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[2022] ZAFSHC 145
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FNB v Cronje and Others (3955/2019) [2022] ZAFSHC 145 (24 February 2022)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3955/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrate: YES/NO
In
the matter between:
FIRSTRAND
BANK LTD t/a FIRST NATIONAL BANK
Plaintiff
and
PHILIPPUS
JOHANNES JACOBUS CRONJE
1st
Defendant
ADOLF
JOHANNES DE BRUN
N.O.
2nd
Defendant
PHILIPPUS
JOHANNES JACOBUS CRONJE N.O.
3rd
Defendant
CECILE
CRONJE N.O.
4th
Defendant
ANDRIES
GUSTAV LE GRANGE
N.O.
5th
Defendant
(In
their capacity as trustees of the PC
Trust
registration Number [....])
DIE
CRONJE SEUNS BOERDERY CC
6th
Defendant
HENDRIK
BERNARDUS CRONJE
7th
Defendant
HESTER
CRONJE N.O.
8th
Defendant
(In
their capacity as trustees of the Hendrik Cronje Family
Trust
registration number [....])
JUDGMENT
BY:
C
REINDERS, ADJP
HEARD
ON:
24
FEBRUARY 2022
DELIVERED
ON:
30
MAY2022
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and release to SAFLII. The
date
and time for hand-down is deemed to be 15:30 on 30 May 2022.
[1]
On 27 March 2019 the plaintiff ("the
bank") issued summons against the defendants claiming payment of
an amount of R30
million. The said claim is against the defendants
jointly and severally, the one paying the other to be absolved. The
bank relies
upon five credit agreements (an overdraft facility and
four loan agreements) and eight contracts of suretyships. By virtue
of twelve
registered mortgage bonds the bank seeks orders of
executability in respect of mortgage bonds registered over immovable
properties.
[2]
The defendants on 11 December 2019
caused to be filed their plea seeking an order in terms of the
provisions of
s130(4)(b)
of the
National Credit Act 34 of 2005
{the
"NGA") declaring that the bank has not complied with the
provisions of
s129
of the NC; an order that the de facto control of
the PC Trust rests with Mr PJJ Cronje (Mr Cronje); that the trust
operated as
Mr Cronje's alter ego and that the debt of the PC Trust
to the bank must be added to Mr Cronje's indebtedness when assessing
Mr
Cronje's financial position.
A
further order is sought in terms of
s85
of the NCA referring the
bank's claims against Mr Cronje, the trustees of the PC Trust and
Cronje Seuns Boerdery to a debt counsellor
who is to make a
recommendation to court. Defendants seek an order declaring the
overdraft facility and business loan agreement
to be the granting of
reckless credit. Defendants seek a further order declaring Chapter 6
of the Companies Act to be unconstitutional
based thereon that a
trust does not enjoy the protection and benefit relating to business
rescue and compromise with creditors
and an order dismissing all of
the bank's claims that are not subject to any of the mentioned
orders.
[3]
This is an application by plaintiff for
leave to amend its particulars of claim in case number 3955/2019.
[4]
On 25 March 2021 plaintiff served a
notice of intention to amend. The amendment is sought in terms of
Rule 28(4) of the Uniform
Rules of Court. This prompted an objection
by the defendants in terms of Rule 28(3), resulting in the formal
application for leave
to amend which served before me. The defendants
filed a counter-application praying, amongst others, that the bank be
ordered to
furnish a reply to defendants'
notice
in
terms of rule 35(3) dated 27 October 2020 and to defendants' request
for trial particulars dated evenly.
[5]
In applications where an amendment is
sought the general rule is that same should be allowed unless there
is good cause for not
allowing the amendment. This would be the case
where the application to amend is mala fide or would cause an
injustice to the other
side which cannot be compensated by an
appropriate cost order.
See:
Ascendis Animal Health (Pty)
Ltd v
Merck Sharp Dahme Corporation and Others
2020 (1) SA 327
(CC)
at
para [89].
[6]
Where prejudice is complained of it
should be actual specified prejudice and a mere allegation thereof
does not suffice.
See:
Shrosbree Nov
Klerck NO and Others
2000
(4) SA 457
(SE)
at 464
[7]
The proposed amendment seeks the
adjudication of six mortgage bonds (to be called up) and five
immovable properties to be declared
executable, however plaintiff
does not persist in seeking relief in respect of the mortgage bonds
and immovable properties that
currently form part of the bank's claim
as annexures "V1" to "V8", or put differently the
plaintiff does not
wish to proceed with its claim against defendants
based on fourteen mortgage bonds but only based on the six mortgage
bonds. I
may add that plaintiff also seeks an order in terms whereof
the reference to the word "second" in paragraph 68 of the
notice of intention to amend be removed and substituted with the word
"third".
