Nala Local Municipality v LFC Meule (Pty) Ltd (617/2018) [2022] ZAFSHC 52 (14 March 2022)

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[2022] ZAFSHC 52
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Nala Local Municipality v LFC Meule (Pty) Ltd (617/2018) [2022] ZAFSHC 52 (14 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 617/2018
In
the matter between:
NALA
LOCAL
MUNICIPALITY
Applicant
And
LFC MEULE (PTY)
LTD
Respondent
IN RE:
NALA LOCAL
MUNICIPALITY
Plaintiff
and
LFC MEULE (PTY)
LTD
Defendant
HEARD ON:
18 NOVEMBER 2021
JUDGMENT
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 10h00 on 14 March 2022.
[1]
The parties are litigants in a pending trial which arose from an
action
instituted by the applicant against the respondent for payment
of an amount of R11 780 300.77. The amount claimed is in
relation to electricity charges incurred by the respondent as a
result of an illegal electricity connection to the applicant’s
electrical network.
[2]
Fo
r the sake
of convenience I refer to the parties as cited in the action,
plaintiff and defendant respectively.
[3]
The trial served before me on 11, 12 and 14 August 2020. After the
plaintiff led the
evidence of Mr Gabriel Jacobus Rossouw (“Rossouw”)
the parties agreed to stay the trial pending an application for the
amendment
of the plaintiff’s particulars of claim.
[4]
The plaintiff is a municipality and a distributor of electricity in
the area of the defendant’s
business premises. It is the
plaintiff’s case that on 23 February 2016 the parties
[1]
concluded an oral agreement in terms of which the defendant admitted
to have unlawfully connected and consumed electricity from the
plaintiff’s electrical network since 2015 and its liability to pay
for those charges. The defendant failed to make the payment
as agreed
with the result that the plaintiff issued a summons. In the
particulars of claim it is alleged that the average electrical
consumption during the three month period after the installation of
the electrical meter shall be utilised as the basis for the
calculation
of the unlawful usage
[2]
and that the defendant undertook to compensate the plaintiff for the
unlawful electricity consumed for a three year period ending
on 19
October 2016
[3]
while in his
testimony, Rossouw said the highest electrical consumption over a
period of three months will serve as the basis for
the calculation of
the unlawful usage and that the period for which the defendant shall
compensate the plaintiff for the unlawful
electricity usage shall be
calculated for a three year period prior to the installation of the
electricity meter.
[5]
The plaintiff submits that an amendment of the aforesaid plaintiff’s
particulars of claim
including a consequential adjustment of the
claimed amount to an amount of R12 628 440.88 is necessary
to align the particulars
of claim with Rossouw’s evidence.
[6]
Counsel for the plaintiff argues that the defendant will not be
prejudiced by the amendment
as in its Plea, the existence of the
agreement between the parties is disputed and Rossouw has already
been vigorously cross-examined
on all the aspects pertaining to the
sought amendment.
[7]
The application is opposed by the defendant on lengthy grounds which
are essentially
that:
7.1.
The notice to amend was delivered at a late stage of the proceedings
after the trial had run for three
days;
7.2.
The notice to amend was delivered after Rossouw had completed his
testimony in which he contradicted
himself, the pleadings and the
letter that the plaintiff had addressed to the defendant referring to
the terms of the agreement;
7.3.
The new issues raised in the notice of amendment do not have a proper
foundation nor constitute a triable
issue in that Rossouw probably
altered his version when he testified and this is based on his
contradictory testimony despite the
fact that had consulted with the
plaintiff’s attorneys before trial and, the notice to amend was not
filed before the trial commenced
and there was also no explanation
why the plaintiff failed to do so;
7.4.
It is also the defendant’s case that if the amendment is granted
the defendant will be prejudiced as
Rossouw has already completed his
testimony therefore the defendant will not be able to cross-examine
him regarding the proposed
new issues and the reasons why such issues
were not raised in the particulars of claim.
[8]
The defendant’s objection to the lateness of the notice of the
amendment is meritless.
It is trite that a delay in seeking an
amendment is not on its own a sufficient ground for the refusal of an
amendment. Pleadings
can be amended at any stage of the proceedings
before judgment unless the amendment will cause prejudice to the
other party which
prejudice cannot be alleviated by an appropriate
costs order.
[4]
In this matter,
it is not the defendant’s case that it is prejudiced by the late
notice of amendment and that such prejudice cannot
be cured by a cost
order.
[9]
Similarly, the fact that the amendment is sought after a witness had
completed its testimony
and even tendered contradictory evidence is
not, in my view, a basis upon which leave to amend should be refused.
As correctly argued
by counsel for the plaintiff, evidence is
evaluated at the end of the trial after the parties had closed their
respective cases.
[10]
There is also no merit to the defendant’s contention that the
plaintiff has failed to provide an explanation
why the notice to
amend was not filed before trial. On the papers,
[5]
it is clear that the notice of amendment was initiated by Rossouw’s
testimony and it is intended to align the pleadings with his
testimony.
[11]
As regards prejudice, the fact that the defendant would not be able
to cross-examine Rossouw regarding
the proposed new issues does not
establish prejudice in the context of this matter. I’m in agreement
with counsel for the plaintiff
that Rossouw was cross-examined
extensively with regard to the alleged agreement, the terms thereof
and the discrepancies in his
evidence and between his evidence and
the pleadings.
[12]
Taking into consideration that the defendant has disputed the
contract in
toto
it cannot be said that the amendment would
constitute new facts to the extent that the defendant cannot be put
back to the same position
it was before the pleadings were amended.
[13]
In conclusion, having regard to the available facts I’m not
persuaded that the plaintiff’s amendment
is
motivated by malice or that the defendant will be prejudiced
thereby.  I’m of the view that it will be in the interests
of
justice
and also of
the
parties that the sought amendment is granted to enable a proper
ventilation of the dispute between the parties.
[6]
[14]
There was no basis for objecting to the amendment, the defendant
should therefore bear the costs herein.
[15]
In the premises, I hereby make the following order:
1.
Leave is granted to the plaintiff to amend its
particulars of claim in terms of the notice dated 26 March 2012.
2.
The defendant shall pay the costs of this
application.
NS DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:

Adv. PJJ
Zietsman SC
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
Counsel
on behalf Respondent:

Adv. DJ van der Walt SC
Instructed
by:

Symington & De Kok
BLOEMFONTEIN
[1]
The
plaintiff was represented by Messrs Chris Mokomela, Boelie Bothma
and Mr Koos Rossouw. Mr Kobus van
der Linde
represented the defendant.
[2]
Paragraph
3.2.5 of the plaintiff’s particulars of claim.
[3]
Paragraph
3.2.6 of the plaintiff’s particulars of claim.
[4]
Trans-Drankensburg
Bank Ltd
(
under
judicial management
)
v Combined Engineering
(Pty) Ltd
1967(3)
SA 632
(D) at
639.
[5]
Paragraph 6.3 to 6.6 and 7 at 7.1 to 7.5. of the plaintiff’s
founding affidavit.
[6]
Cross
v Ferreira
1950(3)
SA
443
(CPD) at 447.