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[2022] ZANCHC 28
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Van Dyk N.O. and Others v Minister of Public Works and Another (1967/20) [2022] ZANCHC 28 (20 May 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 1967/20
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
FRANCOIS
JOHANNES VAN DYK N.O.
(In
his Official Capacity as Trustee of the
Mostert
Family
Trust)
First Plaintiff
MADRE
MOSTERT N.O.
(In
his Official Capacity as trustee of the
Mostert
Family
Trust)
Second Plaintiff
WILMA
FRANCIS MOSTERT N.O.
(In
her Official Capacity as trustee of the
Mostert
Family
Trust)
Third Plaintiff
FRANCOIS
JOHANNES VAN DYK
Fourth Plaintiff
and
MINISTER
OF PUBLIC WORKS
First Defendant
THE
SOUTH AFRICAN NATIONAL ROADS AGENCY
Second Defendant
Coram:
Ramaepadi AJ
JUDGMENT
Ramaepadi
AJ
Introduction
1 This is an application
brought in terms of rule 28(4) of the Uniform Rules of Court, for
leave to amend plaintiffs’ amended
particulars of claim dated
14 March 2017 (‘’the
particulars of claim’’
).
2
The application is opposed by the second defendant only (‘’the
Chief Executive Officer of the South African National
Roads Agency
’’). He does so essentially on two grounds.
2.1
First, the proposed amendment, if allowed, will have the effect that
the Mostert Familie Trust (IT4625/99)
will no longer be a party to
the proceedings before Court; and
2.2
Second, the proposed amendment, if allowed, will render the
plaintiffs’ particulars of claim
excipiable,
because the
proposed amendment does not disclose a cause of action against the
second defendant.
3 In the discussion
below, I consider each of the grounds of objection summarised above.
Before doing so, it is important to set
out the legal principles
applicable to applications for amendment of pleadings. This is
particularly important because a bulk of
the second defendant’s
complaints in this case do not constitute good grounds of objection.
The
general approach to applications for amendment of pleadings
4 The legal principles
governing applications for amendment of pleadings are trite. They are
neatly summarised in
Commercial Union Assurance Co Ltd v Waymark
NO
1995 (2) SA 73
(Tk)
at 77F-I. The following principles emerge
from the above case-law:
4.1 The court has a
discretion whether to grant or refuse an amendment.
4.2 An amendment cannot
be granted for the mere asking; some explanation must be offered
therefor.
4.3 The applicant must
show that
prima facie
the amendment has something deserving of
consideration, a triable issue.
4.4 The modern tendency
lies in favour of an amendment if such facilitates the proper
ventilation of the disputes between the parties.
4.5 The party seeking the
amendment must not be mala fide.
4.6 The amendment must
not cause an injustice to the other side which cannot be compensated
by costs.
4.7 The amendment should
not be refused simply to punish the applicant for neglect.
4.8 A mere loss of the
opportunity of gaining time is no reason, in itself, for refusing the
application.
4.9 If the amendment is
not sought timeously, some reason must be given for the delay.
5 These principles have
now crystalized into a coherent legal system, and have been widely
accepted and applied by both the high
court and the labour court, as
the proper approach to adjudicating applications for amendment of
pleadings. See for example,
Four Towers Investments (Pty) Ltd v
Andre’s Motors
2005 (3) SA 39
(N) at 43G-H; ASUWU & Others
v Pearwood Investments (Pty) Ltd t/a Wolf Security & Another
(2009) 30 ILJ 1852 (LC); Randa
v Radopile Projects CC
2012 (6) SA 128
(GSJ) at 141C.
6 In what follows, I
consider the second defendant’s objections to the proposed
amendments in light of the principles set
out above.
The
grounds of objection
7 The second defendant’s
objections are directed at three (3) paragraphs of the plaintiffs’
notice of intention to amend.
First, paragraph 2; second, paragraph
13; and third, paragraph 14.
The
objection to paragraph 2 of the notice of intention to amend
8 This objection is
formulated in the second defendant’s notice of objection,
as follows:
8.1
In the
paragraph 2 of the intended amendment, the Plaintiffs delete
paragraphs 2 and 3 of their Amended Particulars of Claim dated
14
March 2017. Paragraphs 2 and 3 of the Plaintiffs’ Amended
Particulars of Claim reads (sic) as follows:
8.1.1
Tweede
Eiser is WILLEM ANDRIES MOSTERT N.O. ‘n meerderjarige
pensionaris van AOUBSTRAAT 12B, WALVISBAAI, NAMIBIe in sy amptelike
hoedanigheid as trustee van die Trust.
