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[2021] ZALMPPHC 30
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OSZ Tayob Pietersburg Trading (Pty) Ltd v ROSPA Trading 49 CC and Another (2012/2016) [2021] ZALMPPHC 30 (25 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO:201 2/20l6
OSZ
TAYOB PIETERSBURG TRADING (PTY) LTD
PLAINTIFF
T/A
EH HASSIM
And
ROSPA
TRADING 49 CC
FIRST
DEFENDANT
JOSEPH
MMBANGISENI MUTAVHATSINDI
SECOND
DEFENDANT
JUDGMENT
MULLER
J
[1]
The applicants apply, on motion, for an amendment of their plea. The
application is opposed. I will
for the sake of convenience refer to
the parties as they are reflected on the pleadings.
[2]
The background succinctly stated is that the plaintiff instituted
action in 2016 against the first defendant
for the recovery of R855
867.94 based on a written contract which embodied a credit
application. The claim against the second defendant
is premised on a
written suretyship signed by the second defendant on 4 July 2014 on
behalf of the first defendant (the debtor)
as well as a written
acknowledgement of debt also signed by him on 4 July 2014, on behalf
of the first respondent. The defendants
pleaded and instituted a
counter-claim based on unjustified enrichment. The counter-claim need
not any attention as the amendment
sought is only directed at an
amendment of para 5 of the plea.
[3]
Initially para 5 of the plea was bald short and to the point. To
understand what the amendment and the
objection is about, reference
will be made to the relevant paragraphs in the particulars of claim
to which the plea relates.
It is pleaded in
paragraph 7, 8 and 9:
"7"
"On or about 22
December 2011 and at Polokwane, the
Second Defendant
bound
himself as surety and co-principal debtor
in solidum
with the
First Defendant for the due and proper fulfilment of all the
obligations of and for the punctual payment of all sums which
were or
may become due and payable by the First Defendant to the Plaintiff in
terms of, or in connection with or arising in any
way whatsoever out
of the purchase by the principal debtor form the Plaintiff of any
goods and/or rendering of services and/or
the provision of monetary
loans or arising out of any of the provisions of agreement or arising
from any other cause of action
whatsoever.
8
1.
8.1
On or about 4
th
of July 2014 and at Polokwane, the
Second Defendant
further bound himself as surety and
co-principal debtor
in so/idum
with the First Defendant for
the due and proper fulfillment of all the obligations of and for the
punctual payment of all sums which
were or may become due by the
First Defendant to the Plaintiff in terms of, or in connection with
or arising in any way whatsoever
out of the purchase by the principal
debtor form the Plaintiff of any goods and/or rendering of services
and/or the provision of
monetary loans or arising out of any of the
provisions of agreement or arising from any other cause of action
whatsoever
2.
8.2
A true copy of the
aforesaid Acknowledgement of Debt and Deed of Surety is annexed
hereto and forms part of
Annexure "0 52
2"
9
On or about 4
th
of July 2014 and at Polokwane the
Second Defendant
entered
into a written acknowledgment of debt and undertaking to pay the
outstanding balance including interest and legal costs
by no later
than 4 September 2014. A copy of the acknowledgment of debt and
undertaking to pay is attached hereto marked
Annexure "0522"
and the contents whereof the Plaintiff prays be read as if
incorporated herein" (The emphasis is my own.)
[4]
The plea with reference to paragraphs 7, 8 and 9 of the particulars
of claim states:
"5."
AD PARAGRAPH 7, 8 AND
9 THEREOF
5.1
The contents are admitted,
5.2
The First and Second Defendant further plead that any monies
due to the Plaintiff were settled in full.”
[5]
The plea in para 5.1 contains an admission that it is common cause
that the allegations in para
7, 8 and 9 are correct. In addition both
defendants pleaded that the debt has been settled in full.
[6]
The onus to prove that full payment has been made rest on both the
defendants..
See
Pi/lay
v
Krishna
1946 AD 946
, 958.
The notice of amendment
seeks to introduce a defence that a misrepresentation was made to the
first and second defendants which
move them to sign the deeds of
suretyships and the acknowledgment of debt.
[7]
The plaintiff objected to the proposed amendment on several grounds.
The first ground is that
the amendment will render the plea excipiable on the basis that it
will be vague and embarrassing. On the
ground that the plea will be
excipiable, the allegation is that the plea lacks particularity in
relation to the material facts
to make out a defence as required by
Rule 18(4) since the defendants have failed to allege how the
representation was made; who
made the representation; was it
foreseeable that the representation could induce the person to whom
it was made to make and/or
sign the acknowledgement of debt. The
plaintiff says that as the plaintiff is a juristic person the
identity of the person who
made the representation must be pleaded is
crucial to enable the plaintiff to identify the person in the first
place, and in the
second grounds if the person was authorized to bind
the plaintiff. The prejudice is that the plaintiff will be unable to
plead.
