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[2022] ZAECELLC 4
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Pena v University of Fort Hare and Others (EL 240/2021) [2022] ZAECELLC 4 (3 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL DIVISION
CASE
NO: EL 240/2021
In
the matter between:
RASHID
PENA
Plaintiff
and
UNIVERSITY
OF FORT
HARE
1
st
Defendant
NURSING
COUNCIL OF SOUTH
AFRICA
2
nd
Defendant
MINISTER
OF HIGHER EDUCATION AND TRAINING
3
rd
Defendant
MINISTER
OF
HEALTH
4
th
Defendant
MINISTER OF HOME
AFFAIRS
5
th
Defendant
JUDGMENT
STRETCH
J.:
[1]
On 26
February 2021 the plaintiff instituted action against the first two
defendants (hereinafter referred to as “UFH”
and “SANC”
respectively) for damages of R5,5 million allegedly flowing from
certain administrative action taken by
UFH as a result of which the
plaintiff failed to complete a nursing degree with UFH. During April
2021, SANC delivered a notice
of exception averring that the
plaintiff’s particulars of claim are vague and embarrassing,
that they lack averments necessary
to sustain an action and that they
constitute an irregular step, and affording the plaintiff 15 days
within which to remove the
causes of complaint.
[1]
[2]
During May
2021, the plaintiff duly delivered a notice of intention to amend his
particulars, purportedly in an attempt to cure
the causes of
complaint. The proposed amendment in fact constitutes a substitution
of the entire original claim. SANC, in a seven-page
document,
objected to the proposed amendment, clearly and concisely stating the
grounds upon which the objection is founded,
[2]
being in essence similar to those raised in its initial notice of
exception. The objection further notifies the plaintiff that
should
he proceed with the application to amend in its present form, SANC
would pursue a
de
bonis propriis
costs
order against the plaintiff’s attorney. The plaintiff
nevertheless persisted with the existing application.
[3]
It appears to be the plaintiff’s case that the grounds upon
which
SANC are opposing the amendment, do not constitute grounds
precluding an amendment, but are defences which SANC must raise in
its
plea. SANC has raised nine grounds of objection to the proposed
amendment. I will attempt to deal with them seriatim.
Failure
to enunciate facts and circumstances from which the alleged tacit
contract is inferred
[4]
The proposed amendment introduces an averment that the plaintiff’s
claim arises from the breach of a written, alternatively tacit
agreement between the plaintiff and UFH (the first defendant) for
the
plaintiff’s enrolment and tuition in nursing studies. It is
contended on behalf of SANC (who is the second defendant)
that the
proposed amendment does not enunciate the facts and circumstances
from which the tacit contract is inferred. It is argued
that this
will render the amendment excipiable as it will fail to disclose a
cause of action premised on the alleged tacit agreement.
[5]
The plaintiff contends that for a tacit agreement to arise, the
plaintiff
need only “allege and prove a parallel conduct by
rivals”, in other words “one which was preceded by
suggestive
communications that do not themselves form an explicit
agreement”. The proposed amendment relating to the agreement
reads
as follows:
‘
Sometime in 2015,
Plaintiff, who is a non-national, applied to study a degree in
Nursing at University of Fort Hare (hereinafter
referred to as Fort
Hare), the First Defendant. Plaintiff was admitted by the said
institution to undertake nursing studies. As
a consequence, a written
alternatively tacit agreement was concluded between the parties on
23th [sic] of November 2015 at East
London, Plaintiff acting
personally and First Defendant represented by Dr Mbiji P
Mahlangu (hereinafter “the agreement”).
A copy of the
admission letter is annexed hereto as “
RP1”
.
