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[2022] ZALMPPHC 63
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Crocodile River West Irrigation Board v Allies Farms SA (Pty) Ltd and Another (4389/2019) [2022] ZALMPPHC 63 (29 November 2022)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 4389/2019
REPORTABLE:
YES
OF
INTEREST TO THE JUDGES: YES
REVISED.
29/11/2022
In
the matter between:
CROCODILE
RIVER WEST IRRIGATION BOARD
PLAINTIFF/APPLICANT
and
ALLIED
FARMS SA (PTY) LTD
FIRST
DEFENDANT/FIRST RESPONDENT
REGISTRAR
OF DEEDS: POLOKWANE
SECOND
DEFENDANT/SECOND RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an opposed application under Rule 28 of the Uniform Rules of
Court in which the Plaintiff
seeks leave from the Court to delete the
whole of its existing Particulars of Claim and replacing them in
totality with a new proposed
Amended Particulars of Claim. The
application is brought after the First Defendant objected to the
proposed amendment.
[2]
In essence this matter is about an
Irrigation Board, being the Plaintiff herein, established and
supposed
to continue operating under the old order water legislation
wherein provision is made for the imposition and recovery of “
rates
and charges
”, endeavoring to make and recover “
water
use charges
” under the new order water legislation.
The
relevant old order legislation is the repealed Water Act 54 of 1956
(“the repealed Water Act”) whilst the relevant
new order
water legislation is the current National Water Act 36 of 1998 (the
NWA) which commenced with effect from 1 October 1998.
[3]
The application for the amendment of the
Plaintiff’s particulars of claim is opposed by the First
Defendant on the grounds that (1) the amended particulars of claim
does not disclose a cause of action and that (2) the proposed
particulars of claim will be vague and embarrassing.
Proposed
Amendment
[4]
The Plaintiff seeks leave from this Court to delete the whole of its
existing Particulars of Claim
and replacing them with the proposed
Amended Particulars of Claim which will then read as follows:
“
PARTICULARS
OF CLAIM
1.
The Plaintiff is the
THE
CROCODILE RIVER WEST IRRIGATION BOARD
,
a separate legal persona:-
1.1. which
was formed in terms of the provisions of Section 73 of the repealed
Water Act, 1956 (Act 54 of 1956) (hereinafter
referred to as “The
repealed 1956 Water Act”) by way of Government Notice 1159 of 6
December 1991, that was published
in Government Gazette 13656 of the
same date;
1.2. which
continues to exist in terms of the provisions of Section 98(2) read
with the provisions of Section 98(3)
of the National Water Act, 1998
(Act 36 of 1998) (hereinafter referred to as “the NWA”);
1.3. that
submitted its application to be converted into a water users
association to the Department of Water Affairs
and Forestry on or
about 9 December 1999, which application has not been finalized by
the Department of Water Affairs and Forestry
alternatively the
Department of Water and Sanitation;
1.4. with
address c/o The Secretary of the Crocodile River West Irrigation
Board, with place of business situated at
Portion 41 (a portion of
portion 43 of the farm Doornfontein 498, Registration Division KQ,
Limpopo Province.
2.
2.1. The
First Defendant is
ALLIED FARMS SA CC
with Registration
Number:
1989/027883/23
being a Closed Corporation with limited
liability Incorporated as such in terms of the Closed Corporations
Act of the RSA, with
profit making as purpose and with registered
address Farm Liverpool, Koedoeskop, Koedoeskop, Limpopo, 0361 whose
full and further
particulars are unknown to the Plaintiff.
2.1.1.
Same has since been converted to a Private Company with limited
liability
and with profit making as purpose registered as such in
terms of the Companies Act of the RSA being
ALLIED FARMS SA PTY
LTD
, with registration number:
2019/330188/07
.
2.2. The
Second Defendant is the registrar of deeds of 101 Dorp St, Polokwane
Central, Polokwane, 0700.
3.
