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[2021] ZAGPPHC 350
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Muller N.O and Others v Gomes and Another (8699/2020) [2021] ZAGPPHC 350 (18 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED
18/5/2021
CASE NO.:
8699/2020
In
the matter between:
JOHANNES ZACHARIAS HUMAN
MULLER N.O.
AVIWE NTANDAZO NDYAMARA N.O.
MANTLA PROFESSOR MADLALA N.O.
(In their capacities as the
joint liquidators of SWIFAMBO RAIL LEASING (PTY) LTD:
Registration No.
2010/007968/07)
AVIWE NTANDAZO NDYAMARA N.O.
NICHOLAS TIMKOE N.O.
(In their capacities as joint
liquidators of SWIFAMBO RAIL HOLDINGS (PTY) LTD: Registration No.
2011/109702/07)
First applicant
Second applicant
Third applicant
Fourth applicant
Fifth
applicant
And
DOMINGOS FRANCISCO ANTONIO
GOMES
MARIA
CAETANO DA CRUS GOMES
First respondent
Second
respondent
JUDGMENT
van der
Westhuizen, J
[1]
This is an application for leave to amend particulars of claim in an
action instituted
by the applicants, as plaintiffs in their
respective capacities as joint liquidators of two companies in
liquidation, against the
respondents, as defendants in the action.
This application for leave to amend is opposed.
[2]
On being served with the combined summons issued by the applicants,
the respondents
filed a notice of intention to defend the action
against them. In response to the summons, the respondents served a
notice in terms
of the provisions of Rule 23(1) calling upon the
plaintiffs to remove a cause of complaint, on the grounds that the
particulars
of claim are vague and embarrassing and/or lack averments
to sustain a cause of action. Having received no response to the Rule
23(1) notice, the respondents filed an exception to the applicants’
particulars of claim.
[3]
The applicants thereupon gave notice of an intention to amend their
particulars of
claim. A notice of objection by the respondents was
filed in response to the notice of the intention to amend. The
applicants filed
a formal application for leave to amend their
particulars of claim. The formal application for leave to amend was
supported by
an affidavit. The respondents filed an opposing
affidavit to which the applicants replied.
[4]
For the purposes of this judgment, it is required to restate the
requirements when
a party intends to amend its pleadings and those
when such application is objected to.
[5]
Rule 28 of the Uniform Rules of Court stipulates the provisions that
apply when a
party intends to amend its pleading. These are:
(a)
A party who desires to amend a pleading,
excluding a sworn statement, shall give notice of such intention to
all parties;
(b)
The said notice shall state that unless
written objection to the proposed amendment is delivered within a
stipulated time, the amendment
would be effected;
(c)
An objection to a proposed amendment shall
clearly and concisely state the grounds upon which the objection is
founded;
(d)
If an objection that complies with
the stipulated requirements is received within the prescribed time
period, the party wishing
to amend may, within a stipulated time
period, lodge an application for leave to amend;
(e)
Should no objection to the proposed
amendment be delivered, every party who received the notice of
intention to amend shall be deemed
to have consented to the amendment
and the party wishing to proceed with the amendment shall effect the
amendment in the prescribed
manner;
(f)
Where a court has granted an order for
amendment, the amendment shall be effected in the prescribed manner
within a stipulated time
period;
(g)
A party affected by the amendment may
within a stipulated time period make any consequential adjustments to
its pleading, and may
take the steps contemplated in Rules 23 and 30
of the Uniform Rules of Court;
(h)
A party giving notice of an amendment
shall, unless a court otherwise direct, be liable for the costs
occasioned by the amendment.
[6]
The respondents lament the applicants’ approach to this
application for leave
to amend. First and foremost, the respondents
submit that the proposed amendment does not address the grounds of
objection, and
in the event that the amendment is granted, their
objections would remain. The respondents secondly lament, in the form
of a point
in limine
taken in their opposing affidavit, that
the applicants did not deliver their application for leave to amend
within the prescribed
time period and hence fell foul of the
provisions of Rule 30. However, the respondents did not proceed with
the steps to be taken
as provided in Rule 30. No notice in terms of
Rule 30(2) was delivered, and furthermore, the respondents filed
their opposing affidavit
in lieu thereof, thus taking a further step
as contemplated in Rule 30. Nothing turns on that issue and the point
in limine
stands to be refused. It is to be recorded that the
opposing affidavit is deposed to by the respondents’ attorney
of record,
no confirming affidavit from either of the respondents was
filed.
[7]
The respondents’ exception in terms of Rule 23, as uploaded on
CaseLines
, is illegible. It appears as an attachment to the
opposing affidavit. The applicants have summarised the grounds in
their founding
affidavit in support of their application for leave to
amend. The respondents do not appear to dispute that summary.