8.1.2
Derde
Eiser is WILMA FRANCIS MOSTERT N.O. ‘n meerderjarige vroulike
person van AOUBSTRAAT 12B, WALVISBAAI, NAMIBIe in haar
amptelike
hoedanigheid as trustees van die Trust.’’
8.2 The First to
Fourth Plaintiffs instituted the action as trustees of the Mostert
Familie Trust (IT4625/99).
8.3 The Plaintiffs
cannot merely ‘’delete’’ the Second and Third
Plaintiffs as parties to the proceedings,
without providing letters
of authority indicating, that the First Plaintiff is the only trustee
of the Mostert Familie Trust (IT4625/1999).
8.4 A trust is not a
legal persona but a legal institution sui generis. Its assets and
liabilities vest in its trustees. Trustees
ought therefore to be
cited in their capacity as trustees, since the trust itself cannot be
either a Plaintiff or Defendant. Unless
one of the trustees is
authorised by the others, all the trustees must be joined in
instituting or defending proceedings by or
against the trust.
8.5
The First
Plaintiff fails to provide any documentation in the Plaintiffs’
Notice of intended amendment indicating that he
is authorised to
solely act on behalf of the Mostert Familie Trust.
’’
The
objection to paragraph 13 of the notice of intention to amend
9 This objection is
formulated as follows:
9.1 The intended
amendment to the Plaintiffs’ Particulars of Claim will render
the Plaintiffs’ Particulars of Claim
excipiable as a result of
the following:
9.1.1
In
paragraph 13 of the Plaintiffs’ Notice of intended amendment of
their Particulars of Claim, the following is stated:
‘’
As a
result of the aforementioned action from the First Defendant were:
9.1.1.1 Erf [….]
and remainder of ERF [….], permanently deprived of the
entrance, from the N7 roadway and/or
any other public road;
9.1.1.2
The owners and
visitors of the aforementioned ground did not have an entrance to the
aforementioned erven.
’’
The
objection to paragraph 14 of the notice of intention to amend
10
This objection is formulated as follows:
10.1 In paragraph 14
of the Plaintiffs’ Notice of intention to amend, the Plaintiffs
refer to letters from the Second Defendant.
Annexure ‘’MFT6’’
of the letter specifically state (sic) the following:
‘’
Die
verantwoordelikheid vir die bou van die toegang binne die N7
padreserwe om aan the sluit by die serwituuut reg van weg is die
applicant se verantwoordelikheid. SANRAL sal by geen onkoste in
hierdie verband betrokke wees nie.’’
10.2 The Plaintiffs’
(sic) therefore fail to indicate on what basis the Plaintiffs have a
cause of action against the Second
Defendant as a result of the
alleged conduct of the First Defendant’s, nor does it state on
what basis the Second Defendant
will be liable for the cost of
building a road as set out in prayer (a) of the Notice of intention
to amend, when it was specifically
stated in Annexure ‘’MFT6’’,
that the Plaintiffs will be liable for all costs involved in building
an entrance
road.
10.3 The Plaintiffs’
Notice of Intention of amendment therefore lacks averments which are
necessary to sustain a cause of
action against the Second Defendant.
10.4 In the premises,
the Plaintiffs’ Particulars of Claim will be excipiable in the
event that the Plaintiffs proceed with
the intended amendments.’’
11 It is necessary, in
order to understand my decision on the objections raised by the
second defendant, to have regard to the three
paragraphs of the
notice of intention to amend, to which the objections are directed
at.
11.1 The first, is
paragraph 2 of the notice of intention to amend. The paragraph reads
as follows:
‘’
2. By
deleting paragraphs 2 and 3’’.
11.2 The second, is
paragraph 13 of the notice of intention to amend. It reads as
follows:
‘’
13. By
renumbering paragraph 13, to paragraph 12
12. As a result of the
aforementioned action from the First Defendant were:
12.1 Erf [….]
and remainder of Erf [….], permanently deprived of the
entrance, from N7 roadway and/or any other public
road;
12.2 The owners and
visitors of the aforementioned ground did not have an entrance to the
aforementioned erven.’’