The First Defendant is the registered owner of the agricultural land
known as Portion 28 of the Farm
Olifantskop 425, registration
division KQ, Thabazimbi, Limpopo Province, measuring 45.2398 hectares
held under Title Deed: T58626/2016PTA
and a copy of the Windeed
search is attached hereto as
Annexure “KBR 1”
.
3.1.
Portion 28 is the consolidation of portions 10 and 26 of the said
farm.
4.
The Plaintiff is a water management institution in terms of the
provisions of Section 1 of the NWA and:-
4.1.
continues to exist until it is declared to be a water users
association, or until it is disestablished in terms
of the law by or
under which it is was established, in terms of the provisions of
Section 98(2) of the NWA; and
4.2. is
entitled and directed to recover water use charges and changes in
terms of the provisions of Section 57(1) and
57(2), section 58(1)
read with a series of billing agent agreements between the Department
of Water and Sanitation and the Plaintiff,
and further read with
Section 98(3) of the NWA on immovable property which falls within its
management area (hereinafter referred
to as “irrigation
district”) and which is scheduled in terms of its schedule of
rateable areas for its charges and
in accordance with the prescribed
pricing strategy.
5.
The Plaintiff, in terms of its authority to levy water use charges as
aforementioned, levied water use
charges against the First
Defendant’s property, situated within the Plaintiff’s
irrigation district and specifically
levied water use charges on the
property set out in paragraph 3 hereof, in terms of the NWA since the
promulgation of the NWA,
which amounts included amounts which the
Plaintiff could levy in terms of the Schedule of Rateable Areas in
order to defray expenses
incurred by the Plaintiff in the execution
of its duties in terms of the repealed Water Act, 1956.
6.
As the First Defendant’s property is scheduled in terms of the
Plaintiff’s Schedule of Rateable
Areas, the First Defendant is
liable to pay water use charges to the Plaintiff.
7.
The property as set out in paragraph 3 above is situated in the
irrigation district of the Plaintiff.
8.
At all relevant times the property mentioned in paragraph 3 above is
included in terms of the Schedule
of Rateable Areas prepared by the
Plaintiff for 21.00 hectares from the Crocodile River and is also
scheduled for 0.00 hectares
from a borehole
alternatively
boreholes in terms of the provisions of section 30(2) of the repealed
1956 Water Act.
8.1. The
aforesaid property is still included in terms of the Schedule of
Rateable Areas.
9.
A water use charge, including any interest on such a charge, is a
charge on the land to which the
water use relates and is recoverable
from the current owner of the land in terms of the provisions of
Section 60 of the NWA.
10.
The Plaintiff levied water use charges according to its Schedule of
Rateable Areas against the property mentioned
in paragraph 3 hereof
for the period from 31/03/2013 up to 30/04/2021 as is set out in
Annexure “
KBR 2
” hereto, which amounts were not
paid by the Defendant.
11.
The amount of R 459 403,48 as is calculated in “KBR 2”
includes the amount of water use charges
as well as water use charges
that were levied by the Plaintiff in accordance to the Plaintiff’s
Schedule of Rateable Areas
since 31/03/2013 up to 30/04/2021 in
regard to both the Department of Water Affairs as well as the
Crocodile River West Irrigation
board’s account number 177.
12.
In terms of the provisions of the NWA the Plaintiff may charge
interest on the outstanding water use charges
and amounts levied in
terms of the Schedule of Rateable Areas at a higher rate than the
normal mora interest rate that is published
from time to time in the
Government Gazette.
12.1. In terms of
Government Notice 1183, that was published in Government Gazette
30559 of 14 December 2007, the current interest
rate on outstanding
water use charges is 16% per annum since 14 December 2007.
13.
Notwithstanding demand, the First Defendant has failed and/or
neglected to pay the amount specified in the
demands to the First
Defendant.
14.
The Honourable Court has jurisdiction as the property described
hereinbefore is situated within the jurisdiction
of this Honourable
Court and as the water use charges were levied in connection with the
immovable property set out in paragraph
3 above,
alternatively
the aforesaid property is the main place of business of the First
Defendant.
Grounds
of objection to the intended Amendment
[5]
The First Defendant raised six grounds of objection to the proposed
amendment.