[8]
The applicants state in their application for leave to amend that the
proposed amendment
is pursued, not in acknowledgement of the
complaints, but in an endeavour to obtain a proper ventilation of the
dispute between
the parties, so that justice may be done.
[9]
In their exception, the respondents raised 7 grounds. Those are:
paragraph 4 of the
particulars of claim was vague and embarrassing,
lacking sufficient particularity to sustain the allegation; paragraph
5.5 of the
particulars of claim was vague and embarrassing, lacking
sufficient particularity to support the allegation; a failure to
plead
a connection between Railpro and Swifambo, and Railpro and
Prasa respectively, having pleaded in paragraph 1 (sic) read with
paragraphs
3.5 and 3.6 of the particulars of claim that Railpro and
Swifambo are separate entities; issue is taken with the misnumbering
in
the particulars of claim at paragraph 7 thereof; a failure to
disclose a cause of action for the purposes of
section 26
of the
Insolvency Act, 24 of 1936
by failing to disclose who had made the
disposition; a failure to disclose a cause of action for the purposes
of
section 31
of the
Insolvency Act by
failing to plead the conduct
of the respondents amounting to collusive and/or fraudulent conduct;
a failure to disclose a cause
of action for the purposes of the
Actio Pauliana
by failing to plead which entity’s estate
was diminished and in what manner. Railpro and Swifambo are the two
entities that
are in liquidation.
[10]
Having delivered the exception following on the notice to remove the
cause of complaint, the
respondents failed to enrol the exception,
presumably due to the filing of the notice of intention to amend the
particulars of
claim. The respondents hold the view that that
exception remains and would be enrolled for adjudication, once this
application
for leave to amend the applicants’ particulars of
claim has been dealt with.
[11]
The exception is directed at the applicants’ particulars of
claim as un-amended. The objection
raised in terms of
Rule 28(3)
is
aimed at the proposed amendment of the particulars of claim. In their
opposing affidavit, the respondents raise grounds of objection,
which
allegedly differ from those stipulated in their notice to remove the
cause of complaint in terms of
Rule 23.
In their opposing affidavit
the respondents rely on 5 grounds of opposition.
[12]
A copy of the notice of objection filed in response to the
application for amendment was attached
to the answering affidavit and
was not uploaded separately on
CaseLines
. When documents are
not uploaded onto
CaseLines
in an appropriate manner,
navigating through a maze of documents bundled together, makes it
extremely difficult to adjudicate upon
the matter. What further
complicates the adjudication of this matter is the fact that the
respondents did not upload onto
CaseLines
their notice calling
for the removal of the cause for complaint in terms of the provisions
of
Rule 23(1).
[13]
The respondents’ notice of objection in terms of
Rule 28(3)
does not comply with the requirements of the said Rule. Apart from an
oblique reference to the notice filed in terms of
Rule 23(1)
, the
specific grounds of objection are not clearly determinable. This is
more so where the objector raises different grounds in
its opposing
affidavit. The primary objection raised in the
Rule 28(3)
notice is a
lamentation of apparent non-compliance on the part of the applicants
with regard to prescribed time periods in respect
of an application
for leave to amend. This complaint would provide a basis for a
Rule
30
notice. It does not form a basis for objection as contemplated in
Rule 28(3).
The
Rule 30
approach was glaringly not followed by the
respondents.
[14]
As recorded earlier, the complaint raised in the notice of objection
relating to the proposed
amendment, obliquely records that the
proposed amendment would not address the issues raised earlier in the
notice in terms of
Rule 23(1).
The grounds of objection are thus to
be determined with reference to a different document (which is not
accessible), and clearly
does not comply with the requirements of
Rule 28(3).
If that process is to be followed, then it is not
understood why different, and less, grounds were raised in the
opposing affidavit,
particularly when no indication is given which of
the initial 7 grounds have become resolved. The notice of objection
in terms
of
Rule 28(3)
does clearly not comply with the requirements
of being “clear and concise”. An oblique reference to a
different document
is not “
clear and concise
”.
[15]
Furthermore. the respondents in their opposing affidavit record
emphatically that the “
majority of the proposed amendments
are uncontroversial and merely address a number of drafting errors in
the particulars of claim.
” The respondents then state that
having regard to the exception and the
Rule 28(1)
notice, “
there
are a number of causes of complaint which arise and render the
proposed particulars of claim excipiable for the purposes of
Uniform
Rule 23.
”
[16]
What is then pled, are grounds of objection that relate to different
paragraphs in the particulars
of claim, with oblique reference to the
initial particulars of claim in its un-amended form. The focus is
diverted to different
complaints.