12 These are the only
amendments that are relevant to this application. In the discussion
below, I deal with each of the objections
raised by the second
defendant. I first deal with the objection to paragraphs 13 and 14 of
the notice of intention to amend. Thereafter,
I deal with the
objection to paragraph 2 of the notice.
The
objection to paragraphs 13 and 14 of the notice of intention to amend
13 The high watermark of
the second defendant’s objection to the proposed amendments to
paragraphs 13 and 14 of the particulars
of claim is that if allowed,
the proposed amendments will render the plaintiffs’ particulars
of claim
excipiable,
because paragraphs 13 and 14 of the
proposed amendments lack averments which are necessary to sustain a
cause of action against
the second defendant.
14 The second defendant’s
objection, therefore, is premised on the misconception that
paragraphs 13 and 14 of the notice of
intention to amend, seek to
introduce the contents of the new paragraphs 12 and 13 of the
proposed amendment into the particulars
of claim. That is not so.
15 Paragraphs 13 and 14
of the notice of intention to amend did not introduce anything new
into the particulars of claim. Paragraph
13 of the proposed amendment
merely seeks to re-number the existing paragraph 13 of the
particulars of claim to become paragraph
12. The contents of
paragraph 13 have remained the same since the first iteration of the
plaintiffs’ particulars of claim
in this matter. Paragraph 13
of the original particulars of claim dated 12 September 2016, reads:
‘’
13.
Deur voormelde aksie van die Department van Openbare Werke was:
13.1 Perseel
[….] en Restant van Erf [….] van die vorige
toegangsroete ontneem, as gevolg waarvan voormelde
grondstukke geen
toegang meer het vanaf die N7 snelweg of enige ander openbare pad
nie;
13.2 Het die
eienaars en/of besoekers van voormelde grondstukke nie ‘n
toegangsroete tot die voormelde grondstukke nie.’’
16 Paragraph 13 of the
particulars of claim was carried over into the amended particulars of
claim dated 14 March 2017. It has now
been carried over into the
proposed amendment.
17 Save for the
re-numbering, the contents of the proposed new paragraph 12 remain
exactly identical to the contents of the existing
paragraph 13 of the
particulars of claim.
18 The same applies in
respect of paragraph 14 of the notice of intention to amend, which
seeks to re-number the existing paragraph
14 of the particulars of
claim, to become paragraph 13. The contents of paragraph 14 have
remained the same since the first iteration
of the plaintiffs’
particulars of claim in this matter. Paragraph 14 of the original
particulars of claim dated 12 September
2016, reads:
‘’
14.
Die
Suid-Afrikaanse Padagentskap het skriftelik bevestig, in skrywes
gedateer 20 Februarie 2015 en 15 Mei 2015 deur hul gevolmagtigde
verteenwoordiger, MJ Runkel, dat ‘n toegang vanaf die N7
snelweg, waar dit begin op die N7 by km 115,8 na die tersaaklike
grondstukke goedgekeur was. Afskrifte van sodanige skrywes word
hierby aangeheg as Aahangsels ‘’MFT5’’
en
‘’MFT6’’ onderskeidelik.’’
19 Save for the
re-numbering, the contents of the proposed new paragraph 13 have
remained exactly identical to the contents of the
existing paragraph
14 of the particulars of claim.
20 Once it is so, then it
follows that the second defendant’s objection to paragraphs 13
and 14 of the plaintiffs’ notice
of intention to amend is
flawed precisely because:
20.1 Paragraphs 13 and 14
of the proposed amendment do not introduce any substantive amendments
to the particulars of claim. They
only re-number the existing
paragraphs of the particulars of claim, without introducing any
material changes to the contents of
the re-numbered paragraphs.
20.2 Re-numbering or
adjusting the existing paragraphs of a pleading is not a substantive
amendment, but merely a formal one. Amendments
of this nature –
formal amendments – are usually allowed in the normal course.
See for example, Golden Harvest (Pty)
Ltd v Zen-Don CC
2002 (2) SA
653
(O).
20.3 The second defendant
will not suffer any prejudice if the amendment is allowed.