…
The material
terms of the agreement were that the First Defendant will:
- provide Plaintiff
with tuition and supervision of a professional standard in the
programme of a nursing study and the courses
in which he is enrolled
for the duration of the nursing study (four years)
- ensure compliance
with the legal requirements for and legislation applicable in the
nursing studies including but not limited
to registration of
Plaintiff as a learner nurse with the Second Defendant
- require and make
arrangements for Plaintiff to attend and/or participate in clinical
practicals and/or allocate him in health
institutions for those
clinical practicals.
Plaintiff, who was not in
possession of a study permit at the time of his admission at Fort
Hare, was advised by the agents of the
First Defendant that a grace
period was given to academic institutions for the waiver of the said
requirement.
In line with the terms of
the written and/or tacit agreement referred to above Plaintiff
commenced with his studies on 23 February
2016 after being cleared
and registered by the First Defendant’s international office.’
[6]
On the papers before me, no written agreement was annexed to the
particulars
of claim in compliance with rule 18(6). Nor was the
admission letter annexed in compliance with the undertaking in the
particulars
of claim.
[7]
The
plaintiff does however, in the alternative, rely on a tacit
agreement. Rule 18(7) says that it shall not be necessary in any
pleading to state the circumstances from which an alleged
implied
term
can be inferred. Generally stated, an implied term arises by
operation of law, whilst a tacit term is an unexpressed
provision of
the contract, derived from the common intention of the parties. It
has been held however, that the expression ‘implied
term’
is an ambiguous one in that it is often used to denote at least two
distinct concepts.
[3]
It is, on
the one hand, used to describe the unexpressed provision of a
contract which the law imports. On the other hand, it is
also used to
denote an unexpressed provision of a contract which derives from the
common intention of the parties, as inferred
by the court from the
express terms of the contract and the surrounding circumstances.
[4]
The latter is sometimes described as a ‘tacit’ term,
which is a description which was approved by the Appellate
Division.
[5]
The Constitutional
Court has described a tacit term as follows
[6]
:
‘
A tacit term is an
unspoken provision on the contract. It is one to which the parties
agree, though without saying so explicitly.
The test for inferring a
tacit term is whether the parties, if asked whether their agreement
contained the term, would immediately
say, “Yes, of course
that’s what we agreed.” Before a court can infer a tacit
term, it must be satisfied that
there is a necessary implication that
they intended to contract on that basis.’
[8]
The
sub-rule accordingly relates to a tacit term in an express
contract.
[7]
In other words,
whereas a plaintiff who relies upon a tacit term in an express
contract need not set out the circumstances from
which the alleged
term can be inferred, a plaintiff who relies on a tacit contract must
set out the facts and circumstances from
which the contract is
inferred.
[8]
In any event, where
an exception is raised, or, as in the case before me, where an
amendment is opposed, the test is whether the
tacit term could
reasonably be implied.
[9]
[9]
I am not persuaded that the proposed amendment fails to enunciate
facts
and circumstances from which an alleged contract is inferred.
Although I have some difficulty in understanding what the plaintiff
means when he refers to “parallel conduct by rivals”, I
will assume, in his favour, that what he is seeking to convey
is that
he has pleaded facts and circumstances from which the alleged
agreement can be inferred. To that extent I am constrained
to agree.
The plaintiff has managed to set out facts and circumstances in
sufficient detail for the defendants to plead to them.
He has also
listed three material terms of the agreement, and has alleged as a
fact that agents of the first defendant advised
him that academic
institutions had been given a grace period during which waiver of the
requirement of a study permit applied.
From the facts and the
circumstances described by the plaintiff, it may be inferred that the
first defendant was one of those institutions.
This however, only
really affects paragraphs 6, 7, 8, 9 and 10 of the 26 paragraph
amendment notice.
Failure
to allege facts to establish jurisdiction
[10]
Paragraph 3.2 of the proposed amendment alleges that SANC’s
business
premises are situated in the province of Gauteng. The claim
against SANC is premised on an alleged breach of what appears to be
a
delictual duty of care. It is pleaded that the whole cause of action
arose within the area of jurisdiction of this court because
the
agreement (between the plaintiff and UFH) was concluded in East
London, the performance of UFH’s obligations (allowing
plaintiff to study nursing) was in East London, and that the
“wrongful and/or negligent conduct complained about was
communicated
and/or took place in East London”.