(a)
In ground one, and with reference to
paragraphs 5, and 8 of the proposed amendment, the focus is on
payment of amounts that apparently
do not implicate the respondents;
(b)
Ground two is directed at paragraph 7 of
the proposed amendment. The complaint is that the proposed amendment
lacks clarity as to
what money was “
disbursed”
by the defendants due to further lacking allegations of what moneys
they had received. This ground is linked to the first ground;
(c)
In ground three it is alleged that an
increase of the amount initially claimed is sought in the proposed
amendment. The complaint
raised is that no allegations are pleaded to
support any
alternative
amount claimed as proposed to be amended. The complaint is directed
at an alleged “no connection” between Railpro and
the
respondents;
(d)
Ground four is directed at a lack of
support for alternative claims, either in respect of amounts, or
parties;
(e)
The fifth ground relates to proposed
paragraphs 9,10 and 11 of the proposed particulars in its amended
form that relate to the claims
under
sections 24
and
31
of the
Insolvency Act and
it is stated that those paragraphs remain
excipiable. The complaint in a non-specific manner being apparently
one of lack of particularity.
[17]
From the opposing affidavit, read as a whole, it appears that the
only connecting theme between
the exception (which is accessible) and
the
Rule 28(3)
objection is that of a lack of particularity. That
issue is insufficient to determine what the precise complaint of the
respondents
is.
[18]
Considering the respondents’ objections, one apparently has to
read the exception (which
is accessible) together with the complaints
set out in the opposing affidavit, despite not being clearly stated,
or a request,
to do so. The respondents in their opposing affidavit
fail to deal with the grounds raised in the
Rule 23(1)
notice to
remove the cause of complaint, or the exception. The court is now
required to wade through the exception and the opposing
affidavit to
ascertain the “
clear and concise
” objections
supposedly raised by the respondents in their non-specific
Rule 28(3)
notice. That clearly does not comply with the requirement of “
clearly
and concisely”
.
[19]
It is clear from a purposive reading of the respondents’
exception and their subsequent
Rule 28(3)
objection, that the
respondents pick on specific passages in the particulars of claim as
un-amended and the proposed amendment.
However, the respondents fail
to read those passages in their respective own contexts and fail to
read same within the respective
contexts of the two documents as a
whole.
[1]
[20]
When reading the initial particulars of claim as a whole, and in
conjunction with the proposed
amendment as a whole, in my opinion,
the particularity pled is sufficient to enable the respondents to
plead thereto. The applicants
are not obliged to plead the
facta
probantia
, but only the
facta probanda
in support of the
particular cause of action. From the aforementioned lamentations of
the respondents, they seek detailed allegations
in regard to the pled
causes of actions. The respondents are not entitled to that. That
much would be revealed by the evidence,
such of which the applicants
may be able to present to the court.
[21]
Mr Eagon, who appeared on behalf of the respondents, readily conceded
that the respondents required
“
more flesh to the skeleton”
.
The submission was not that the “
skeleton”
was
indeed lacking in itself, which may have altered the position in
respect of any objection raised. The said concession implied
“some
flesh” having been pled, i.e. that at least the skeletal
averments in respect of the cause of action were pled.
The “
more
flesh”
required relates to
facta probantia
to
support the
facta probanda
pled.
[22]
What is required of a party is to either admit, or to deny, or to
confess and avoid the allegations
pled.
[2]
This, in my view, the respondents can do. From the foregoing there is
no merit in the oblique objection raised to the proposed
amendment.
It follows that the application to amend stands to be granted.
[23]
There remains the issue of costs. The applicants seek an indulgence
and in terms of the provisions
of
Rule 28
, the applicant should bear
the costs occasioned by the amendment. However, the applicants seek a
punitive costs order on the ground
that the opposition was frivolous.
On the other hand, the respondents also seek a punitive costs order.
[24]
In my view, both parties have been remiss in following and complying
with the stipulated requirements
relating to amendment of pleadings
and the opposition thereto as recorded earlier. A fair and reasonable
order in this matter would
be one that each party is to pay its own
costs.
I grant the following order:
1.
The plaintiffs’ particulars of claim
are to be amended in terms of the plaintiffs’ Notice of
Amendment dated 30 June
2020 and annexed hereto marked NOA1-NOA18;
2.
The plaintiffs are directed to deliver the
amended pages of their particulars of claim within 10 days from the
date of this order;
3.
The normal Court Rules will apply for the
delivery of any subsequent pleading by the defendants;
4.
Each party is to pay its own costs.
C J
VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
On
behalf of Applicant: P J
Greyling
Instructed
by:
Schabort Potgieter Attorneys
On
behalf of Respondent: G R Eagon
Instructed
by:
Chris Greyvenstein Attorneys
[1]
Nel
et al NNO v MCarthur et al
2003(4) SA (T0 at 149BF-G;
Troskie
v Von Holdt et al
(2704/2012) [2013] ZAECGHC 31 (11 April 2013) at [20]
[2]
Rule
27(2) of the Uniform Rules of Court.