The
first two grounds of objection are that:
5.1. The
proposed Particulars of Claim does not disclose the cause of action
and is therefore excipiable; and
5.2. The
proposed Particulars of Claim lacks averments which are necessary to
sustain an action and is therefore excipiable.
[6]
The third up to the sixth grounds of objection are based on the
allegation that the proposed Particulars
of Claim is vague and
embarrassing.
[7]
For the purposes of this matter I deal with the first two grounds of
objection relating to the
cause of action. In my view the outcome of
this aspect will be dispositive of the case before me: The issue as
to whether the proposed
Particulars of Claim is vague and
embarrassing will not take the case any further.
Basis
of Objection to Amendment
[8]
The First Defendant’s basis of objection with which I proceed
to deal are the following:
1.
That the proposed Particulars of Claim does not disclose a cause of
action, and is therefore excipiable,
because:
1.1. The Plaintiff
alleges in paragraph 4.2. that it is entitled and directed to recover
“
water use charges
” in terms of section 57(2) read
with
section 98(3)
of the
National Water Act 36 of 1998
(“
the
NWA
”);
1.2.
Section 57(2)
of the
NWA provides that, within a “
specific
water
management area
”, “[
water use
] charges”
may be made by and are payable to the “
relevant
water management institution
”;
1.3. a “
water
management area
” is defined in
section 1
of the NWA to mean
an area established as a management unit
in the National Water
Resource Strategy
within which a
Catchment Management Agency
will conduct the protection, use, development, conservation,
management and control of water resources;
1.4. The Irrigation
District of the Plaintiff was neither so established nor is the
Plaintiff a Catchment Management Agency as contemplated
in the NWA;
1.5.
Section 98(3)
of the
NWA in substance provides for the continuous existence of the
Plaintiff as an Irrigation Board under the repealed Water
Act 54 of
1956 (“
the repealed Water Act
”) and does not
empower or authorise the Plaintiff to impose or recover “
water
use charges
” in terms of or under the NWA;
1.6. The Plaintiff is
thus not the relevant water management institution as contemplated in
section 57(2) of the NWA;
1.7. In the premise, the
Plaintiff has no authority and is not empowered to impose or recover
“
water use charges
” in terms of section 57(2) of
the NWA; and
1.8. The Plaintiff does
not rely on any other legal authority to impose or recover “
water
use charges
” in terms of or under the NWA.
2.
That the proposed Particulars of Claim lacks averments which are
necessary to sustain an action, and
is therefore excipiable, because:
2.1. Insofar
as the Plaintiff purports to claim “
rates and charges
”
under the repealed water Act, the Plaintiff does not make the
necessary allegations of fact to bring the Plaintiff within
the scope
and ambit of section 90-91 of the repealed Water Act;
2.2. Insofar
as the Plaintiff purports to claim “
water use charges
”
under the NWA, the Plaintiff does not make the necessary allegations
of fact to bring the plaintiff within the scope and
ambit of section
57(1)(b) read with section 59(2) of the NWA; and
2.3. In the
result, the Plaintiff does not make the necessary allegations which
establish the liability of the First
Defendant under or in terms of
either the provisions of the repealed Water Act or the NWA.
The
Principles regarding Adjudication of Applications for Amendment
[9]
In deciding whether to grant or refuse an application for an
amendment the Court exercises a discretion
and, in so doing, leans in
favour of granting it in order to ensure that justice is done between
the parties by deciding the real
issues between them.
[1]
If
the grounds of objection are appropriate to an exception, like in the
present case, the application for amendment should be dealt
with as
if it is an exception.
[2]
[10]
Accordingly, this application will be dealt with as one of exception
as the basis of the objection to the
amendment is that it will make
the particulars of claim either vague and embarrassing or that it
will not sustain a cause of action.
[11]
It is a first principle in matters of exception that, if evidence can
be led which can disclose a cause of
action alleged in the pleading,
that particular pleading is not excipiable. A pleading is only
excipiable on the basis that no
possible evidence led on the
pleadings can disclose a cause of action.