[8]
The second ground is that the plea failed to set out a complete cause
of action in that the defence
is based on a
misrepresentation, it must be pleaded
it was made
intentionally negligently or innocently
[9]
Thirdly, the pleas failed to identify the consequent transactions
without providing details of particularity
what these consequent
transactions were.
Fourthly, the allegation
that the acknowledgement of debt did not take into account and
reflect several payment made by the first
defendant is an allegation
of partial payment. The plea should set out how and to whom these
payment were made and does not allow
the plaintiff to identify the
dates and which payments were made.
Fifthly, the failure to
identify which debits and credits and debits with reference to the
allegation that annexure "EH2"
does not represent the true
and correct reconciliation statement.
[10
Sixthly, in the amendment they pleaded that the defendants are
in credit of R824 128-69. The amendment does not
allege how the
amount was calculated.
The second main ground is
that the pleading seeks to withdraw an admission. Counsel for the
plaintiff did not seriously persisted
with this ground in argument.
This ground is not sound.
[11]
The third main ground is that the amendment will cause an injustice
and prejudice to the plaintiff.
[12]
The fourth main complaint is that the amendment will prolong the
proceedings and increase the costs on the basis
that the plea as it
stands at the moment allowed the plaintiff to believe that it would
not have to prove what has been admitted.
[13]
It is important to mention that ever since
Moo/man v Estate
Moo/man
1927 CPD 27
, 29 the point of departure for a court faced
with an application to amend is that:
"the practical rule
adopted seems to be that amendments will always be allowed unless the
application to amend is ma/a
fide
or unless such amendment
would cause an injustice to the other side which cannot be
compensated by costs, or in other words unless
the parties cannot be
put back for the purpose of justice in the same position as they were
when they pleading which it is sought
to amend was filed."
[14]
Despite the liberal view in respect of amendments an applicant must
offer an explanation why the amendment is required
together with a
reasonable explanation why the amendment was only sought on September
2019. Similarly, the withdrawal of an admission
requires a full
explanation as to the
bona
fides
of the
defendant and in addition introduces a new defence all together. It
served the defence of payment. Instead rescission of
the
acknowledgment of debt and the suretyship agreement dated 04 July
2014 is claimed. The defence of payment will be restricted
to the
indebtedness arising out of the agreements during December 2016. It
is the defendant's case that they only discovered after
they
appointed an expert and after the expert conducted an examination the
reconciliation of the bulk account of the first defendant
that the
alleged fraudulent representation was discovered. The explanation for
the delay in my view is reasonable. As stated earlier
in this
judgment. Mr Groenewald did not argue strongly that an admission has
been withdrawn. The admission that the second defendant
signed the
documents will remain unaffected if the amendment is allowed. The
proposed amendment will amount to an admission and
avoidance which is
an acceptable way to plead. Ground 2 of the objection is therefore
rejected.
[15]
It was held in Crawford-Brunt v Kavnat and Another
1967
(4)
SA
308
(C) 310F-H that the excipiability of the pleading must be
approached as follows:
"It seems clear,
however, both from a reading of this case and of subsequent cases in
which
Cross
v Ferreira
has been referred to,
that such an amendment will only be refused on the ground that the
amended pleading would be excipiable if
it is clear that the
amendment would obviously render the pleading excipiable. The
operative words in the judgment in
Cross v Ferreira
at p 449
are "would be expiable" and not "may are expiable".
If the pleading would appear to be possibly open
to exception or even
if the court is of the opinion that the question of whether or not
the pleading is excipiable is arguable,
it would seem to be the more
correct course to allow the amendment".
[16]
The plaintiff contends that the pleadings do not comply with Rule
18(4) in that the failure to say who represented
the plaintiff and
whether the representation was made orally or in writing and finally
whether it was foreseeable that the representation
could induce the
person to whom it was made to sign the surety and the acknowledgment
of debt.
[17]
It is apposite to refer at this time to a problem with paragraphs 8
and 9 of the particulars of claim. They are
vague and failed to
disclose a cause of action. It will be recalled that it is pleaded in
paragraph 7 that the second defendant
(only) bound himself as surety
and co-principal debtor for the indebtedness of the first defendant
on 22 December 2011. And in
para 8 it is pleaded that the second
defendant (again) entered into a deed of suretyship on 4 July 2014
and in paragraph 9 it is
alleged that the second defendant, in his
personal capacity, entered into a the written acknowledgment of debt
on the same date.
[18]
The contrary emerged
ex
facie
the documents attached as
annexure "OSZ2" to the particulars of claim. The
acknowledgement of debt pertains to the indebtedness
of first
defendant and not the indebtedness of the second defendant as alleged
in paragraph 9. The said suretyship was not signed
by the second
defendant in his personal capacity but he was acting as the "debtor"
(who is the first defendant).
Prima facie
therefore, the
particulars in paragraph 7, 8 and 9 of the particulars of claim with
reference to the second defendant are vague
and embarrassing.