[11]
SANC contends that the communication of the alleged breach of the
duty of care
does not confer jurisdiction upon this court. It is
argued that this is so because the plaintiff has not pleaded any
facts to suggest
that SANC acted or failed to act at any place other
than at its Gauteng address. The proposed amendment will thus be
excipiable,
according to SANC, because it lacks averments necessary
to sustain a cause of action against SANC, in that it does not state
any
basis upon which this court will have jurisdiction to adjudicate
a claim against SANC.
[12]
The plaintiff, in his affidavit under reply, avers that this court
has jurisdiction
to hear this application as it is “interlocutory
to the main proceedings currently pending before this Honourable
Court.”
I can only assume that this non-sensical reply was not
drafted with the assistance of a legal practitioner. It does not
merit consideration.
[13]
It is also contended on the plaintiff’s behalf that SANC is but
one of
several defendants and
s 21(2)
of the
Superior Courts Act 10
of 2013
accordingly applies. The subsection reads as follows:
‘
A Division also
has jurisdiction over any person residing or being outside its area
of jurisdiction who is joined as a party to
any cause in relation to
which such court has jurisdiction or who in terms of a third party
notice becomes a party to such a cause,
if the person resides or is
within the area of jurisdiction of any other Division.’
[14]
This
subsection was originally introduced into the former Supreme Court
Act 59 of 1959 by s 2 of the Supreme Court Amendment Act
41 of 1970.
The subsection extends the jurisdiction of a division of the High
Court with regard to persons outside the ordinary
jurisdiction of the
division concerned. In other words, once it has been established that
a particular division of the High Court
has jurisdiction, the
subsection can be used to join to that cause a defendant not resident
within the area of jurisdiction of
that division.
[10]
The object of the subsection is to avoid the inconvenience and
expense of a multiplicity of actions.
[11]
[15]
Whereas
absence of jurisdiction is generally raised by way of a special plea,
it may be raised as an exception if the lack of jurisdiction
appears
ex facie
the
pleadings.
[12]
This is not the
first time that SANC has raised the issue of lack of jurisdiction. In
its notice of exception to the plaintiff’s
original particulars
of claim it avers that according to paragraph 39 of those
particulars, read with annexure RP37 (which is not
before me), SANC’s
rejection of the plaintiff’s application for registration as a
learner nurse occurred at a meeting
of SANC’s full board held
at Pretoria (outside this court’s geographical area of
jurisdiction).
[16]
I digress to point out that although the original particulars of
claim were
made up of an 11 page statement which appears to have been
an affidavit at some stage deposed to by a legal practitioner, with
no less than 19 annexures (which annexures have been omitted from
these application papers), they have some use in this particular
application, in that they give this court some idea of the
facta
probantia
upon which the plaintiff is likely to rely at the end
of the day.
[17]
For purposes of background, the following averment is instructive:
‘
In a desperate
attempt to ensure that Plaintiff gets registered to continue with his
third year studies, Plaintiff launched urgent
proceedings in the East
London High Court under case number 306/2018 on the 20
th
of March 2018 to review and set aside the decision of SANC to refuse
to register the Plaintiff and compel UFH and SANC to allow
Plaintiff
to proceed with his studies and place him for clinical training. SANC
advised the Court that it wished to refer the matter
to its full
Council internal and as a result the matter was removed from the roll
to allow SANC to make a decision. A copy of the
High Court Order is
annexed hereto, marked
RP16
.
[13]
The full council of SANC
sat on the 27
th
and 28
th
of March 2018 and
rejected Plaintiff’s application for registration as a learner
nurse. SANC failed to take consideration
of all the information
placed before it by the Plaintiff. A copy of the minutes and
resolutions of the full Council meeting of
SANC held on the 27
th
and 28 of March 2018 is annexed hereto, marked
RP17.