[3]
As
appears from the proposed amended particulars of claim in the present
matter, the Plaintiff relies on the provisions of the NWA,
specifically in paragraphs 4.2. to 12 of the Particulars of Claim.
Therefore,
if the Plaintiff is able to present evidence at the trial that it was
“directed” by the Department in terms
of the billing
agency agreement to collect water use charges due by the First
Defendant on behalf of the Department, the particulars
of claim
disclose a cause of action as pleaded in paragraph 4.2. of the
particulars of claim.
[12]
In adjudicating an exception a distinction between background
information and
facta probanda
and between
facta probanda
and
facta probantia
should be borne in mind.
In
South
African National Parks v Ras
[4]
at 386 it was stated:
“
It
is true that, in order to disclose a cause of action, the plaintiff’s
particulars of claim must set out ‘…
every fact which
would be necessary for the plaintiff to prove, if traversed, in order
to support his right to judgment of the
Court.
It
does not comprise every piece of evidence which is necessary to prove
its fact
but
every fact which is necessary to be proved’. (See McKenzy v
Farmers’ Co-operative Meat Industries Limited
1922 AD 16
at
23). However, this relates only to
material
facts
and,
in considering an exception,
a
distinction must be drawn between the facts which must be proved in
order to disclose a cause of action (the facta probanda) and
the
facts which prove them (the facta probantia)
.”
[13]
As to the interpretation of the proposed amendment, the Court in
Lewis
v Oneanate (Pty) Ltd & Another
[5]
said the following:
“
Since
these are proceedings on exception, it must be borne in mind that the
appellant has the duty as excipient to persuade the
Court that upon
every interpretation which the Particulars of Claim can reasonably
bear, no cause of action is disclosed.”
[14]
When it is averred that a pleading lacks averment which can sustain a
cause of action, the excipient has
to show that the pleading is
excipiable on every interpretation which can reasonably be connected
therewith, as stated in
Koth Property Consultants CC v Lepelle
Nkumpi Local Municipality
2006 (2) SA 25
(T) at 30 E –
31 A
.
Therefore,
the pleading is excipiable if no possible evidence led on the
pleading can disclose a cause of action.
[15]
What a defendant needs to reply to, is the material averments
regarding the cause of action, that is, the
facta probanda
, in
other words the essential factual averments needed to establish such
a cause of action.
A
distinction must be drawn between the
facta
probanda
,
which are the facts which the Defendant must plead on and the
facta
probantia
which
are the secondary allegations that the Plaintiff will rely on in
Court (and will prove by way of evidence) to prove the primary
factual allegations which are essential to establish the cause of
action.
[6]
[16]
I conclude this principle regarding the exception by stating that
facta probanda
do not belong in the particulars of claim. They
do not form part of the essential averments which defendant is
required to meet
in his plea. He can therefore not insist on their
being provided in the particulars of claim and can only obtain them,
after having
filed his plea, by way of a request for discovery or a
request for further particulars for trial.
Whether
the proposed amendment will make the Particulars of Claim not sustain
a cause of action
[17]
The first objection is that section 98(3) of the NWA provides for the
continuous existence of the Plaintiff
as an irrigation Board under
the repealed Water Act and does not empower or authorise the
Plaintiff to impose or recover “water
use charges” in
terms of or under the NWA.
That
the Plaintiff is thus not the relevant water management institution
as contemplated in section 57(2) of the NWA, and therefore
the
Plaintiff has no authority and is not empowered to impose or recover
“water use charges” in terms of section 57(2)
of the NWA.
[18]
The Plaintiff’s counter-argument on the
above objection is that the Plaintiff’s irrigation district
continues to exist and that it is not necessary that the Plaintiff’s
irrigation district be established as a water management
in terms of
the provisions of the NWA for it to levy water use charges. That the
Plaintiff’s irrigation district is situated
in one of the water
management areas that was designated by the Minister in terms of GN
1056 of 16 September 2016.
The
Plaintiff argues that an irrigation Board such as the Plaintiff is
authorised by the provisions of section 57(2) read with item
23(b) of
Schedule 4 of the NWA to levy water use charges.
