About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 309
|
|
Absa Bank Limited v Erasmus (482/2022) [2022] ZAFSHC 309 (21 October 2022)
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
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 482/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
IN
THE MATTER BETWEEN:
ABSA
BANKLIMITED
APPLICANT
AND
DANIEL
POCKLINBERG ERASMUS
RESPONDENT
JUDGMENT
BY:
MPAMA,
AJ
DATE
HEARD:
04 AUGUST 2022
DELIVERED
ON:
This
judgment was handed electronically by circulation to the parties'
representatives by email. The date and time for hand-down
is deemed
to be at 12h15 on 21 October 2022.
[1]
This is an application brought in terms
of Rule 28 (4) of the Uniform Rules of Court. The applicant seeks
leave to amend its notice
of motion dated 20 October 2021 in terms of
which the applicant sought the following orders:
"1...............
2
.................
3.
The sheriff of this Honourable Court is
hereby directed to forthwith remove the vehicle from wherever it may
be located and to store
the same in safekeeping pending the
finalisation of main action.
4.
...............
5
"
[2]
The amendment
is
intended
to substitute
the
relief
sought in
the notice of motion with the following
proposed amendments:
"1.
By deleting paragraph 3 and adding the following new paragraphs after
existing paragraph 2 to read as follows:
2.
..........
3.
Directing the Respondent to deliver into
the possession of the sheriff the
2010
MERCEDES-BENZ ML 500 A/T
with engine
number
[....]
and
chassis number
[....]
(the
vehicle)
who
shall then deliver the vehicle to the applicant.
4.
Directing the Respondent to deliver into
the possession of the sheriff the
2014
HONDA BRI 1.2 COMFORT 5 DR A/T
with
engine number
[....]
and
chassis number
[....]
("the
vehicle")
who
shall the deliver the vehicle to the Applicant.
5.
Directing the Respondent to deliver into
the possession of the sheriff the
2012
NISSAN NAV ARA 3.0 DCI LE A/T 4X4 P/U
with
engine number
[....]
and
chassis number
[....]
("the
vehicle") who shall the deliver the vehicle to the Applicant.
6.
Directing the Respondent to deliver
into the possession of the sheriff the
2013
JEEP
GRAND
CHEROKEE
3.0L
V6
CRD
with
engine
-number
[....]
and
chassis
number
[....][....]
("the
vehicle") who shall the deliver the vehicle to the Applicant.
7.
In the event of the Respondent failing
to comply with the contents of paragraph 3 to 6 above within five
days of the service of
this order on the Respondent's Attorneys, the
sheriff is authorised and directed to take the vehicles into his
possession from
wherever he may find the vehicles and return the
vehicles to the Applicant as aforesaid.
8.
The Respondent is ordered to return the
vehicles to the Applicant and the latter is ordered to forthwith
commence marketing the
vehicle in the open public market and dispose
and/or alienate and/or sell it to the person making the highest offer
thereon.
9.
The proceeds of the sale of the vehicle,
less all costs incurred by the Applicant form the date of receipt of
the vehicle including
but not limited to marketing and maintenance of
it, are to be credited to the Respondent's respective accounts so as
to reduce
the outstanding indebtedness owed thereon, alternatively be
placed in an interest - bearing trusting account administered by the
firm Strauss Daly Inc."
[3]
Numerous objections were raised by the
respondent on his notice of objection, however I propose for the sake
of convenience not
to deal with the objections individually as they
are correlated.
The
respondent's primary contention with the proposed amendments is that
if the amendments are allowed, they have a potential of
withdrawing
or disposing of the litigation in the main action proceedings.
In addition the respondent contends that
this application introduces new issues between the parties and is
made with the intention
to prejudice the respondent.
[4]
What was once a harmonious relationship
between the applicant and the respondent has turned into a chequered
history. It is common
cause that the applicant and the respondent
entered into several instalment sale agreements and are now embroiled
in a legal dispute
that has been pending before
this court since 2016 when the applicant
instituted five action proceedings against the respondent. On the
20th October 2021, the
applicant further instituted five
interlocutory applications flowing from the said action proceedings.
The five action proceedings and the five
applications were on 17 February 2022 consolidated under case number,
482/22.
[5]
Before I labour on the specific issues
to be determined in this application it is necessary to set out the
legal principles applicable
to applications for amendments of
pleadings.
[6]
Amendments to pleadings are governed by
Rule 28 of the Uniform Rules of Court. In terms of this rule, a party
wishing to amend any
pleading shall notify the other party of its
intention to amend, clearly and concisely state the grounds of the
proposed amendment.
In the event of an objection by the other party,
the court may subject to the provisions of this rule grant leave to
amend any
pleading at any stage before judgment.
[7]
The
main purpose of allowing an amendment is to obtain a proper
ventilation of the dispute between the parties, to determine the
real
issues between them, so that justice may be done.
[1]
[8]
The
general rules applicable in amendment applications are set out
succinctly in
AFFORDABLE
MEDICINES
TRUST
AND
OTHERS
[2]
as
follows:
"The
principles governing the granting or refusal of an amendment have
been set out in a number of cases. There is a useful
collection of
these cases and governing principles in
Commercial
Union
Assurance
Co Ltd v Waymark NO.