The fourth Respondent
(hereinafter referred as the Minister of Health) set up an Appeal
Board Committee in terms of section 57(1)
and (2) of the Nursing Act
to hear an Appeal that was lodged by Plaintiff. The Appeal hearing
was heard on the 24
th
and 25
th
of February 2021. There is no outcome yet for the appeal.
[14]
However, Plaintiff submits that the on-going appeal does not vitiate
Plaintiff’s cause of action.’
[18]
In the
light of the aforegoing, the issue of jurisdiction appears not to be
as simple as SANC now contends, despite the fact that
SANC’s
role as pleaded by the plaintiff in this application for an amendment
is not exactly a model of eloquence or precision.
Generally, if a
question of jurisdiction is doubtful or arguable, an amendment should
in principle be allowed and it should be
left to the defendant to
raise the issue of jurisdiction by way of an exception in terms
of rule 28(8), or by way of a special
plea, if advised to do so.
[15]
Vagueness
and embarrassment
[19]
SANC has made reference to certain averments which it alleges are
vague and
embarrassing. Examples are, interchangeable references to
“Fort Hare”, “the first defendant” and “this
institution”, and reference to Fort Hare’s agents both in
the singular and in the plural. For the reasons which follow,
I do
not deem it necessary to make a determination in this regard, despite
the fact that this clearly constitutes shoddy and careless
pleading.
Failure
to allege that the plaintiff submitted to SANC a properly completed
application for registration and failure to register
him as a learner
nurse
[20]
Section 32
of the
Nursing Act 33 of 2005
deals with the registration
of learners. The relevant subsections read as follows:
(1)
A person undergoing education or training in nursing must apply to
the Council to be registered as a
learner nurse or a learner midwife.
(2)
The Council must register as a learner nurse or a learner midwife,
any person who has complied with
the prescribed conditions and has
furnished the prescribed particulars for a training programme at a
nursing education institution.
(3)
The person in charge of a nursing education institution must, within
30 days, notify and furnish to
the Council information prescribed by
the Council in respect of each learner nurse who has commenced,
completed, transferred to
or abandoned a nursing education and
training programme. …
[21]
At paragraph 14.1 of the proposed amendment, the plaintiff alleges
that, contrary
to the terms of his agreement with UFH, UFH did not
register plaintiff with SANC. I take it that this is intended to
convey non-compliance
with
s 32(3)
of the
Nursing Act. At
paragraph
19 of the proposed amendment, the plaintiff alleges that in breach of
its duty of care towards him, SANC refused or failed
to register him
as a learner nurse.
[22]
Prima facie, these averments are not only diametrically opposed with
the potential
of being mutually destructive, but they are also
alarmingly silent on what the plaintiff did or failed to do, before
SANC refused
to register him. In my view, the plaintiff must either
plead that he performed in terms of the Act, thus rendering SANC’s
failure to counter-perform wrongful, or he must plead
facta
probanda
which place him in a category where a legitimate
expectation of performance on SANC’s part is at the very least
implied. In
the absence of any of the aforesaid, I am constrained to
agree that the proposed amendment fails to establish a causal link
between
the plaintiff’s alleged damages and the conduct, or
failure to act, on the part of SANC.
[23]
The plaintiff also alleges that SANC was negligent in that it failed
to protect
him and members of the general public “from
undertaking a nursing study or enrolling with an institution that
does not comply
with the
Nursing Act&rdquo
;, and that SANC was also
negligent in that it failed to “inform Plaintiff timeously or
at all of any and all circumstances
which could or would harm him,
prevent it and protect him as per the requirements of the
Nursing
Act.”