[8]
The defendants oppose the proposed
amendment and seek the relief in the counter-application as stated. I
find it necessary to repeat
the grounds upon which the defendants'
objections were founded as set out in the notice of objection dated
11 October 2021:
"1.
FIRST GROUND OF OBJECTION-REMOVAL OF MORTGAGE
BONDS
1.1
In its notice of proposed amendment, the
plaintiff
states
that paragraphs 1 to 11 of the
existing
particulars
of
claim,
inclusive
of
the
existing
prayers
and
annexures thereto, will be deleted and
replaced with new paragraphs numbered 1 to 105.2, and annexures
different than those which
accompanied the existing particulars of
claim, are attached.
1.2
The effect of the proposed amendment is
to delete the whole of the existing particulars of claim, including
its prayers and the
annexures thereto, as paragraphs 1 to 11 of the
existing particulars of claim.
1.3
The proposed amended paragraphs 1 to
105.2 delete certain references to the mortgage bond security and
claims for declarations of
executability that formed part of the
existing particulars of claim at paragraph 9 thereof, without
disclosing why such an amendment
is appropriate.
1.4
The mortgage bond security omitted under
the proposed amendment were marked as annexures "V1" to
"VB" to the
existing particulars of claim.
1.5
The prayers contained in the proposed
amendment further delete the relief sought for the immovable
properties (as described in annexures
"V1" to "VB"
above, which properties are owned by the defendants, to be declared
immediately executable.
1.6
The mortgage bond security mentioned in
1.4 above constitute security under the causes of action (i.e. loan
agreements) as set out
in the plaintiff's particulars of claim.
1.7
The plaintiff, being a mortgagee of
immovable properties owned by the defendants, and which mortgage
bonds secure the claims in
these action proceedings, is obliged to
disclose the nature and extent of the security held over the
immovable properties and/or
debts of the defendants.
1.8
In the event that the proposed amendment
is allowed the amended particulars of claim will not comply with 1.7
above.
1.9
This would negatively impact on the
court's ability to exercise its judicial oversight when execution is
sought, which executionary
relief is an integral and intrinsic part
of the plaintiff's cause of action which may not be separated from a
claim for money judgment.
1.10
The proposed amendment would further
negatively impact on the court's ability to exercise its discretion
to grant or refuse the
plaintiff's utilisation of the acceleration
clauses, as the plaintiff's claim in this regard is for specific
performance.
1.11
As a consequence of the proposed
amendment the defendants will further be prejudiced in that:
1.11.1
There would be an undue protraction of
legal proceedings;
1.11.2
The legal proceedings between the
parties will be handled in a piecemeal manner;
1.11.3
The ultimate legal costs will increase
significantly;
1.11.4
The defendants will not be able to
obtain all of the relevant documentation and information as sought in
their rule 35(3) request
relating to the valuations of the immovable
properties (specifically par 101 to 114 thereof) delivered to
plaintiffs attorneys
on 27 October 2020 and the defendants' request
for further particulars- (specially par 133-137 thereof) served on
the plaintiffs
attorneys on 27 October 2020 relating to the
valuations of the immovable properties;
1.11.5
The defendants' ability to prepare for
trial will be curtailed; and
1.11.6
The defendants' ability to make further
arrangements regarding the debt will be curtailed.
1.12
It is in the interest of the
administration of justice that the same court deals with the claim
for monetary relief as well as the
claim in respect of immovable
properties held as security and for the execution thereof,
simultaneously.
1.13
It is further in the interest of the
administration of justice that any order for acceleration of the loan
amounts, together with
any order for special/immediate execution
against the immovable properties, be heard and determined in a single
hearing.
1.14
In the result the proposed amendment
would:
1.14.1
Render the plaintiff's particulars of
claim, as amended, incomplete and lacking averments which are
necessary to sustain the action
and resolve the disputes between the
parties; and
1.14.2
Hamper the administration of justice,
and prejudice the defendants, which prejudice cannot be cured by a
costs order.
2.
SECOND GROUND OF OBJECTION -VAGUE AND
EMBARASSING
ALLEGATIONS
SURROUNDING THIRD TERM LOAN AGREEMENT
2.1
Paragraphs 61 to 69 of the proposed
amendment ("the Relevant Portion") deals with the "third
term loan agreement"
entered into between the plaintiff and the
PC Trust on 22 August 2017.
