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[2022] ZAFSHC 33
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Man In One CC v Zyka Trading 100 CC and Others (5335/2014) [2022] ZAFSHC 33 (3 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 5335/2014
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
MAN
IN ONE CC
Applicant
and
ZYKA
TRADE 100 CC
First
Respondent
YC
& A TOOLS
CC
Second
Respondent
JUDGMENT
BY:
MTHIMUNYE
,
AJ
HEARD
ON:
17
FEBRUARY
2022
DELIVERED
ON:
03 MARCH 2022
[1]
The applicant, Man In One CC, seeks an order in terms of Rule 28 (4)
of the Uniform
Rules of Court to amend its particulars of claim dated
17 September 2014. The first and second respondents, Zyka Trade 100
CC and
Y.C Tools CC respectively, object to the amendment and submit
that the application be dismissed with costs.
[2]
The parties hereto are involved in a protracted litigation that has
spanned seven
years, which litigation emanates from a contract
purportedly entered into by and between the applicant and the first
respondent
on or about 20 March 2013. In terms of the said contract,
the applicant would provide security services to the first respondent
at the Theronia Waste Treatment Plant for a fixed period of three (3)
years. The said contract is attached to the papers and is
referred to
throughout this judgement as Annexure “A”. The second
respondent had signed a Deed of Surety for the first
respondent in
respect of the said contract. Due to circumstances tagged by the
first respondent as ‘unforeseen’, the
first respondent on
01 August 2013, sent a letter to the applicant terminating the
contract with immediate effect. The cancellation
was not accepted by
the applicant.
[3]
On 3 December 2014, the applicant issued summons against the
respondents claiming
payment of an amount of R1 810 000.00
based on payment it would have received from the first respondent in
the period
from June 2013 to August 2014 in terms of the fixed term
agreement, had it not been for the alleged unlawful cancellation
thereof.
After the exchange of pleadings and pre-trial procedures,
the trial began on 13 April 2021. During evidence in chief of Mr
Mehi,
the applicant’s representative, the applicant requested a
postponement to effect amendments to its particulars of claim, which
postponement was granted.
[4]
On 28 Jul 2021 the Applicant filed a Notice of Intention to Amend its
particulars
of claim in terms of Rule 28 to which the Respondents
objected. This respondents’ objection prompted the applicant to
bring
this application in terms of Rule 28(4). The respondents argue
that the proposed amendments, if allowed, will render the particulars
of claim vague and embarrassing and consequently excipiable for
alleged want of compliance with Rule 18(4) and Rule 23(1) of the
Uniform Rules of Court. Although the respondents listed eleven
reasons in their objection, most are collapsible under the rendering
of the particulars of claim vague and embarrassing, excipiable, and
failure to disclose the parties’ common intention. The
respondents’ objections can be summarised follows:
(i)
That what the applicant seeks is rectification of the contract and in
order
to succeed therewith, the applicant must prove that there was
an agreement between the parties, which agreement was reduced to
writing which reduction was the intention of parties; and that the
written document did not reflect the common and continuing intention
of the parties correctly; and there was a drafting mistake which may
have been as a result of a bona fide mutual error. The respondents
aver that at no stage did the first respondent enter into an
agreement with the applicant on the terms as reflected in Annexure
“A”. They argue that the first respondent had a verbal
agreement with the first respondent which was not reduced into
writing and it was never the parties’ intentions to reduce same
to writing. They argue further that the error referred by
the
applicant is not
bona fide
as it (the applicant) ought to have
been aware that Man in One Security Guards was not its name nor was
it a registered company.
(ii)
That the applicant has failed to allude to any facts which
demonstrate a triable
issue foreshadowed by any evidence which it
will lead to demonstrate that rectification is warranted and should
be granted in the
trial action of Annexure “A” to its
particulars of claim.