[24
]
These averments are nothing less than incoherent ramblings with no
substance or
basis whatsoever. They are extremely embarrassing. Once
again, I can only assume that they were not drafted by, or with the
assistance
of a legal practitioner.
Damages
[25]
The plaintiff, in his proposed amendment, has elevated his damages to
R7 500 000,
under heads of emotional shock and stress
(R500 000), constitutional damages (R2-million) and loss of
future income (R5- million).
The judgment which he seeks however, is
not joint and several. Indeed, it is against one defendant only,
whose identity is undisclosed.
The proposed amendment is at the very
least vague and embarrassing.
Failure
to allege that the plaintiff possessed a valid study permit and
SANC’s alleged breach of a duty of care
[26]
The
plaintiff, in his proposed amendment (and in his original particulars
of claim for that matter), alleges that he did not have
a valid study
permit
[16]
at the time of his
admission to UFH. This is common cause, so it seems. SANC contends
that absent a valid study permit, the plaintiff
was barred from
studying in South Africa, and from being registered as a learner
nurse. In the absence of a corresponding right
to study and to be
registered, so it is argued, the plaintiff could not have suffered
any damages, and any amendment will accordingly
be excipiable as it
will fail to disclose a cause of action.
[27]
In a nutshell, the proposed amendment avers that UFH permitted the
plaintiff
to commence studying on 23 February 2016 on the basis that
the requirement for a study permit had been waived, and agreed that
the plaintiff would in due course, be registered as a learner nurse
with SANC. After two years of study however, UFH not only reneged
on
the agreement but also did not enrol Plaintiff for the third of a
four-year programme, as previously agreed. As a result
of this
breach of the agreement, plaintiff suffered damages.
[28]
The proposed amendment further avers that at some stage, SANC held
out to the
plaintiff that UFH is an academic institution “where
tuition and supervision of a professional standard in the programme
of nursing study are rendered in line with the applicable statutes”.
The proposed amendment goes on to say that because SANC
had the power
to issue accreditation to academic institutions (such as UFH), it was
also obliged to monitor compliance with the
Nursing Act (the
relevant
provisions are a mystery) and that it had a “legal duty of
care” to ensure that UFH complies with the
Nursing Act. In
breach of this legal duty, SANC likewise refused or failed to
register the plaintiff as a learner nurse, thus unfairly depriving
the plaintiff of his Constitutional right to further education. This
caused him to experience shock and trauma, to fall behind
in his
studies, and to lose future income as “he could not complete
the degree in time or at all.”
[29]
It is further averred that SANC was negligent in failing to register
the plaintiff
as a learner nurse, and in failing to monitor and
enforce UFH’s compliance with the
Nursing Act, which
negligence
proper monitoring and the enforcement of compliance could have
limited or could have “averted” the plaintiff’s
loss, as the failure to monitor and the failure to comply with the
Nursing Act would
have been unearthed and would have been addressed
timeously (presumably by SANC). Furthermore, SANC was negligent
because it failed
to prevent the plaintiff from enrolling with an
institution that does not comply with the
Nursing Act, when
, by the
exercise of reasonable care and the taking of reasonable steps, it
could and should have done so.
[30]
Lastly, it is alleged that SANC was negligent in failing to inform
the plaintiff
“of any and all circumstances which could or
would harm him”, that SANC was negligent in not preventing
these circumstances
(which could or would harm the plaintiff) from
occurring, and that SANC was negligent in failing to protect the
plaintiff as required
in terms of the
Nursing Act.
[31
]
It is contended on SANC’s behalf that if the plaintiff suffered
damages
due to any alleged misrepresentations by UFH’s agents
to the effect that a grace period was given to academic institutions
for the waiver of the said requirement (which, so it is argued,
cannot be done in any event), such claim is not against SANC and
on a
different basis as the one on which the proposed amendment to the
particulars of claim is premised. According to SANC the
proposed
amendment is thus excipiable in that it fails to disclose a cause of
action.