[19]
For reasons that will appear later in this judgment, I am of the view
that the First Defendant’s objection
that the Plaintiff’s
irrigation district was never established as a water management area
and that section 98(3) of the NWA
does not empower or authorise the
Plaintiff to impose or recover water use charges has no merit.
[20]
Before I deal with the provisions of sections 57, 58 and 98 of the
NWA it is appropriate to note the definition
of a “
water
management institution
”.
In
terms of section 1 of the NWA, a water management institution is
defined thus:
“
means
a catchment management agency, a water user association, a body
responsible for international water management or
any
person who fulfills the functions of a water management institution
in terms of this Act
.”
(my emphasis)
The
Plaintiff submits that it is a person who fulfills the functions of a
water management institution in terms of the NWA. I agree.
[21]
Sections 57 and 58 of the NWA provide that:
“
57.
Application of pricing
strategy
. –
(1) Water use charges –
(a) may be
made –
(i)
within a specific water management area; or
(ii)
on a national or regional basis; and
(b) must be
made in accordance with the pricing strategy for water use charges
set by the Minister.
(2)
Charges made within a specific water management area may be made by
and are payable to the relevant water
management institution.
(3)
Charges made on a national or regional basis –
(a) may
be made by the Minister and are payable to the State; and
(b) may
be apportioned between different water management areas according to
the extent of the specific benefits
which each water management area
derives or will derive from the water uses for which the charges are
made.
(4) Any
person liable to pay water charges to a water services institution as
defined in the Water Services Act,
1997 (Act No. 108 of 1997), for
water supply services or sanitation services may not be charged for
those services in terms of
this Act.
(5) No
charge made under this Act may be of such a nature as to constitute
the imposition of a tax, levy or duty.
58.
Recovery of water use charges
. –
(1) The Minister may direct any water management institution to
recover any charges for water use made by the Minister
under section
57 (1)(a) from water users within its water management area or area
of operation, as the case may be.
(2) A
water management institution which has been directed to recover any
such charges may retain such portion
of all charges recovered in
order to recompense it for expenses and losses, as the Minister may
allow.
(3) A
water management institution which has been directed to recover any
such charges –
(a) is
jointly and severally liable to the state with the water users
concerned; and
(b) may
recover any amounts paid by it in terms of paragraph (a) from the
water users concerned.
[22]
Section 57 (2) of the NWA authorises a water management institution
to make charges within a specific water
management area and which may
be made by and are payable to the relevant water management
institution.
Section
58(1) of the NWA provides that the Minister may direct any water
management institution to recover any charges for water
use made by
the Minister under section 57 (1)(a) from water users within its
water management area or area of operation as the
case may be.
In
terms of section 58(3) of the NWA the Plaintiff, as a water
management institution, is jointly and severally liable to the State
with the water users in its irrigation district for such water use
charges and in terms of this section it may recover any amounts
paid
by it to the Department in terms of section 58 (3)(a) of the NWA from
the water users concerned.
[23]
Section 98 of the NWA provides as follows (underlining for emphasis):
“
98.
Transitional provisions for certain existing organisations.
(1) This section
applies to –
(a)
any irrigation board or
subterranean water control board established by or deemed to be an
irrigation board in terms of any law
in force immediately before the
commencement of this Act;
(b)
the Kalahari West Water Board, established by Government Notice No.
143 of 13 August 1982;
(c)
the Karos-Geelkoppan Water Board, established by Government Notice
No. 145 of 7 October 1983; and
(d)
the Kalahari East Water Board, established by Government Notice No.
2233 of 4 November 1988,
each of which is a
board for the purposes of this section.
(2)
A board continues to exist until it is declared to be a water user
association in terms of subsection (6)
or until it is disestablished
in terms of the law by or under which it was established, which law
must, for the purpose of such
disestablishment, be regarded as not
having been repealed by this Act.