2.2
Save for what is stated herein below the
plaintiff continuously, and exclusively, makes reference to what it
termed the "third
loan agreement" throughout the Relevant
Portion.
2.3
In paragraph 68 of the proposed
amendment the plaintiff however pleads the following:
"Furthermore,
and in any event, the plaintiff pleads that the PC Trust has
repudiated the
third
loan
agreement in that the PC Trust refused to comply with the terms
of the
third loan
agreement and has denied that
the
third loan
agreement is enforceable in
accordance with the terms thereof. As a result of such repudiation,
the outstanding capital and interest
thereon, due under the
second
loan
agreement, became due and payable by the PC Trust
to the plaintiff."
2.4
It is unclear why reference is made to
the "second loan agreement" in the said paragraph and the
defendants submit that
any repudiation of the third loan agreement
does not, in accordance with the proposed amendment as pleaded, lead
to the result
that the outstanding capital and interest under the
second loan agreement becomes due and payable.
2.5
Should paragraph 68 of the proposed
amendment be allowed to stand, it would cause the plaintiff's
particulars of claim to be vague
and embarrassing, and consequently
excipiable.
3.
In the result, the proposed amendments
would render the plaintiff's particulars of claim, as amended,
lacking averments necessary
to sustain an action and/or vague and
embarrassing, and consequently excipiable, the administration of
justice would be hampered
and the defendants would be prejudiced and
unable to plead thereto, and the prejudice cannot be cured by costs."
[9]
It was contended before me that the
defendants would be prejudiced in the event that they are deprived of
relevant evidence to advance
their defence of reckless credit and the
cause of their over-indebtedness. It was submitted that the bank
wants to achieve the
exact antithesis of why amendments are granted,
in that it wants to depart from the particulars of claim to prevent a
full enquiry.
Relying on the full bench judgment of
Absa
Bank Ltd v Mokebe and Related Cases
2018 (6) SA 492
(GJ)
at
506 para [22], I was urged to find that it is both desirable and
necessary for monetary claims and executability claims to be
determined simultaneously and if not, that it would result in
consequences detrimental to debtors. Still relying on
Mokebe,
I was urged to consider that the
trial court would have an obligation to exercise judicial oversight
in proceedings that could lead
to the execution of a primary
residence where the bank has an obligation to disclose the nature of
its security and wherefore the
bank should not be allowed to amend
the existing particulars of claim where the very security that it
holds is retracted from the
oversight of court. Should the amendment
be allowed it would in defendants' submission unduly limit the trial
court's ability to
exercise judicial oversight.
[10]
The plaintiff referred me to the
judgment of Rogers J in the Western Cape Division in the matter
of
Changing
Tides 17 (Pty) Ltd NO v Frasenburg
[2020] 4 All SA 87
(WCC)
(2 July 2020).
10.1
Rogers J discussed two full court
judgments
(Mokebe
and
Standard Bank of South Africa Ltd
v Hendricks
&
another
and related cases
2019 (2) SA
620
(WCC)) wherein it was held that it is undesirable, in foreclosure
cases, to deal with a money judgment separately from special
executability. I deem it appropriate to quote extensively:
"[22]
I turn now to the full court judgments.
The Gauteng judgment is
Absa Bank Ltd
v Mokebe
&
related
cases
[2018] ZAGPJHC 487;
2018 (6)
SA 492
(GJ). The full court there held that in bond foreclosure cases
the creditor should seek its money judgment and a rule 46A order
of
executability in the same proceedings, and that the court should hear
them together. In para 13 the full court said that 'to
grant judgment
for the repayment of the accelerated money debt and to postpone the
relief to declare the hypothecated immovable
property specially
executable' was a course giving rise to 'an undue protraction of the
proceedings and
piecemeal
handling of
the
matter
with
a
resultant increase in
costs'.
[23]
Although the full court did not in terms
distinguish between ordinary and special execution against immovable
property, para 13
suggests that the court was only concerned with
cases where a mortgagee sought an order of special executability.
In
such
cases
it
was
the
invariable
practice,
even
before
the introduction of rule 46A, for the
money judgment and the order of special executability
to come before the court at the same
time.
[24]
It seems to me that the balance of the
full court's judgment is premised on the usual situation in bond
cases, where the mortgagee
prays for an order of special
executability together with the prayer for the money judgment.
