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[2022] ZAFSHC 169
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Mohokare Local Municipality v Ngxito and Another (1391/2019) [2022] ZAFSHC 169 (14 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1391/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MOHOKARE
LOCAL MUNICIPALITY
Applicant / 2
nd
Defendant
And
MAWETHU
NGXITO
1
st
Respondent / Plaintiff
SIVUYILE
XHANTINI
2
nd
Respondent / Plaintiff
HEARD
ON:
05
MAY 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 16h00 on 14 July 2022.
[1]
In this opposed application, the applicant seeks an order in terms of
Uniform rule
30 for the setting aside of the respondents’
notice of amendment of the particulars of claim on the grounds that
it constitutes
an irregular step.
[2]
On 27 March 2019, the respondents (the plaintiffs) in their
capacities as the owners
or lawful possessors of the farm described
as the Waterloo Farm in Zastron instituted a claim against the
applicant (the second
defendant) and the minister of police (the
first defendant) for payment of an amount of R456 000.00 as
damages on the basis
of theft or loss of the plaintiffs’
livestock and damage caused to the plaintiffs’ farm by the
defendants’ employees
during a raid on the plaintiffs’
farm.
[3]
Apart from defending the action, the second defendant raised an
exception against
the plaintiffs’ particulars of claim on the
basis that they were vague and embarrassing and did not disclose a
cause of action.
The plaintiffs refused to remove the cause of
complaints with the result that the exception was set down for
hearing before Boonzaaier
AJ. On 18 March 2021 judgment (the court
order) was granted in favour of the second defendant on the following
terms:
“
1.
The exception is upheld with costs.
2.
The plaintiffs are given leave to amend the particulars of claim by
way of notice
of amendment within 15 days of the date of this order.
3.
If the amendment is not effected, leave is granted to the Defendant
to approach
this court on the same papers, duly amplified, for an
order dismissing the claim.
4.
The plaintiffs are ordered to pay the costs on a party and party
scale.”
[4]
Pursuant to the court order precisely on 14 April 2021, the
plaintiffs served their
amended particulars of claim on the second
defendant’s attorneys under a notice titled: “
PLAINTIFF’S
NOTICE OF AMENDMENT OF THE PARTICULARS OF CLAIM
” with the
effect that the executor of the deceased estate of the owner of the
farm was joined in the action as the third
plaintiff, sub-paragraphs
5.1. to 5.4. were inserted under paragraph 5 of the initial
particulars of claim and the basis of the
executor’s capacity
to join in the action was set out.
[5]
The notice further records that:
“
KINDLY
TAKE NOTICE FURTHER that these amendments are effected and penned in
terms of the Court Order dated 18 March 2021
.”
[6]
It is the second defendant’s case that the plaintiffs’
notice of amendment
constitutes an irregular step due to lack of
compliance with rule 28 (1), (2) and (3) and the court order in that:
a notice of
the intention to amend containing the particulars of the
amendments and a notification that the first defendant was entitled
to
object to the amendments was not served on the second defendant
prior to the amendments being affected as envisaged in sub-rules
(1)
and (2).
[7]
According to the second defendant, the plaintiffs also failed to
comply with the court
order by failing to serve the notice of
intention to amend within the 15 days’ period prescribed in the
court order. The
notice to amend was due on or before 9 April 2021
whereas the plaintiffs’ purported notice to amend was only
served on 14
April 2021 and no condonation has been sought for the
late service.
[8]
On the other side, the plaintiffs contend that the application has no
merit it must
be dismissed with costs.
[9]
The plaintiffs do not deny that their notice of amendment does not
comply with rule
28. The application is opposed on the grounds that
the notice of amendment was filed in compliance with the provisions
of the court
order. Paragraph 2 of the court order merely states that
‘
the plaintiffs are given leave to amend the particulars of
claim by way of notice of amendment within 15 days of the date of
this
order
.’ The court order does not state that the
plaintiffs must comply with rule 28.
[10]
The plaintiffs submit that a court is entitled to grant orders
contrary to the provisions of
the court rules. In this matter the
court deviated from rule 28 as it was entitled to by authorising the
plaintiffs to amend their
particulars claim by instantly filing the
amended particulars without having served the notice of intention to
amend as contemplated
in rule 28 (1) and (2) and also granted the
plaintiffs 15 days to effect the amendments as opposed to the 10 days
prescribed in
rule 28 (1). A court order supersedes the court rules
and since it has not been rescinded nor varied, it must be complied
with.
[11]
As regards the alleged late filing of the notice of amendment, the
plaintiffs state that the
judgment was electronically transmitted to
the plaintiffs’ attorneys on 23 March 2021 therefore, 15 days
from the date on
which the judgment was received only expired on 14
April 2021. The notice of amendment was accordingly served within the
time prescribed
in the court order.