21 In the absence of
prejudice to the second defendant, there is simply no basis to refuse
the proposed amendment to paragraphs
13 and 14 of the notice of
intention to amend, unless there are some other considerations that
preclude the court from granting
the proposed amendment. These
include, an amendment which renders the pleading
excipiable (See
for example, Caxton Ltd v Reeva Forman (Pty) Ltd
[1990] ZASCA 47
;
1990 (3) SA 547
(A)
at 565H-J; Barnard v Barnard
2000 (3) SA 741
(W) at 754F; Krischke v
RAF
2004 (4) SA 358
(W) at 363B; Nxumalo v First Link Insurance
Brokers
2003 (2) SA 620
(T),
or which seeks to introduces a new
cause of action which has since prescribed. See for example, Embling
v Two Oceans Aquarium CC
2000 (3) SA 691
(C) at 697J-698A; Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and
Lacquers v Smit 2000 (
2) SA 789
(SCA) at 794C-G; Malinga v Road
Accident Fund
2012 (5) SA 120
(GNP) at 124C-G.
22 Adv. Sieberhagen who
appeared on behalf of the second defendant strongly urged me to
refuse the proposed amendment to paragraphs
13 and 14 of the notice
of intention to amend, on the basis that, if allowed, the particulars
of claim will be
excipiable
in that they will lack averment
which are necessary to sustain a cause of action against the second
defendant. In support of this
argument, the second defendant relies
on the following commentary from Erasmus: Superior Court Practice vol
2:
‘’
Save in
exceptional cases, where the balance of convenience or some such
might render another course desirable, an amendment ought
not be
allowed where its introduction into the pleading would render such
pleading excipiable. In other words, the issue proposed
to be
introduced by the amendment must be triable issue. A triable issue is
one (a) which, if it can be proved by the evidence
foreshadowed in
the application for amendment, will be viable or relevant; or (b)
which, as a matter of probability, will be proved
by the evidence so
foreshadowed. If the plaintiff’s particulars of claim do not
disclose a cause of action, an amendment
of the defendant’s
plea thereto would be an exercise in futility.’’
23 The above statement is
correct as a statement of substantive law, but it says nothing about
whether in this case, the alleged
excipiability
in the
particulars of claim has been brought about by the proposed
amendment. This is particularly important in this case because
the
alleged
excipiability
in the plaintiffs’ particulars of
claim, has evidently not been brought about by the proposed
amendment. Rather, it has existed
right from inception of this
action.
24 The second defendant
is therefore, not entitled to rely on the objection mechanism
provided for in Uniform rule 28(3) to attack
the alleged
excipiability of the plaintiffs’ particulars of claim. To the
extent that the second defendant intends to raise
an exception
against the plaintiffs’ particulars of claim, his remedy lies,
not in rule 28(3), but in the provisions of Uniform
rule 23.
25 An objection under
rule 28(3) can only be raised in circumstances where the
excipiability of the pleading is brought about by
the proposed
amendment. This is not such a case. The second defendant has clearly
misconceived his legal position.
26 In the result, I find
the second defendant’s objection to paragraphs 13 and 14 of the
plaintiffs’ particulars of
claim to be without merits. The
effect of the proposed amendments to paragraphs 13 and 14 is to do no
more, than to re-number the
existing paragraphs of the particulars of
claim.
27 Accordingly, the
second defendant’s objection to paragraphs 13 and 14 of the
notice of intention to amend is dismissed.
Consequently, the
amendments proposed in paragraphs 13 and 14 of the notice of
intention to amend dated 25 February 2021 are allowed.
The
proposed amendment to paragraph 2 of the notice of intention to amend
28 The second defendant
relies, for the proposition that the plaintiffs cannot remove the
second and third plaintiffs as parties
to the proceedings, on two
judgments.
28.1 First, the judgment
of the Supreme Court of Appeal in Land and Agricultural Development
Bank of SA v Parker and Others
[2004] 4 All SA 261
(SCA). In
particular, the second defendant relies on paragraphs [10] and [11]
of that judgment.
28.1.1
The first principle
accounts for the fact that the trust could not be bound while there
were fewer than three trustees. Except where
statute provides
otherwise, a trust is not a legal person. It is an accumulation of
assets and liabilities. These constitute the
trust estate, which is a
separate entity. But though separate, the accumulation of rights and
obligations comprising the trust
estate does not have legal
personality. It vests in the trustees, and must be administered by
them – and it is only through
the trustees, specified as in the
trust instrument, that the trust can act. Who the trustees are, their
number, how they are appointed,
and under what circumstances they
have power to bind the trust estate are matters defined in the trust
deed, which is the trust’s
constitutive charter. Outside its
provisions the trust estate cannot be bound.
