimate contract. The fourth element has
been
discounted by our courts for being common to all contracts as was
found in the
Mncora
case
referred to above
[9]
.
[31]
In South African Law a joint venture is a business arrangement in
which two or more parties agree to pull their resources and
expertise
to achieve a specific goal or project. In
Essence
Lading CC v Infiniti Insurance Ltd Mediterranean Shipping Company
(Pty) Ltd
[10]
Marais
AJ found that if the plaintiff cited the wrong defendant the
plaintiff should in principle withdraw the action and start
afresh
against the correct defendant. He also found that a method of
correction of errors in citation of defendants wherein conflicts
with
constitutional imperatives of a fair and just hearing trumps the need
for procedural pragmatism. He also found that a withdrawal
of action
is not the only outcome, applications for substitution or joinder of
new party may be brought on proper notice to the
new party coupled
with appropriate amendment.
[32]
The
test to be applied in substitution of or joinder applications is
substantially the same test which is applied to amendments.
It was
not contended that the substitution was not
bona
fide.
The amendment would not result
in prejudice or an injustice that cannot be cured by an appropriate
costs order.
[33]
In
Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd
[11]
reference
is made to various cases such as:
“
[10]
In
Moolman
v Estate Moolman & Another
[12]
a ‘practical rule’ developed in a number of English cases
was applied being that ‘amendments will always be allowed
unless the application to amend is
mala
fide
or unless such amendment would cause an in-justice to the other side
which cannot be compensated by costs . . .’. A fuller
and more
recent statement of this rule is to be found in the judgment of Rose
Innes J, in
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening)
[13]
:
‘
The
general rule is that an amendment of a notice of motion, as in the
case of a summons or pleading in an action, will always be
allowed
unless the application to amend is mala fide or unless the amendment
would cause an injustice or prejudice to the other
side which cannot
be compensated by an order for 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 notice of motion which is sought to
amend was filed . . . A material amendment
such as the alteration or
correction of the name of the applicant, or the substitution of a new
applicant, should in my view usually
be granted subject to the
considerations mentioned of prejudice to the respondent. . . . The
risk of prejudice will usually be
less in the case where the correct
applicant has been incorrectly named and the amendment is sought to
correct the misnomer than
in the case where it is sought to
substitute a different applicant. The criterion in both cases,
however, is prejudice which cannot
be remedied by an order as to
costs and there is no difference in principle between the two cases.
. . .’”
[34]
I find that in this case it is appropriate to utilize rule 28 in the
substitution of a wrong defendant, because Aqua, is represented
in
the action by Bok , its representative or agent and by Wild Coast,
its co-partner . Therefore, service of the notice of amendment
on Bok
which clearly demonstrated that he was going to be replaced by Aqua
was adequate in the light of the obligations that he,
as a sole
director has towards Aqua. In any event, from the pleadings it
appears that the basis of the claim against him arose
from the
relationship that he had with Aqua as its representative. No
incurable injustice would result, in my view
.
The
facts of this case are distinguishable from those that applied in
MEC
for Safety and Security, EC v Mtokwana
[14]
,
because unlike in
Mtokwana
where a wrong party , the MEC for Safety and Security , who was not
vicariously liable for the delict was sued and an attempt was
made to
amend the summons by introducing the National Minister of Police who
was not even served with the process.
In
casu
,
both defendants introduced Aqua in their pleas and alluded to the
relationship they have with it.
[35] A proposed amendment
must relate to the facts of each case. Plaintiff has employed the
term “
replacing
” in its notice to amend. The
Oxford Dictionary defines ‘replace’ as follows:
“
1.
take the place of
2.
provide a substitute for
3.
Put back in a previous place or position.”
[36] Although plaintiff
described the amendment as correcting a misdescription of a party, it
is in effect a
substitution of Andre Bok,
Aqua’s sole director with Aqua. Mr Schultz, in argument, argued
the law in respect of both substitution
and correcting a wrong
description of a party.
There is a
direct link between Aqua and Bok, on the one hand, and between Aqua
and Wild Coast, on the other. That is evident from
the amendment
sought.
[37]
In
Fisher
v Natal Rubber Compounders (Pty) Ltd
[15]
,
the Supreme Court of Appeal dealt with essential continuity which I
believe is also a relevant consideration in this case although
it
applies to defendants. The SCA held that essential continuity
requires a creditor to prosecute the same claim under the same
process to final judgment. The Court set two requirements for
essential continuity, namely, the substitution must not amount to
a
document or process whereby legal proceedings are commenced
(otherwise this will cause a break in the legal process); and the
claim must relate to the same debt. Similarly, as in this case, Aqua
simply stepped into the shoes of Bok
[16]
.
In
Silhoutte
the rationale was that
Silhoutte
ceased
to pursue the claim and Dyer stepped in when the summons was amended.
But Dyer had not acquired the claim that
Silhoutte
had been pursuing, so there was no continuity in pursuing the claim
as in this case.
[17]
The
Silhoutte
decision disposes of the submission that it is impermissible to
substitute a natural person for a legal entity. Secondly, it also
disposes of the argument that Aqua will not be able to raise
prescription and will thus suffer incurable prejudice. Aqua is
brought
into a claim where there is continuity in the claim that was
instituted by the plaintiff against Aqua’s director, Bok and
its business partner , Wild Coast.
[38]
If the substitution of a party is intended, the notice of intention
to amend must make it clear that such a substitution is
intended
[18]
.