[32]
I have
difficulty in making sense of the proposed amendment. I have some
understanding as to why SANC has elected to bring prima
facie valid
objections to the amendment within the purview of an alleged failure
to show that the plaintiff was in possession of
a valid “study
permit”.
[17]
I say this,
because I find substance in the contention that the plaintiff has
failed to make out a cause of action against SANC
in the proposed
amendment. The plaintiff has not managed to establish any causal link
(based on an alleged duty of care) between
the provisions of the
Nursing Act (or
any other legislation for that matter), and SANC’s
alleged refusal to allow the plaintiff to register as a learner
nurse.
Section 32
of the
Nursing Act obliges
the Council to register
a learner nurse, provided the learner has complied with the
prescribed conditions. It goes without saying
that one such condition
would be that an admitted foreigner must be in possession of a study
visa as contemplated in
s 13
of the
Immigration Act 13 of 2002
. As
pointed out on SANC’s behalf, it can hardly be held liable for
damages in delict if UFH allowed the plaintiff to study
without a
visa in terms of an alleged agreement which SANC was not a party to.
[33]
As
succinctly set forth in SANC’s heads of argument, liability
depends on the wrongfulness of the act or omission of the defendant.
Differently put, the conduct complained of must be legally
reprehensible. At the pleading stage, the plaintiff must at the very
least disclose the wrongful act or omission on which the cause of
action is based.
[18]
The
plaintiff has not done so. In the circumstances I am inclined
to agree with SANC. The proposed amendment is excipiable.
It does not
disclose a cause of action against SANC.
[34]
The parties
are
ad
idem
that
the primary objective of allowing an amendment is to properly
ventilate the dispute between the parties and to determine the
real
issues between them so that justice may be done.
[19]
The onus is on the objecting party to persuade the court that, as the
pleadings stand (or in this case, as the proposed amendment
stands),
no cause of action is or will be disclosed upon every interpretation
which the pleadings could possibly bear. The parties
also agree that
a court will usually allow an amendment unless it is
mala
fide
,
or if it will cause the objecting party prejudice which cannot be
cured by a costs order. The power of the court to allow material
amendments is, accordingly, limited only by considerations of
prejudice or injustice to the opponent.
[20]
[35]
By way of
example, an amendment would cause an injustice to the other side
which cannot be compensated by an appropriate costs order
if the
parties cannot be put back in the same position in which they were
when the pleading sought to be amended was filed.
[21]
Prejudice, on the other hand ‘embraces prejudice to the rights
of a party in regard to the subject matter of the litigation,
provided there is a causal connection which is not too remote between
the amendment of the pleading and the prejudice to the other
party’s
rights.’
[22]
The mere
loss of the opportunity of gaining time, for example, is not in law
prejudice or injustice.
[23]
Thus, if the real issue in a case is imperfectly or ambiguously
expressed in the pleadings, an amendment designed to place on record
the true issue will be allowed.
[24]
[36]
Courts have
also allowed amendments of prayers, but usually only if the amendment
does not introduce a new cause of action.
[25]
Save in exceptional cases, where the balance of convenience or some
other reason might render another course desirable, an amendment
ought not to be allowed where its introduction into the pleading
would render such pleading excipiable.
[26]
In other words, the issue proposed to be introduced must be a triable
issue. A triable issue is one which (a) if it can be proved
by the
evidence foreshadowed in the application for the amendment, will be
viable or relevant; or (b) as a matter of probability,
will be proved
by the evidence foreshadowed.
[27]
[37]
An
amendment should not be refused merely in order to punish the
applicant for some mistake or neglect on his part. His punishment
lies in him being mulcted in the wasted costs.
[28]
On the other hand, courts have on various occasions refused to allow
amendments where, even if they were allowed, the amending
parties
would still have no prospects of success on the amended
pleadings,
[29]
notwithstanding
the provisions of
rule 28(8)
which would allow the objecting party to
except or allege an irregular step (in this case for the second
time), after the amendment
has been granted.