To
the extent that the full court suggests that a bank is compelled to
seek an order of special executability, this would be a drastic
departure for which
I
find
no support in the new rule 46A. Indeed, the new rule 46A seems to
point in the other direction, as
I
shall show.
[25]
…
[26]
In para 28 the full court said the
following:
'We
do not deal hearing with the matter where a lender sues for money
lent and advanced and does not rely on the security of a bond.
Such
lender who abandons reliance on its security, cannot introduce it at
a future date to obtain a judgment for special executability
and its
execution will be without the benefits afforded by a mortgage bond,
due to the bar to bring matters piecemeal. The banks
argued that the
unsecured creditor is in a better position than a secured creditor
because the former is able to obtain a money
judgment without any
baggage, should the claim be pleaded correctly whilst the mortgagee
has an additional onus.
The argument does not pass muster.
Rule 46A is
not confined
to
secured
creditors.
The
unsecured
creditor armed
with its
judgment
without
security,
has
an
obligation
to
satisfy
the
court of its
entitlement
to have a
primary
home
declared
executable,
and not
specially,
in the same manner that is provided
for in rule 46A.
It has a more onerous process to follow.
This obligation arises at a next court proceeding, after executing
against other property
of the debtor. The comparison and perceived
more onerous obligation on the mortgagee is consequently not valid.'
[27]
If the first three sentences of this
passage mean that a mortgagee who sues for a money judgment without
asking for an order of
special executability is thereby abandoning
reliance on, and loses the benefit of, its security, I cannot agree.
The mortgagee can plead a perfectly
sound cause of action for the payment of money without seeking to
bypass the default mode of
execution laid down in rule 46(1)(a). The
absence of a claim by the mortgagee for special executability does
not show an intention
to abandon its security. The failure to seek
and get an order of special executability simply means that, although
the mortgage
remains in place as real security, the mortgagee must
follow the ordinary process of execution, excussing movables before
executing
against the immovable property.
That
this can be done appears from an earlier full court judgment in the
former Transvaal Provincial Division: see
Gerber
v Scholtz
&
others
1951 (2) SA 166
(T) where, due to an
oversight, the mortgagee's summons had not included an order
declaring the mortgaged property specially executable.
See also
Prudential Building Society v Botha
1953 (3) SA 887
(W) where there had
been a similar oversight.
[28]
Regarding the balance of para 28 of the
full court's judgment, it is of course so
that
an unsecured creditor who has obtained a money judgment and excussed
movables will, by virtue of the new rule 46A, have to
come back to
court if it wishes to execute against residential property. A
mortgagee who has obtained a money judgment without
seeking or
getting an order of special executability is in exactly the same
position.
[29]
In para 29 the full court said that it
was the duty of a mortgagee to bring its entire case forward in one
proceeding simultaneously,
and that if the case required postponement
for whatever reason, the entire matter had to be postponed and that
'piecemeal adjudication
is not competent'. The 'entire case'
contemplated in this paragraph appears to be the case for a money
judgment together
with
an order of special executability. I
have
explained why
I
do
not read the rules as compelling the bank to seek an order of special
executability and why failure to do so does not cause the
bank to
lose its security or preclude it from later seeking to levy execution
on the
mortgaged
property.
[30]
I also do not agree that it is 'not
competent' to grant a money judgment while refusing (or deferring) an
order of special executability.
It must follow,
from
the fact that the mortgagee can seek a money judgment without
claiming an order of special executability, that if the mortgagee
claims both forms of relief it is competent for the court to grant
the money judgment while refusing {or deferring} the claim for
special executability.
[31]
I do accept, though, that
where
an order of special executability is claimed
{as
it generally is in bond foreclosure cases}, the claims for the money
and for special executability should ordinarily be disposed
of
together.
Indeed, it has hitherto
been the almost invariable case for such claims to come before court
at the same time.
If, at such
hearing, the court requires further information in order to make the
assessment required by rule 46A, it may well be
desirable to postpone
the claim for the money judgment together with the claim for special
executability.
[32]
…
[33]
In
Mokebe
the banks evidently argued that,
even though the money judgment and the order of special executability
should be brought forward
as part of the same proceedings, it did not
necessarily follow that the court was precluded, pursuant to such
hearing, from granting
a money judgment but refusing or postponing
the application for special executability. In that regard, the full
court said the
following in para 23: 'It was argued that rules 46 and
46A anticipate the possibility,
though
not
necessarily,
of
a
money
judgment
preceding
an
order
of executability. However, the
submission
of
rule 46(1)(a)(i) presupposes
that a
money judgment may be obtained
separately from, and prior to, an order of executability cannot be
upheld. The very fact that both
the money judgment and the order for
executability are given at the same time is not in conflict with the
rule which requires certain
steps against movables prior to execution
against the immovable property. It is purely a prior procedural step
before a writ against
the immovable property is issued. It is a step
separate from the monetary judgment and the order declaring the
immovable property
executive.'