[1]
28.1.2
It follows that a
provision requiring that a specified minimum number of trustees must
hold office is a capacity-defining condition.
It lays down a
prerequisite that must be fulfilled before the trust estate can be
bound. When fewer trustees than the number specified
are in office,
the trust suffers from an incapacity that precludes action on its
behalf.’’
[2]
28.2
Second, the judgment in
Cuba NO
and Others v Holoquin Global (Pty) Ltd and Others
[2016] All SA 77
(GJ).
The
second defendant relies on paragraph [8] of the judgment.
[3]
‘’
It is
trite that the general rule is that the trustees of a Trust must join
in suing (Cameron, Honore’s South African Law
of Trusts (5ed)
page 322, paragraph 197 and the authorities cited in footnote 454 and
paragraphs 256 page 419). While it may be
possible for a trustee to
execute a power of attorney to a fellow trustee to conduct litigation
if authorised by the Trust Deed,
the trustee so authorised is not
substituted for the trustee granting the power of attorney in suing.
All trustees must still sue
and represent the Trust. All that the
authorisation effects is that one trustee may conduct the litigation
on behalf of himself
and the trustee who has authorised him to do so,
in both their names (see Lupacchini NO and another v Minister of
Safety &
Security
2010 (6) SA 457
(SCA at para 2 at 459D-E [also
reported at
[2011] 2 All SA 138
(SCA) – Ed])’’.
29 The extracts of the
judgments [referred to above] on which the second defendant relies,
emphasise the general rule that all the
trustees of a trust must act
jointly when suing, or being sued, unless the other trustees have
delegated their duties or powers
to one of the trustees to conduct
the litigation in the name of the trust.
30 There is no averment
in the notice of intention to amend, express or implied, that the
second and third plaintiffs have delegated
their duties or powers to
the first plaintiff (also trustee), to conduct the litigation on
their behalf and on behalf of the trust.
31
Nor, is it the plaintiffs’ case that the first plaintiff has
been authorised to conduct the litigation on behalf of the
remaining
trustees. Rather, the plaintiffs’ argument is two-fold:
31.1 First, that
paragraph 2 of the notice of intention to amend is not an application
for the removal of second and third plaintiffs
as trustees.
[4]
31.2 Second, that since
the second defendant did not file a notice disputing the plaintiffs’
authority to act, then there
was no obligation on the part of the
plaintiffs to file a power of attorney confirming their authority to
act in the matter.
[5]
32 The second defendant’s
objection against paragraph 2 of the notice of intention to amend is
clear – it is not that
the effect of paragraph 2 of the notice
of intention to amend is to remove the second and third plaintiffs as
trustees. Rather,
it is that the effect of paragraph 2 is to remove
the second and third plaintiffs as parties to the proceedings. This
is a different
point from the one sought to be addressed in the
plaintiffs’ heads of argument.
33 Contrary to the
misconceptions promulgated in the plaintiffs’ heads of
argument, there can be no confusion about the effect
of paragraph 2
of the notice of intention to amend.
33.1 Paragraph 2 reads,
‘’By deleting paragraphs 2 and 3.’’
33.2 Paragraph 2 of the
particulars of claim is the relevant paragraph of the particulars of
claim where the second plaintiff (WILLEM
ANDRIES MOSTERT N.O.) is
cited in his official capacity as a trustee of the Mostert Family
Trust, whereas paragraph 3 is the relevant
paragraph of the
particulars of claim, where the third plaintiff (WILMA FRANCIS
MOSTERT N.O.) is cited in her official capacity
as trustee of the
Mostert Family Trust.
33.3 The effect of the
proposed amendment, therefore, is to delete the second and third
plaintiffs as parties to these proceedings.
34 If allowed, paragraph
2 of the proposed amend, therefore, will result in the Mostert Family
Trust not being properly represented
before Court by all the trustees
of the Trust. Failure to join all the trustees of the Trust in the
legal proceedings is of course,
contrary to the well-established
principle that requires all the trustees of a trust to be joined in
any legal proceedings instituted
by or against a trust.