[38]
SANC also
contends that the plaintiff has not made out a case for leave to
amend in his founding affidavit. At first glance, this
objection
seems rather curious. After all, SANC initially excepted to the
plaintiff’s pleadings, affording him the opportunity
to amend
them. It is however contended that, having been afforded the
opportunity to remove the causes of complaint, the plaintiff,
instead
of doing so, has delivered notice of a brand new set of pleadings,
which are, so it is argued, even more excipiable (if
that is
possible), than the first attempt. SANC contends that it is
constrained to object yet again, because a party may not sit
back and
say nothing, and then at the pleading stage complain that the
pleading is defective and that it was taken by surprise.
To this end
SANC relies on
Trans-Drakensberg
Bank Ltd (under judicial management) v Combined Engineering (Pty) Ltd
& Another
[30]
where the following is stated:
‘
Having already
made his case in his pleading, if he wishes to change or add to this,
he must explain the reason and show prima facie
that he has something
deserving of consideration, a triable issue: he cannot be allowed to
harass his opponent by an amendment
which has no foundation. He
cannot place on the record an issue for which he has no supporting
evidence, where evidence is required,
or, perhaps in exceptional
circumstances, introduce an amendment which would make the pleading
excipiable.’
[39]
And this seems to be to be what SANC is complaining of. The
plaintiff’s
original pleadings were at the very least, vague
and embarrassing, so it says. In terms of
rule 23(1)
, it gave the
plaintiff 15 days to remove the cause of complaint. The plaintiff
duly responded by giving notice of its amendment
which, if not
addressed, had the potential of exacerbating the problem instead of
curing it. SANC pointed this out to the plaintiff.
It was at pains,
in a seven page further notice of objection, to point out these
problems to the plaintiff, affording him a second
opportunity to cure
the defects complained of. The plaintiff elected not to. I have been
at pains to identify those averments in
the proposed amendment which
may be argued to have made the threshold required for a defendant to
at least plead to. My concern
is, that there are seriously
problematic areas which prima facie, fail to make out a cause of
action. Added to that is the fact
that this is not really an
application for an amendment. It is an application to start all over
again. The leave sought is for
substitution of the original
particulars of claim in their entirety. This being the position, it
would serve little purpose for
this court to embark on a pedantic
nit-picking readacting exercise infusing the first set of particulars
with snippets from the
second set, in an attempt to put Humpty Dumpty
back together again, when it cannot put him back on the wall where he
belongs. The
proposed amendment, read as a whole, in my view, at the
very least still fails to disclose a cause of action against SANC,
and
falls to be dismissed.
Costs
[40]
SANC has been constrained to occur costs on two occasions. Its
response to
the original pleadings and the proposed amendment has not
been frivolous, vexatious, litigious or malicious. On the contrary,
it
seems to me that it has gone to great lengths to assist the
plaintiff in identifying the weaknesses in his pleadings, and has on
both occasions, notified the plaintiff’s attorneys that it
would seek a punitive costs order against them if they persisted
in
framing their particulars of claim as they have done. In his heads of
argument and in arguing before me, SANC’s counsel
has prayed
for the application for leave to amend to be dismissed with costs on
an attorney and client scale. Having regard to
the circumstances of
this case, I am of the view that such an order is justified.
[41]
The application is dismissed with costs on the scale as between
attorney and
client.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Date
heard: 2 December 2021
Counsel
for the applicant/plaintiff: Mr S. Nzuzo
Instructed
by Makombe Bunyonyo Attorneys
EAST
LONDON
Tel
074 741 9772; 043 721 0910
chiningatapiwa@gmail.com
bunyonyot@gmail.com
Counsel
for the respondent/second defendant: Mr D.B. du Preez SC
Instructed
by Maponya Attorneys (
lynne@maponya.co.za
;
tasneem@maponya.co.za
;
phindulo@maponya.co.za
)
Care
of Hexana Attorneys
EAST
LONDON
Tel
043 743 2606
info@hexanaattorneys.co.za
Delivered
by way of electronic mail to the local attorneys on 3 February 2022.