[34]
I
have
several difficulties with this passage. In the first place, the
contemplation in the rules (that a money judgment may be obtained
before an order of executability) is not located only or even mainly
in rule 46(1)(a} but in the new rules 46A(2)(a)(ii) and 46A(8)(d).
These rules require the court to consider whether there are
alternative or other satisfactory means by which the 'judgment
debtor'
may satisfy the 'judgment debt'. These expressions envisage
that there may be a judgment debt without an order of special (or
ordinary)
executability.
The
judgment
debt
contemplated
in
these
rules
is
self-evidently
the
money
judgment.
[35]
Even before the introduction of rule
46A, our courts had held that in deciding whether
to
grant
or
refuse
an
order
of
special
executability,
the
question whether
the
judgment
debtor
could satisfy the
debt
in
some
other
reasonable way had to be judicially
considered (
Gundwana v Steko
Development
&
others
[2011] ZACC 14
;
2011 (3) SA 608
(CC)
paras 53-54;
FirstRand Bank Ltd v
Fo/scher
&
another,
and similar matters
[2011] ZAGPPHC
79;
2011 (4) SA 314
(GNP)
para
41). These statements
clearly
envisaged that a money judgment might be granted
but
an
order
of
special
executability
refused or deferred.
And If a mortgagee, at the time of
issuing summons, reaches the view that the circumstances are such
that a court will probably
not grant an order of special
executability, the mortgagee must be entitled to Issue summons for
the money alone.
[36]
In the second place, and flowing from
the first point,
the excussion of
movables (which is the default position, absent an order of special
executability) can only take place if there
is a money judgment. The
excussion of movables is not 'purely a prior procedural step', if by
this the full court meant something
that could happen without a money
judgment. And this 'prior procedural step', for which a money
judgment is a pre-requisite, only
has to be observed by the judgment
creditor if it has not obtained an order of special executability.
[37]
…
[38]
At least in Gauteng,
Mokebe
appears to stand as authority for
the proposition that a court cannot grant a money judgment without
simultaneously granting an
order of special executability. If it
refuses or defers the latter, it must refuse or defer the former.
See, for example,
Changing Tides 17
(Pty) Ltd NO v Mabiletsa
&
others; Absa Bank v Montwetsana
[2018] ZAGPJHC 605;
[2019] 1 All SA
619
(GJ) paras 2 and 29. For reasons set out above, I respectfully
regard that conclusion as wrong; It appears to me to be inconsistent
with earlier authority, inconsistent
with the wording of rule
46A,
and inconsistent
with the range of
options
open to the court in terms of rule
46A(8).
[39]
Accordingly,
and subject
to
any
binding
authority
in this
division,
I
do not accept that a court may not
grant a money judgment without granting an order of executability
(special or otherwise) against
the mortgaged property.
I
do accept, though, that where a bank
in fact seeks an order of special executability as contemplated in
rule 46(1)(a)(li), it is
desirable that such claim and the money
claim should be considered together.
In
the absence
of
grounds
to
believe
that the debtor
will be able
to regularise
the delinquent account within a
reasonable period of time or satisfy a judgment debt from other
resources, there is no benefit to
anyone in 'postponing the evil day'
by granting the money judgment but deferring the application for
special executability. This
will simply lead to delay and additional
cost.
[40]
The full court judgment of this division
is
Standard Bank of South Africa Ltd
v Hendricks
&
another
and related cases
[2018] ZAWCHC 175
;
2019 (2) SA 620
(WCC). As I read the court's judgment, it adopted a
more nuanced approach than
Mokebe
and
did not associate itself with the propositions in
Mokebe
with which I have expressed
disagreement. The full court in
Hendricks
was
asked to
address
nine
questions,
of
which
questions
3,
4
and
5
are
relevant
for present purposes...
[41]
In question 3 the court was asked to
consider the circumstances under which it may be appropriate to grant
a money judgment but
postpone the application to declare the
mortgaged property specially executable, given the impact on costs
and the potential for
attachment and execution of movables in the
meantime...