(iii)
That granting the applicant the proposed rectification will render
the applicant’s
particulars of claim excipiable on the basis
that although the applicant seeks that the name “Zyka Trade
100, a company incorporated
under the Companies Act” be amended
and substituted to read “
Zyka Trade 100, a close
corporation incorporated under the Close Corporation Act”,
,
it does not seek an amendment in the same Annexure “ A”
that refers to “
a Resolution having being passed by the
Board of Directors of Zyka Trade 100”
which speaks to a
company since close corporations do not have directors. Consequently,
if the amendment is allowed, it would result
in the applicant’s
particulars of claim being incongruent with Annexure “A”.
(iv)
That the amendment sought will not cure the fact that the contract
the applicant seeks
to enforce is vague and unenforceable at law and
that the averments made in regard thereto in the Particulars of Claim
are excipiable
in that, amongst others, paragraph 1 of Annexure “A”
does not indicate the number of guards that were to keep watch;
the
amount payable, although mentioned in the Particulars of Claim, was
inserted by manuscript on Annexure “A” and
was not
countersigned by either party as a material term of the contract; the
contract fails to disclose the place where it was
entered into and to
indicate who was duly authorised to represent the First Defendant in
concluding Annexure “A”; it
also does not indicate the
names of persons who concluded Annexure “A” on behalf of
the first respondent. As a result,
thereof, the respondents argue
that the contract fails to indicate the common intentions of the
parties to conclude Annexure “A”.
(v)
That the Deed of Suretyship relied on by the applicant against the
second respondent
refers to an undertaking by the second defendant to
make payment to ‘Man in One Security “Company”. If
the amendment
is allowed, the applicant’s claim against the
second respondent will be excipiable as there will be no cause of
action made
out against the second respondent.
[5]
The applicant submits that the amendments do not seek to introduce a
new party to
the action, in other words, the parties to the action
will not change; no new cause of action will be introduced, no
withdrawal
of any admissions is envisaged, no prejudice will be
suffered by the respondents if the amendment is allowed. Further, the
applicant
has no
mala fides
in seeking an amendment at this
late stage of the litigation.
[6]
It argues that it is explicitly alleged in the envisaged paragraph
that Mr Domingo
Mathebula was the first respondent’s employee
and that before Annexure “A” was sent to Welkom, it was
signed
(executed) by a duly authorised representatives and/or
employees. The lack of details in respect of the date of his
employment
therefore does not render the plea excipiable.
[7]
The applicant further avers that the objection relating to Mathebula
having referred
to the applicant as a company and not a close
corporation is irrelevant and that the reasons why Mr Mehi signed the
incorrectly
worded agreement need not be pleaded as that is
facta
probantia; the
relevant
facta probanda
have been pleaded
as required by precedent.
[8]
In respect of the Deed of Surety, the applicant avers that the
objection is irrelevant
as no amendment is proposed in the Notice of
Intention to amend paragraphs which deal with the second respondent
and that in any
event, the respondents in their plea admitted that a
Deed of Suretyship was concluded by Mr Y C Naidoo on behalf of the
second
respondent; and that the respondents made the required
admissions in the Rule 37(4) Pre-trial questionnaire dated 16 August
2016.
[9]
The applicant avers that most objections are
facta probantia,
which need not be pleaded and state that it is the lack of amendments
that would render the already existing particulars of claim
excipiable. It argues that the respondents have no legitimate
grounds to object to the current proposed amendments and
rectifications
of Annexure “A”.
[10]
The applicant further clarifies, which clarification is what I
believe is what is before this
court to determine, that at this
stage, all it seeks is the amendment of the particulars of claim and
not the rectification of
Annexure “A”. The issue of
the rectification will be dealt with at trial when
viva voce
evidence is led. In this judgment I will then focus on whether or not
the applicant can amend its particulars of claim at this
stage.
[11]
Rule 28 of the Uniform Rules of Court reads:
“
28 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.