35 The requirement
pertaining to joinder of all the trustees of a trust must not be
confused with the locus standi point –
it is not concerned with
the
locus standi
of the remaining trustees of the trust to
institute the action on behalf of the Trust. Rather, it is about the
authority of the
first plaintiff to conduct the proceedings on behalf
of the Trust as well as the second and third plaintiffs.
36
Locus standi
concerns the direct interest of a party in the relief sought in legal
proceedings. Authorization, on the other hand, concerns the
question
of whether a party is properly before court in legal proceedings. The
two concepts should never be conflated. They must
at all times, be
kept separate, because they deal with two distinct situations.
37 It is now trite, that
the remedy of a party who wishes to challenge the authority of a
person acting on behalf of another, now
lies in rule 7(1) of the
Uniform rules of Court. This was explained by the SCA in Ganes.
[6]
‘’
However,
as Flemming DJP has said, now that the Rule 7(1) remedy is available,
a party who wishes to raise the issue of authority
should not adopt
the procedure followed by the appellants in this matter, ie by way of
argument based on no more than a textual
analysis of the words used
by a deponent in an attempt to prove his or her own authority. This
method invariably resulted in a
costly and wasteful investigation,
which normally leads to the conclusion that the application was
indeed authorised. After all,
there is rarely any motivation for
deliberately launching an unauthorised application. In the present
case, for example, the respondent’s
challenge resulted in the
filing of pages of resolutions annexed to a supplementary affidavit
followed by lengthy technical argument
on both sides. All this
culminated in the following question: Is it conceivable that an
application of this magnitude could have
been launched on behalf of
the municipality with the knowledge of but against the advice of its
director of legal services? That
question can, in my view, be
answered only in the negative.’’
38 It is important to
point out that whilst in Ganes the SCA was concerned with motion
proceedings, the wording of rule 7(1) makes
plain that the subrule
applies to both action and application proceedings. Rule 7(1) reads:
‘’
Subject
to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfied the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.
’’
39 To the extent that the
second defendant wish to dispute the authority of the first plaintiff
to conduct the litigation on behalf
of the Trust and the remaining
trustees of the Trust, he should have done so by delivering a notice
to that effect, within ten
(10) days of becoming aware that the first
plaintiff was so acting, or such longer period as the court may on
good cause shown,
permit. Needless to say that the second defendant
has not done so. Instead he has resorted to raise an objection
against the plaintiffs’
proposed amendment, without directing
challenging the authority of the first plaintiff to act on behalf of
the Trust and the second
and third plaintiffs in the matter.
40 It is irrelevant for
adjudication of the application for leave to amend, that the
plaintiffs are attempting through the proposed
amendment, to remove
the second and third plaintiffs as parties to these proceedings. It
is equally irrelevant that the deletion
of the second and third
plaintiffs as parties to these proceedings will result in the Mostert
Family Trust no longer being properly
before the Court, as contended
by the second defendant. Irrelevant too, is the fact that the
plaintiffs have not attached to their
notice of intention to amend,
proof that the first plaintiff has been authorised to act on behalf
of the Trust, as well as the
second and third plaintiffs in the
matter.
41 As a matter of
practice, the second defendant cannot challenge the authority of the
first plaintiff to act on behalf of the Trust,
as well as the second
and third plaintiffs in this matter, without invoking Uniform rule
7(1).
42
Rule 7(1) is not reserved only to challenges to the authority of
attorneys to act in proceedings. It equally applies to challenges
directed at the general authority of any person to represent or act
on behalf of another in legal proceedings. This was made clear
by
Flemming DJP in
Eskom
.
[7]
43 The opportunity is not
completely lost to the second defendant to challenge the authority of
the first plaintiff in terms of
the rules of court. He may, despite
expiry of the ten (10) days period specified in rule 7(1) and on good
cause shown, challenge
the authority of the first plaintiff to act on
behalf of the Trust, as well as the second and third plaintiffs in
the matter. Case-law
suggests that such a challenge may be mounted at
any stage of the proceedings, but before judgment is granted.
44 This means, therefore,
that if allowed, the proposed amendment will not result in injustice
or prejudice to the second defendant
which cannot be compensated by
costs. Prejudice in this context has been interpreted to include a
situation where the parties cannot
be put back for the purpose of
justice in the same position as were when the pleading it is sought
to amend was filed.