As aforementioned the plaintiff made it clear that it was replacing
Bok with Aqua.
[39] The issue relating
to notice was raised in reply by Wild Coast and not as a ground of
objection. It was argued on behalf of
the plaintiff that I should
ignore that ground for that reason. I believe that it would be
prudent to deal with it briefly. First,
the issue of giving notice to
the party to be cited as a substitute is to avoid incurable
prejudice. That is prejudice that cannot
be remedied by a cost order.
Second, it is to afford that party an opportunity to object to its
substitution. In this case the
sole director of Aqua was given notice
of the amendment. Not only that but the business partner of Aqua,
namely, Wild Coast was
also given notice.
[40] The above facts
distinguish this case from
Essence Lading,
supra
,
because Wild
Coast, pleaded an arrangement
between it and Aqua in paragraph 11.4 as aforementioned.
That
portion of the plea confirms not only the existence of Aqua and its
relationship with Wild Coast but identifies Bok as the
representative
of Aqua.
The notice to amend was not only
served on Wild Coast but it was served on Bok, who is the sole
director of Aqua.
There is accordingly no prejudice to Aqua in
this regard.
[41] According to
section
66
of the
Companies Act 71 of 2008
, a director is defined “
as
a member of the
board of a company’
. The same
section places the management of the business and affairs of a
company under the direction of its board. In any event,
Bok has not
objected to the proposed amendment. I am satisfied that because the
plaintiff does not seek to amend the nature and
extent of its claim
no prejudice would be suffered by Aqua and Wild Coast. I am fortified
in this view by the fact that there is
no suggestion that the claim
itself is a nullity.
[42] For all the above
reasons, I find that the amendment was properly made. It follows that
the
rule 30
application must fail. On the issue of costs, there are
no factors that have been placed before me which would call for a
departure
from the normal rule that costs should follow the result.
[43] I accordingly make
the following Order :
The
Rule 30
application is dismissed with costs.
T.V NORMAN
JUDGE OF THE HIGH
COURT
Matter heard
on: 12
October 2023
Judgment delivered
on: 30 November 2023
APPEARANCES:
For the APPLICANT/1
ST
DEFNDANT: ADV KOTZE
Instructed
by: Clark
Laing Inc.
58 Jarvis Road, Berea
East London
TEL: 043 721 1556
REF: FRANE VAN ROOYEN
For the 2
ND
DEFENDANT: BATE
CHUBB & DICKSON INC.
Attorneys for the 2
ND
DEFENDANT
SUITE 3 NORVIA HOUSE
VINCENT
EAST LONDON
REF: MR
KRETZMANN/kp/B301/MAT41635
For the
PLAINTIFF/RESPONDENT: ADV SCHULTZ
Instructed
by:
Couzyn
Hertzog & Horak Inc.
Attorneys for 1
st
DEFENDANT
321 Middel Street
Brooklyn
PRETORIA
EMAIL:
Laetitias@couzyn.co.za
REF: J
STERK/ls/WIL121/0004
C/O
Gravett Schoeman
Inc.
The Hub, Bonza Bay
Road
Beacon Bay
EAST LONDON
TEL: 043 748 3038
REF: MR I.
THEOPHILUS/FW/MAT51499
[1]
EX
-TRTC United Workers Front and Others v Premier, Eastern Cape
Province
2010
(2) 114 ECB.
[2]
Cupido
v Kings Lodge Hotel
1999
(4) SA 257
E.
[3]
Whittaker
v Roos & Another
1911
TPD 1092
at 1102.
[4]
Cupido
v Kings Lodge Hotel
1999
(4) SA 257
E.
[5]
Section
34 of the Constitution, Act 108 of 1996
[6]
Professor
JJ Henning, Senior Professor in the Faculty of Law University of the
Free State Journal for Juridical Science 2014:
39 (2) pages 53 to
66
in an article entitled: “Some Manifestations of the Statutory
Recognition of a partnership as an entity.
[7]
Ahmed v
Belmont Supermarket
1991 3 SA 809
N, page 811 para A-B;
Standard
Bank v Pearson
1961 3 SA 721
E.
[8]
LAWSA
, 2
nd
Ed para 255, see also
Butters
v Mncora
2012 (4) SA 1
(SCA) at 6C to E.
[9]
See
also
MM
Vedh v GDP Vedh
(5508/11) [2013] ZAGPPHC 530 (17 April 2013) judgment by AB Russow
AJ paras 39-40.
[10]
Essence
Lading CC v Infiniti Insurance Ltd Mediterranean Shipping Company
(Pty) Ltd
(2022/4024)
[2023] ZAGPJHC 676;
[2023] 3 All SA 410
(GJ) (9 June 2023)
[11]
Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd 2001(4) SA 211 (WLD
)
at
page 217 -218, para 10,
[12]
Moolman
v Estate Moolman & Another
1927
CPD 27
at 29.
[13]
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening)
1994
(2) SA 363
(C) at 369 F-I.
[14]
MEC
for Safety and Security, EC v Mtokwana
2010 (4) SA 428.
[15]
Fisher
v Natal Rubber Compounders (Pty) Ltd
(20640/14)
[2016] ZASCA 33.
[16]
Silhoutte
Investments Ltd v Virgin Hotels Group Ltd
2009
(4) SA 617 (SCA).
[17]
Fisher
,
supra, paragraph 8.
[18]
Luxaria
(Pty) Ltd v Gray Security Services (Pty) Ltd
2001
(4) SA 211
(W) at 216 paras F-G.