[12]
The rule pertinent to amendment applications provides thus:
“
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.
(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)
…
[13]
It is undisputed that the plaintiffs’ notice of amendment does
not conform with the terms
of rule 28. The notice was also not served
within 15 days from the date of the order.
[14]
The word “
shall
”
in rule 28 (1) and (2) denotes that compliance with the rule is
peremptory, it must therefore be complied with unless there
are
circumstances justifying non-compliance. See
Gouws
v Venter & CO
1961
(2) SA 329
(N) at 335A-B.
[15]
The provision in paragraph 2 of the court order: ‘
the
plaintiffs are given leave to amend the particulars of claim by way
of notice of amendment within 15 days of the date of this
order’
is in line with the terms of rule 28(1) and (2) which
requires a party wishing to amend its pleadings to notify the
opposing party
by way of notice containing the particulars of the
proposed amendments and conveying that unless a written objection to
the proposed
amendment is delivered within 10 days of delivery of the
said notice the amendment will be effected. Likewise, in terms of
rule
28 (6) a court authorising an amendment is entitled to order
that the contemplated amendment be effected later than the 10 days
prescribed by the rule. I’m not persuaded that the substance of
the court order granted on 18 March 2021 authorised the plaintiffs
to
circumvent the provisions of rule 28.
[16]
There is also no merit to the plaintiffs’ contention that the
purported notice of amendment
was filed within the 15 days stipulated
in the court order. On the plaintiffs’ own submission, the
notice was only served
on the second defendant’s attorneys on
14 April 2021 approximately 18 days from the date of the order.
[17]
For the reasons that
I have set out above, I find that the delivery of the plaintiffs’
notice of amendment of the particulars
of claim is an irregular step.
[18]
In terms of
rule
30
,
the
court has a discretion to set aside an irregular step which would
prejudice the second defendant in the conduct of its case,
see
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others
1999
(2) SA 599
(TPD) at 611C-F;
Trans-African
Co Ltd v Maluleka
1956
(2) SA 273
(A) at 276 F-H and
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992
(4) SA 466
(W) at 496 G. The onus is on the second defendant to set out the
facts upon which prejudice can be established.
[19]
According to the second defendant, prejudice arises from the
consequences of being deprived the
right to object to the amendments
before they were effected. The introduction of a third plaintiff to
the action without a joinder
application also renders the amended
particulars of claim excipiable and it would be cumbersome and costly
to launch an exception
after the amendment has been effected whereas
an objection to the amendment before it is effected would undoubtedly
save time and
costs.
[20]
The plaintiffs countered that the second defendant was not prejudiced
as the notice of amendment
was filed in terms of the court order. I
disagree.
[21]
I’m of the view that the second defendant will be prejudiced if
the irregular notice is
allowed to stand, for the reason that: a
substantial amendment which involves an introduction of a new party
to extant proceedings
can only be granted if it will not cause an
injustice to the affected party which cannot be compensated by a cost
order. The question
of whether or not an injustice may arise can only
be determined through the method prescribed in rule 28 (1) which
provides the
affected party with an opportunity to deliberate on the
amendment before it is effected to consider whether to object to it
or
assent to it. (
Luxavia (Pty) Ltd v Gray Security Services (Pty)
Ltd
2001 (4) SA 211
(W) at 216;
Devonia Shipping
Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening)
1994 (2)
SA 363
(C) at 369F-H;
Imperial Bank Ltd v Barnard NO and
Others
(349/12)
[2013] ZASCA 42
;
2013 (5) SA
612
(SCA) (28 March 2013) at para 8.
[22]
The plaintiffs insist that there is nothing improper about the step
they have taken therefore,
if the irregular notice is allowed to
stand the second defendant will have to embark on a laborious and
costly process of launching
an exception against the amended
particulars of claim which includes serving the plaintiffs with a
notice to provide the plaintiffs
with an opportunity to remove the
cause of complaint within a stated period, the notice must be served
within 10 days of receipt
of the impugned pleading and only after the
dies
for removal of the cause of complainant or response to
the notice has expired can the second defendant launch the exception
application.
See Rule 23.
[23]
In the premises,
I’m
inclined to exercise my discretion in favour of the second
and
set aside the plaintiffs’ notice of amendment as an irregular
step. There is no reason why the costs should not follow
the result
[24]
The following order is granted:
(1)
The
notice of amendment filed by the respondents on 14 April 2021 is
declared an irregular step, it is accordingly set aside.
(2)
The respondents shall pay the costs jointly and severally one paying
the other to
be absolved.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
CJ
Hendriks
Instructed
by: Peyper
Attorneys
BLOEMFONTEIN
Counsel
on behalf of Respondents:
Mr.
TL Ponane
Instructed
by: TL
Ponane Attorneys
BLOEMFONTEIN