[19]
I am obliged to consider the amendment in isolation since it is
impossible to consider the amendment with regard to the
allegations
made in the particulars of claim which is, strictly speaking, not
worthy of a plea until the ambiguity has been cleared
up.
[20]
he plea in my view does not lack particularity with regard to the
representation which was made by
word or by conduct or both. In
Greary
&
Son (Pty) Ltd v Grove
1964 (1) (SA) 434
(A) 441C-D it was stated with regard to fraud
ex delicto:
“
The plaintiff does
not base its case upon a misrepresentation negligently made, but upon
a wilful falsehood, i.e. an intentional
wrongful act on the part of
the defendant. What it has to allege and prove, therefore, is that
the defendant has, by word or by
conduct or both made a false
representation, that it knew the representation to be false, that the
plaintiff has lost or will lose
customers, that the false
representation is the cause thereof, and that the defendant intended
to cause the plaintiff that loss
by the false representation.
[21]
It seems clear therefore that in the present case it would be
essential, if the defence is that the plaintiff has
made a fraudulent
misrepresentation to plead that the plaintiff made a false
representation knowing it to be false. It is insufficient
merely to
allege that it was false.
[22]
In
Breedt v Elsie Mortars (Edms) Bpk
1963 (3) SA 525
(A) at
529F-H.
“
Wat
wanvoorstellings betref, was daardie opmerking na
my mening
obiter. Die
geleerde Appelregter wou net wys dat
"vals" dubbelsinnig was. Maar in ons regsterminologie, waar
die woorde "valse
voorstelling" gebruik word, beteken dit
prima facie
slegs 'n voorstelling wat onwaar is....Daarom stem
ek met REGTER POTGIETER saam waar hy in die uispraak van die hof a
quo se:
Waar 'n regsgeleerde
derhalwe in 'n pleit die woorde 'valse voorstelling' gebruik is die
betekenis daarvan dat die wanvoorstelling
onskuldig is. lndien die
p/e iter bedrog wens te pleit, moet hy die bewering maak dat die
voorsteller bewus was daarvan dat die
voorstelling vals was."
[23]
In
Novick and Another v Comair Holdings Ltd and Others
1979
(2) SA 116
(Yv) 123 D-H; 149 D-H the court sets out what should be
pleaded by a party seeking to avoid a contract on the ground of a
misrepresentation:
"(a) That the
representation relied on was made.
(b)
That it was a representation as to a fact. A promise, prediction,
opinion or
estimate or exercise of discretion is not a representation
as to the truth or accuracy as to the truth or accuracy of its
content;
it can, however, often be construed as a representation that
the person making it is of a particular state of mind.
(c)
That the representation was false, In relation to an ordinary
representation
of fact, what must be shown is that the fact was not
as presented. When a prediction, opinion or estimate is relied upon,
what
must be shown is not merely that it was, or turned out to be,
erroneous, but that it did not represent the
bona fide
view,
at the time when it was expressed, of the person who expressed it.
(d)
That it was material, in the sense that it was such as would have
influenced a reasonable
man to enter into the contract in issue.
(e)
That is was intended to induce the person to whom it was made to
enter into
the transaction sought to be avoided. This element is
omitted from some of the judicial formulations of the law relating to
misrepresentation.
But that, I think, is
per incuriam,
and not
because of an intention to suggest that it is not a necessary
element."
[23]
The plea in the proposed amendment accords with the averments
necessary for a defence of innocent misrepresentation but certainly
not on the basis of a fraudulent misrepresentation which is the case
of the defendants. The deponent Meg McTyre stated in paragraph
25 and
explicitly in paragraph 36 and 39 of the replying affidavit:
"36. The applicants
submit that a proper case has been made out for fraudulent
misrepresentation for the reasons contained
in this application."
and also in paragraph 39:
39. The applicants submit
the Respondent should not be afforded the unjust advantage of being
able to rely on an Acknowledgment
of Debt agreement which, the
applicants submit was fraudulently induced for the reasons contained
in the Founding Affidavit as
well as the reasons contained herein."
[24]
It will be recalled that the deponent to the affidavits on
behalf of the defendants is a practicing attorney which knows what
the
difference is between an innocent misrepresentation and a
fraudulent misrepresentation . She had the latter in mind in the
proposed
plea as the defence that the defendants wished to introduce.
[25]
I am of the view that the amendment should be refused on the ground
that an allegation that the representation which was made,
was known
to be false, which is necessary allegation to sustain a plea of a
fraudulent misrepresentation has not been pleaded and
renders the
plea excipiable.
[26]
It is unnecessary to deal with the remainder of the objections.
ORDER
(1)
The amendment is refused with costs.
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION:
POLOKWANE
APPEARANCES
•
1.
For the Plaintiff
•
2.
For the Respondent
:
RJ Groenewald
:
B Manning
•
3.
Date judgment reserved : 28 May 2021
•
4.
Date Judgment delivered: 25 June 2021