The practical
rule that emerges from these cases is that amendments will always be
allowed unless the amendment is
ma/a tide
(made in bad faith)
or unless the amendment will cause an injustice to the other side
which cannot be cured by an appropriate order
for costs
or
"unless the parties cannot be put back for the purposes of
justice in the same position as they were when the pleading which
is
sought to amend was filed. These principles apply equally to a Notice
of Motion. The question in each case, therefore, is what
do the
interests of justice demand."
[9]
A court hearing an application for an
amendment has discretion whether or not to grant it and such
discretion must be exercised
judicially.
[10]
The purpose of the pleadings is to properly define issues in dispute
between the parties. If a pleading is somehow deficient,
then an
amendment will generally be allowed subject to certain requirements.
[11]
An amendment
will not be granted if there will be
prejudice to the other party which cannot be cured by an order for
costs or postponement.
[12]
In
MOOLMAN
v ESTATE MOOLMAN
[3]
it
was said:
"the
practice rule adopted seems to be that amendments will always be
allowed unless the application to amend is malafide or
unless such
amendment would cause an injustice to the other side which cannot be
compensated by costs, in other words, unless the
parties cannot be
put back for the purposes of justice in the same position as they
were when the pleadings which is sought to
amend were filed."
[13]
The onus rests upon the applicant
seeking an amendment to show that the other party will not be
prejudiced by the amendments.
[14]
The applicant on its heads of arguments
contended that "this application is not malafide and it has not
changed and essentially,
the anticipated amendment, if granted,
constitutes new strategy and does not seek to make up a new
case......"
It
was
argued
by
the
applicant
that
this
application
will
be
"beneficial" to the respondent as it will save him from
incurring costs that flow from the preservation orders as with
the
proposed amendments; the intention is to apply to court for disposal
of the vehicles in question. The applicant referred to
respondent's
objection as objection "without merit" and submitted that
the court should grant the applicant leave to
amend its notice of
motion.
[15]
What is sought to be achieved by the
proposed amendments, if this application succeeds is to substitute a
relief sought for a preservation
order regards the vehicles forming
the gist of the action proceedings with a relief to have the vehicles
handed over to the applicant
and to be disposed of by the applicant
as proposed in amendments.
[16]
The court must determine whether if
leave is granted to amend, the proposed amendments are not malafide,
they are in the interest
of justice and not prejudicial to
prejudicial to the respondent. It must in addition consider if
allowing the amendments will afford
the parties an opportunity to
properly ventilate their dispute.
[17]
The applicant has labelled the
respondent's objections as opposition "without
merit".
The applicant lodged this
application by way of a notice of motion supported by an affidavit
(though it is not mandatory to file
the application with an
affidavit). However, the aforesaid affidavit is silent on why these
objections are labelled as being "without
merit." Even in
court there was no basis laid for referring to these objections as
being without merit.
[18]
The quester for an amendment bears an
onus to show that there will be no prejudice to the other party if
the amendment sought is
granted and that the application is not mala
tide. During arguments, the applicant was invited to address court on
whether the
respondent will not be prejudiced by the proposed
amendments. In response the applicant was grasping at straws, making
reference
to issues that bear little or no relevance to the principle
of prejudice.
[19]
It is the respondent's contention that
should this application succeeds, the applicant will be placed in a
position where it can
choose to abandon or withdraw the action
proceedings as the proposed amendments have a potential of disposing
of the main action.
There
is merit in this argument; the proposed amendments have a potential
of extinguishing issues between the parties without affording
them an
opportunity to properly ventilate their dispute. Should this
application be successful, the applicant will now be armed
with a
relief to dispose of the vehicles, whereas the same vehicles are a
subject of the main proceedings still pending before
this court. In a
way, with these proposed amendments the applicant is trying to
dispose of the issues between it and the respondent
using a "backdoor
approach".
[20]
It
was argued by the respondent that by bringing this application under
this case number (482/2022), the consolidated case, the
applicant
creates an impression that the interlocutory applications (forming
the subject of this application) and the action proceedings
have
been" conflated into a new singular and hybrid quasi
action/application". Reference was made to the decision of
SOLAR
BASIC INDUSTRIES
INC
v ADVANCE TRANSFORMER CO OF SA (PTY) LTD
[4]
where
it
was said "action and an application cannot be
consolidated.
I
align
myself
with
these
sentiments,
action proceedings cannot be consolidated with application
proceedings. However, I have had sight of the consolidation
order
granted by my sister, Judge Opperman. My interpretation of the order
is that five action proceedings were consolidated together
and five
interlocutory applications consolidated together. These proceedings
were then placed under the same case number, 482/2022
for the
purposes of being heard simultaneously.
In
the event that my own interpretation of this order is incorrect, I
find that this issue is immaterial as it is clear to everyone
which
pleadings the applicant seeks leave to amend.
[21]
The application for leave to amend shall
be successful only if the court is satisfied that there will be no
prejudice to the other
party, it is in the interest of justice
and is made
in good
faith.
This
application
does
not
surpass
these requirements and should fail.
[22]
In the circumstances, I make the
following order:
22.1
The application is dismissed with costs.
L.
MPAMA, AJ
On
behalf of the Applicant: Ms
Bester
Instructed
by: Strauss
Daly Inc.
Bloemfontein
On
behalf of the Respondent: Adv.
C Snyman
Instructed
by:
JG
Kriek & Cloete Attorneys
Bloemfontein
[1]
Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
[2004] 1 All SA 129
(SCi6.) at [133].
[2]
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at para
[9]
.
[3]
1927 CPD 27
at [29).
[4]
2006(3) SA 247 (CC) in para [9].