[1]
Presumably in terms of rules 23(1) and 30(2)(b) of the Uniform Rules
of Court.
[2]
In terms of rule 28(3).
[3]
See
Alfred
Mc Alpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 531D
[4]
Ibid
[5]
Ibid
at
532D
[6]
Food
and Allied Workers Union v Ngcobo NO
2014
(1) SA 32
(CC) at 43F-44A
[7]
See
Roberts
Construction Co Ltd v Dominion Earthworks (Pty) Ltd
1968
(3) SA 255
(A) at 261E.
[8]
Ibid
at
262B
[9]
Lanificio
Veram SA v Marusel Fils (Pty) Ltd
1952
(4) SA 655
(A) page 660;
Pete’s
Warehousing and Sales CC v Bowsink Investments CC
2000 (3) SA
833 (E).
[10]
See
Els
v Weideman
2011
(2) SA 126
(SCA) at 132F
[11]
See
Majola
v Santam Insurance Co Ltd
1976 (1) SA 874
(SE) at 877A
[12]
Dusheiko
v Milburn
1964
(4) SA 648 (A)
[13]
Because the order did not form part of the application papers before
me, I sourced a copy from the registrar. It
transpires
that all the parties were represented on 20 March 2018, when an
order was granted removing the matter from the roll,
and granting
the plaintiff before me leave to approach the court on the same
papers, duly supplemented if necessary.
[14]
Case no EL 306/18 referred to above, was removed from the roll on 15
June 2021 with no order as to costs.
[15]
See
Cordier
v Cordier
1984
(4) SA 524
(C) at 533C
[16]
He is presumably referring to a study visa as defined and referred
to in the
Immigration Act 13 of 2002
[17]
The
Immigration Act 13 of 2002
makes reference to a permanent
residence permit, but when dealing with authority to temporarily
sojourn in the Republic
for purposes of transit, visitation, doing
business, conveyance, obtaining medical treatment, working, taking
part in an exchange
programme or studying for example, it refers to
a visa. Section 13 of the Act contemplates the issuing of a study
visa, in the
prescribed manner, by the Director-General of Home
Affairs, to a foreigner intending to study in the Republic for a
period not
less than the period of study, provided that the
foreigner complies with the prescribed requirements.
[18]
Gouda
Boerdery BK v Transnet
2005
(5) SA 490
(SCA) at 498
[19]
See
Cross
v Ferreira
1950
(3) SA 443
(CPD) at 447.
[20]
This is stressed in, for example,
Devonia
Shipping Ltd v MV Luis
1994
(2) SA 363
(C) at 369G.
[21]
See
Moolman
v Estate Moolman
1927
CPD 27
at 29.
[22]
South
British Insurance Co Ltd v Glisson
1963
(1) SA 289
(D) at 295H
[23]
See the remarks of Schreiner J in
Union
Bank of South Africa v Woolf
1939
WLD 222
at 225.
[24]
See
Slomowitz
v Vereeniging Town Council
1966
(3) SA 317
(A) at 329E-F.
[25]
See
Bestenbier
v Goodwill Municipality
1955
(2) SA 226
(W)
[26]
See
Cross
above.
[27]
See
Caxton
Ltd v Reeva Foreman(Pty) Ltd
[1990] ZASCA 47
;
1990
(3) SA 547
(A) at 565H-J;
Consol
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2)
2005
(6) SA 23
(C) at 36I-J
[28]
Union
Bank v Woolf
above
at 225
[29]
See for example
Lenferna
v Jerome
1925
(1) PH F20 (D).
[30]
1967 (3) SA 632
(D) 640