[12]
One of the grounds of objection by the respondents is that that
amendment will render the particulars
of claim excipiable for want of
compliance with Rule 23(1) which reads:
“
23 Exceptions and
Applications to Strike Out
(1)
Where any pleading is vague and embarrassing or lacks averments which
are necessary to sustain an action or defence, as the case may be,
the opposing party may, within the period allowed for filing
any
subsequent pleading, deliver an exception thereto and may set it down
for hearing in terms of paragraph (f) of subrule (5)
of rule (6):
Provided that where a party intends to take an exception that a
pleading is vague and embarrassing he shall within
the period allowed
as aforesaid by notice afford his opponent an opportunity of removing
the cause of complaint within 15 days:
Provided further that the
party excepting shall within ten days from the date on which a reply
to such notice is received or from
the date on which such reply is
due, deliver his exception.”
[13]
Although Rule 28 does not stipulate the circumstance under which an
amendment should be allowed,
sufficient precedent has provided
guidance on how courts should approach applications to amend. It is
trite that a court hearing
an application for an amendment has a wide
discretion, which discretion should be exercised judicially
(Embling
v Two Oceans Aquarium CC
[1]
).
In exercising this discretion, the court should lean in favour
of granting an amendment to ensure that justice is done
between the
parties by deciding the real issue between them
(Commercial
Union Assurance v Waymark
[2]
).
The
locus
classicus
on approach to amendments is
Moolman
v Estate Moolman
[3]
where the court held:
“
The practical rule
adopted seems to be that amendments will always 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, or in other words unless the parties
cannot be put back for
the purpose of justice in the same position as they were when the
pleading which it is sought to amend was
filed”
[14]
The respondents have argued that a party seeking an amendment at a
late stage does not do so
as a matter of right, but is seeking an
indulgence from the court and there is no justification to do so
after a seven-year delay.
It has however been held that in the
absence of prejudice to an opponent, an amendment may be granted an
any stage before judgment,
despite such delay and however careless
the mistake or omission may have been (
Krogman
v Van Reenen
[4]
).
It is also my view that although the trial had commenced, the parties
are not ‘deep’ into the trial in that it was
on its first
day and the applicant was leading evidence in chief from its first
witness when it sought a postponement for purposes
hereof. In
Trans-Drakensberg
Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd
and Another
[5]
the court held that:
“
In my judgment, if
a litigant has delayed in bringing forward his amendment, this in
itself, there being no prejudice to his opponent
not remediable in
the manner I have indicated, is no ground for refusing the amendment”
[15]
Counsel for the respondents argued that the amendment will amount to
introducing a new cause
of action which will be prejudicial to the
respondents. I am persuaded that this has been sufficiently dispelled
in the assertion
that no new cause of action is being introduced by
the applicant. The cause of action remains the same i.e. Annexure “A”
which the respondents have pleaded to in their plea and special
plea. Counsel for the respondents further argued that the
respondent may have to look for witnesses that may be difficult to
locate given the passage of time. I am not convinced that this
is the
case, but even if it were, I am of the view that it is prejudice that
can be cured by a cost order and will have taken this
into
consideration in my cost order.
[16]
Guided by the principles laid out in the cases cited above, I hold
the view that granting this
application will ensure a proper
ventilation of the real issues between the parties. That is the
primary object of amendments as
articulated in
Cross
v Ferreira
[6]
.
[17]
Consequently, I make the following
order
:
1.
The Applicant is granted leave to ament its particulars of claim
in
accordance with its notice of intention to amend dated 17 September
2014
2.
The Applicant shall deliver its amended pages within five (5)
days
from the date of this order.
3.
Costs shall be costs in the course.
D.
P. MTHIMUNYE, AJ
Appearances:
For
the Applicant:
Adv H J Benade
Instructed
by
Symington & De Kok
Bloemfontein
For
the First Respondent:
Adv
A
Nankan
A
B Pretorius & Partners
Bloemfontein
[1]
2000 (3) SA 691
(C) 694G-H
[2]
1995
(2) SA 73
(TkGD) at para 77 F-I
[3]
1927
CPD 27
at 29
[4]
1926
OPD 191
, 194-195
[5]
1967 (3) SA 632
(D) at para 642H
[6]
1950 (30 SA 443
(CPD at para 447