(3) Subject to
subsection (4)-
(a)
the name, area of operation, management, property, rights,
liabilities, obligations, powers and duties of a board remain the
same
as immediately before the commencement of this Act
;
(b)
this section does not affect continuity, status, operation or
effect of any act or omission of a board, or of any bylaw made by a
board, before the commencement of this Act
;
(c)
any person holding office with a board when this Act commences
continues in office for the term of that person’s
appointment;
and
(d)
if a position becomes vacant prior to the declaration of the board as
a water user association, the board
may fill the vacancy according to
the procedures laid down by or under the law which applied to that
board immediately before the
commencement of this Act.
(4)
Within six
months
of the commencement of this Act, a board must prepare and
submit to the Minister a proposal, prepared according to section 91
,
to transform the board into a water user association
.
(5) The Minister may
accept the proposal contemplated in subsection (4), with or without
amendments, or reject it.
(6) If the Minister
accepts the proposal, the Minister must by notice in the Gazette –
(a)
declare the board to be a water user association;
(b)
give it a name;
(c)
determine its area of operation; and
(d)
approve its constitution.
(7) Upon the
publication of a notice under subsection (6), every property, right
and liability of the board becomes a property,
right and liability of
the relevant water user association.”
[24]
The NWA draws a distinction between the old order (provided for in
section 98 of the NWA, allowing for the
old order legislation and the
irrigation Board to continue in operation in a transitional period)
and the new order (providing
for a fundamentally-transformed law in
respect of water resources and the new dispensation of water
management institutions).
As
already stated earlier in this judgment, the Plaintiff is for all
intents and purposes a water management institution.
[25]
In
S v Mostert and Another
2010 (2) SA 586
(SCA) at
paragraph [16]
it was said that:
“
[16]
Thus, although an irrigation board might continue to exist and
operate with the various duties and obligations it had under
the 1956
Act despite the coming into operation of the 1998 Act, it does so by
reason of the provisions of the latter which clearly
apply within the
irrigation district of each such irrigation board and regulates the
use of water.
Accordingly, anyone
who commits an offence envisaged by s151 of the 1998 Act may be
charged under that Act, even if the offence
is committed within the
irrigation district of an irrigation board established under the 1956
Act which continues to exist and
operate by reason of s98 of the 1998
Act.”
[26]
The clear intention of the provisions of section 98 of the NWA is
that the existing water irrigation boards
should continue in
operation until they are restructured as water user associations.
[27]
By virtue of section 98(2) of the NWA, and subject to section 98(4)
of the NWA, the plaintiff continues to
exist as an irrigation board
until it is declared to be a water user association in terms of
section 98(6) of the NWA, or until
it is disestablished in terms of
the repealed Water Act, which, for the purposes pf such
disestablishment, is regarded as not having
been repealed by the NWA.
[28]
The plaintiff on or about 9 December 1999 duly prepared and submitted
its application in terms of section
98(4) of the NWA to be
transformed into a water association with the Minister responsible
for Water Affairs (the “Minister”)
and the Department of
Water and Sanitation (the “Department”), which was
previously known as the Department of Water
Affairs and Forestry.
[29]
The plaintiff has not been disestablished under the repealed Water
Act, nor has it been transformed to a
water user association under
and in terms of section 98(3)(a) of the NWA.
[30]
The name, area of operation, management, property, rights,
liabilities, obligations, powers and duties of
the plaintiff remain
the same as immediately before the commencement of the
National Water
Act. In
terms of
section 98
(3)(b) of the NWA the provisions of
section 98
of the NWA do not affect the continuity, status, operation
or effect of any act or omission of the plaintiff, or any bylaw made
by the plaintiff, before the commencement of the NWA.
[31]
The plaintiff’s rights, liabilities, obligations, powers and
duties under the repealed Water Act and
the Regulations promulgated
thereunder, remain in place until such time as the plaintiff is
disestablished or transformed to a
water user association.
[32]
I am of the view that as a result of the provisions of section 98 of
the NWA the Plaintiff still has all
these powers and is entitled to
exercise those powers, which form part of its cause of action as set
out in the proposed amended
particulars of claim.