[42]
In relation to these questions, the full
court held, in the first place, that the claims for the money
judgment and for an execution
order should be sought and heard
together (para 40). Having regard to the formulation of question 3,
the full court was evidently
considering the case where the mortgagee in fact seeks an order of
special executability.
The principal
reasons given by the full court for requiring the money claim and a
claim for special executability to be brought
and heard together were
that it 'creates predictability and certainty, reduces costs and
avoids overburdening the court' (para
38).
This procedure not only had cost
advantages but would limit 'piecemeal adjudication' (para 40).
[43]
The full court did not state that a
mortgagee is obliged to seek an order of special executability,
failing which it loses its security
and/or is precluded from later
seeking leave to execute against the mortgaged property.
However,
the full court held that the loan agreement itself, and not merely
the mortgage bond, has the potential to impact the debtor's
right of
access to housing guaranteed by s 26 of the Constitution (para 48).
It follows that even if a mortgagee
were to seek a money judgment without asking for an order of special
executability, the court
considering the application for the money
judgment would still have to consider the implications of s 26 of the
Constitution.
Although
rule 46A would not yet apply, the court would be entitled to insist,
and should,
I
venture
to suggest, insist, on personal service of the application for
judgment, just as would be required if an order of executability
were
being sought at that stage.
[44]
Although the full court said that the
claim for the money and the claim for special executability
(assuming
there is such a claim)
should be
brought and heard together,
the court
did not, as in
Mokebe,
say
that it was not competent for a court, after hearing both claims, to
grant the money judgment and dismiss or postpone the application
for
special executability."
(own
emphases)
10.2
I respectfully agree with the
aforementioned reasoning and interpretation of the rules by the
learned judge. There is in my view
no merit in the contention by the
defendants that the plaintiff is barred from claiming a money
judgment without simultaneously
claiming an order of executability
against moveable properties with the resultant judicial oversight as
envisaged by Rule 46(A)
in relation to a property which is the
primary residence of a defendant.
[11]
Although the parties have held a meeting
in terms of Rule 37, it would appear that no trial dates have been
allocated nor has the
matter been enrolled in terms of Rule 37(8) for
case flow management. The matter is therefore not close to trial yet.
The possibility
of prejudice to the defendants is therefore remote.
On allowing the amendment the defendants will be entitled to file a
consequential
plea thereto. I cannot see how I can compel the
plaintiff to proceed and prove mortgage bonds where it chooses not to
proceed therewith.
After all the plaintiff is
dominis
litis
and at its own peril chooses
not to proceed therewith. I might mention that it is difficult to
understand why the defendants object
to plaintiff not proceeding with
those claims where the defendants in any event seek a dismissal of
those claims in its present
plea.
[12]
I therefore am inclined to allow the
amendments sought by the plaintiff. The plaintiff seeks an indulgence
and is to pay the costs
of the defendants in my view. In respect of
the counter-application I see no reason why it should not be granted.
The response
in respect of the request for further particulars and
further discovery in terms of Rule 35(3) has been outstanding since
2020.
[13]
Both parties made use of two counsel of
which one is a senior counsel and move for cost orders which would
include the cost of the
employment of two counsel.
[14]
I therefore make the following orders:
1.
Leave
is granted to the plaintiff
in
the main action (case no 3955/2019)
to
effect the amendment to its existing particulars of claim in the
respects and to the extent contained in plaintiff's notice of
intention to amend dated 23 December 2021.
2.
The
reference to the word "second" in paragraph 68 of the
plaintiff's notice of intention to amend dated 23 September
2021 is
removed and substituted with "third".
3.
Plaintiff
is ordered to furnish a reply to defendant's notice in terms of rule
35(3) dated 27 October 2020, within 20 days of this
order.
4.
Plaintiff
is ordered to furnish a reply to defendants' request for further
particulars dated 27 October 2020 within 20 days of this
order.
5.
Failing
compliance by plaintiff with the orders in paragraphs 3 and/or 4
above, leave is granted to defendants to approach this
court on the
same papers duly supplemented for an order dismissing plaintiff's
claim/claims.
6.
Plaintiff
is ordered to pay defendants' costs of the application on a party and
party scale, such costs to include the costs of
two counsel where so
employed.
C.
REINDERS, ADJP
On
behalf of the applicant:
Adv
DJ van der Walt SC
Adv
S Tsangarakis
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN
On
behalf of the
respondent: Adv
H van Eeden SC
Adv B van der Merwe
Instructed
by:
Lovius Block
BLOEMFONTEIN