[8]
This is
definitely not so in this case. Even if allowed, the second defendant
still has an opportunity to challenge the authority
of the first
plaintiff to act on behalf of the Trust, as well as the second and
third plaintiffs in this matter.
45 The following examples
have emerged from the case-law on what does not constitute prejudice
for purposes of rule 7(1).
45.1 Where a party will
be no worse off if the amendment is granted with a suitable order as
to costs.
45.2
The
mere loss of the opportunity of gaining time is not in law
prejudice.
[9]
45.3 The fact that the
granting of the amendment would necessitate the reopening of the case
for further evidence to be led is no
ground for refusing the
amendment where the reason for the failure to lead that evidence was
the state of the pleadings, and not
a deliberate failure on the part
of the applicant.
45.4 If a party makes a
mistake in his pleading by, for example, demanding too little when
more is owing, or by admitting that the
defendant has paid a portion
when in fact he has not, he gives his opponent an advantage which
justice and fair dealing could not
commend. If, the opponent is then
deprived of this unjust advantage by an amendment, the parties are
put back for the purposes
of justice in the same position as they
were when the pleading it is sought to amend was filed. The opposing
party suffers no injustice
and is not prejudiced, for he is in no
worse position than he would have been if the pleading in its amended
form had been filed
in the first place.
46 I have considered the
application for leave to amend in light of the submissions made on
behalf of the plaintiffs and the second
defendant, both in the
written heads of argument and in oral argument. I have also
considered the principles set out in
Commercial Union Assurance Co
Ltd
(
supra
), governing applications for amendment of
pleadings. To me, the crucial aspect is the consideration of how a
judicial officer should
exercise his or her discretion when faced
with an application for amendment. An equally important consideration
is that an amendment
that facilitates the proper ventilation of the
dispute between the parties must always be granted, unless the
amendment will result
in an injustice to the other side, which cannot
be compensated by costs.
47 In my view, there is
no injustice or prejudice that will be suffered by the second
defendant, if the amendment were to be allowed.
Any prejudice (if
any) which may be suffered by the second defendant as a result of the
proposed amendment will be adequately compensated
for with an
appropriate cost order.
48
There being no injustice to the second defendant, the application for
leave to amend must therefore be granted. Only the question
of costs
remains, and there are two issues in this regard. One relates to the
costs of the application for amendment. In my view,
the plaintiffs
must bear such costs as would have arisen had the application been
unopposed.
49 The other question
relates to the costs of the opposed application for leave to amend.
There is no reason why the plaintiffs
should not be entitled to the
costs of the application for leave to amend.
50 In the result, the
following orders are made:
50.1 The second
defendant’s objections to the plaintiffs’ notice of
intended amendment in terms of rule 28, dated 25
February 2021 are
dismissed.
50.2 The plaintiffs’
application for leave to amend is granted.
50.3 The plaintiffs shall
bear the costs of the application for amendment as would have arisen
had the application been unopposed.
50.4 The second defendant
shall pay the costs of the opposed application for leave to amend.
_________________
M
J Ramaepadi
Acting
Judge
Northern
Cape Division, Kimberley
Date
of Hearing:
21 January 2022
Date
of Judgment:
20 May 2022
For
the plaintiffs:
Adv. Eillert
Instructed
by:
Van Dyk & Co
c/o
Engelsman Magabane
For
the First defendant:
Ms
Msibi
Instructed
by:
The State Attorney
For
the second defendant:
Adv. A.S. Sieberhagen
Instructed
by:
Nompumelelo, Hadebe Inc
c/o Towell &
Groenewaldt Attorneys
.
[1]
At para 10
[2]
At
para 11
[3]
At para 11
[4]
Plaintiffs’ heads of argument p2 para 1
[5]
Plaintiffs’ heads of argument p2 para 2
[6]
Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA)
[7]
Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705H. See also
Unlawful Occupiers, School Site v City of Johannesburg
2005 (4) SA
199
(SCA) at 207C-E
[8]
See for example, Moolman v Estate Moolman
1927 CPD 27
at 29
[9]
See for example, Amod v SA Mutual Fire & General Insurance Co
Ltd
1971 (2) SA 611
(N) at 617H-618A