[33]
I agree with the submission made by Counsel for the Plaintiff that
section 98 of the NWA was inserted to
prevent a situation where water
users in an irrigation district could escape liability for water use
charges and other charges
in sections 57 (1) and 57 (2) of the NWA
until such time as the irrigation board within whose district they
fall, has been either
converted to, or replaced by a water user
association.
It
was also inserted to protect the existing infrastructure within such
an irrigation district and to ensure a smooth transition
in the new
order.
Conclusion
[34]
The Plaintiff fulfills part of its functions, namely those functions
which survive in the interim period
from the repealed Water Act,
specifically in terms of section 98 (2) and (3) of the NWA. In
levying those charges, which are the
same charges which a water
management institution makes in terms of section 57 (2) of the NWA,
the Plaintiff is clearly in the
position of a person “who
fulfills the functions of a water management institution in terms of
this Act”.
[7]
[35]
The First Defendant’s interpretation of the provisions of the
NWA would create the absurd situation
that water users within the
irrigation board’s area of jurisdiction would in the interim
period be entitled to free water.
This is the very situation that’s
section 98 of the NWA seeks to prevent.
It
is trite law that a statute must be interpreted in such a way that it
will not have absurd consequences.
A
sensible meaning is to be preferred to one that leads to insensible
or unbusinesslike results.
[8]
[36]
A substantial part of the First Defendant’s opposition is based
on its failure to adequately distinguish
between background
information and
facta probanda
and
facta probantia
.
The
First Defendant’s complaint that “no details of
particularity are found” in the proposed amendment is not
a
proper ground for objection in terms of the proper test to be applied
in adjudicating an exception to a pleading. The First Defendant’s
problem herein is to insist on facts which should be obtained by way
of a request for further particulars for trial or a request
for
discovery.
[9]
[37]
Applying the proper test, I am of the view that the proposed
amendment is not excipiable and that there is
no merit in the
opposition to the application to amend the Plaintiff’s
particulars of claim.
Order
[38]
In the result the following order is granted:
1.
The Plaintiff is granted leave to amend its particulars of claim in
accordance with the Plaintiff’s
notice of intention to amend
dated 24 May 2021 and further amended in the Plaintiff’s notice
in terms of Rule 28 dated 21
October 2022.
2.
The Plaintiff is directed to deliver its amended particulars of claim
within 5 (five) days after the
granting of this Order.
3.
The First Defendant is ordered to pay the Plaintiff’s costs of
the application for amendment, such
costs to include costs of two
Counsel.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO DIVISION
APPEARANCES
Heard
on
:
16 November 2022
Judgment
delivered on
:
29 November 2022
For
the Plaintiff/Applicant
:
Adv. H S Havenga SC
:
Adv. J H A Saunders
Instructed
by
:
Lourens Attorneys
c/o
Du Toit Swanepoel Steyn & Spruyt Attorneys
For
the First Defendant/First Respondent
:
Adv. M M Oosthuizen SC
Instructed
by
:
Ross & Jacobs Inc.
c/o
De Bruin Oberholzer Inc.
[1]
Caxton
Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(AD) at 565 D – J.
[2]
See
Harms
Civil Procedure in the Superior Courts
,
B – 189;
De
Klerk and Another v Du Plessis and Others
1995
(2) SA 40
(TPD) at 43 I – J.
[3]
McKelvey
v Cowen NO
1980
(4) SA 525
(Z) at 526 D –E.
[4]
[2001]
4 ALL SA 380
(C) at 386.
[5]
[1992] ZASCA 174
;
1992
(4) SA 811
(AD) at 817 F – G.
[6]
See
Jowell
v Bramwell-Jones and Others
1998
(1) SA 836
(W) at 903 A – B.
[7]
Refer
to definition of “water management institution” in
paragraph [20] above.
[8]
See
Natal
Joint Municipal Pension Fund v Emdumeni Municipality
2012
(4) SA 593
(SCA) paragraphs [18] to [19].
[9]
See
for example,
Afgris
Bedryfs Beperk v Merwede Boerdery BK & Others
[2014]
JOL 316987
(FB), Case No. 4121/2009 delivered on 23 December 2010.