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[2021] ZAGPJHC 859
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Dissilio Investments (Pty) Limited v Nedbank Limited (34755/2019) [2021] ZAGPJHC 859; [2022] 3 All SA 715 (GJ) (19 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 34755/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
DATE
OF HEARING: 13 May 2021
In
the matter between:
DISSILIO
INVESTMENTS (Pty) Limited
Plaintiff
(REGISTRATION
NUMBER: 2013/184440/07)
And
NEDBANK
LIMITED
Defendant
(1951/000009/05)
JUDGMENT
NYATHI
AJ
A.
INTRODUCTION
[1]
The Plaintiff instituted action against the Defendant on 04 October
2019.
Pleadings eventually closed and the parties convened and held a
pre-trial conference in May 2020. Trial bundles were prepared, and
the matter was set down for trial on the 02 November 2020.
[2]
Despite the mutual efforts of both parties to prepare adequately and
timeously,
the Plaintiff became of the view that it desired a
significant amendment. It made this known to the Defendant.
[3]
The matter was by agreement between the parties, removed from the
trial roll,
legal costs being reserved, and the matter was postponed
sine die, and is still pending the allocation of a new trial date.
[4]
The Plaintiff prepared an extensive amendment and served a notice of
amendment
on the Defendant. The Defendant opposes the amendment.
[5]
In the amendment, Plaintiff seeks an adjustment of certain averments
in its
particulars of claim; and the introduction of further claims
for repayment and/or compensation and/or damages from the Defendant
—
arising from the contractual relationship between the parties.
[6]
The Defendant opposes the proposed amendment on the following
grounds:
6.1
It alleges that
the Plaintiff’s claims have prescribed through the effluxion of
time.
6.2
The amendment
contains mala fide allegations.
6.3
The amended
particulars of claim would be excipiable and therefore cause an
embarrassment to the Defendant. And,
6.4
Resulting, if
the amendment were to be granted, in prejudice to the Defendant.
[7]
The Defendant has now set down his substantive application for leave
to amend
before me.
THE
LAW ON AMENDMENTS
[8]
Amendments to pleadings are regulated by Rule 28 of the Uniform Rules
of
Court. In terms of this rule, a party desiring to amend any
pleading should notify all other parties of his intention to amend
and furnish particulars of the amendment. The court may, subject to
circumstances dealt with in the rule, at any stage before judgment
grant leave to amend any pleading or document.
[9]
The primary object of
allowing an amendment is to obtain a proper ventilation of the
dispute between the parties, to determine the
real issues between
them, so that justice may be done.
[1]
[10]
In order to succeed in
its application to amend its Particulars of claim, a Plaintiff must
prove that its application is not
mala
fide
and
would not cause the other party such prejudice as cannot be cured by
an appropriate order for costs. In
Moolman
v Estate Moolman
[2]
it was stated that an
amendment would cause an injustice to the other side which could not
be compensated by costs if – “
the
parties cannot be put back for the purpose of justice in the same
position as they were when the pleading it is sought to amend
was
filed”.
[3]
[11]
An application to amend
is an interlocutory application as contemplated in rule 6 (11) and
need not be brought on notice of motion
supported by affidavit.
[4]
[12]
A court hearing an
application for an amendment has a discretion whether or not to grant
it, a discretion which must be exercised
judicially.
[5]
PLAINTIFF’S
PARTICULARS OF CLAIM
[13]
In the relevant paragraphs 3 and 4 of its particulars of claim, which
the Plaintiff seeks to
replace entirely, the Plaintiff has pleaded
its case as follows:
“
3.
On or about 15 October 2013 the Plaintiff entered into a written loan
agreement with
the Defendant in terms of which, inter alia, the
Plaintiff agreed to lend money to the Defendant to assist the
Defendant in developing
a shopping mall known as the Heidelberg
Shopping Mall ("the project")”.
“
4
Annexed hereto marked annexure "A" is a copy of the
aforesaid loan agreement
("the loan agreement").”
THE
PROPOSED AMENDMENTS
[14]
In terms of the proposed amendments Paragraphs 7, 8 10 15, 19 of the
particulars of claim are
to be renumbered.
[15]
The proposed amendments are as follows:
“
1.
By inserting as a preamble heading, immediately after the description
"Particulars
of Claim", and prior to the introduction of
averment 1 thereof, the words "First Claim".
2.
By deleting the existing paragraph 3 thereof in its entirety, and
substituting
it with the following averments, comprising the new
paragraph
3: -
"3.1. On or about the 30'" August 2013, alternatively,
on or about the 18
th
September 2013, and at
or near Johannesburg, one Jaron Jacob Tobias and one Jacobus
Marthinus Johannes Coetzer, acting on behalf
of a company to be
formed (on the one hand) and the Defendant (duly represented by one
Brenda Sithole and one Mbuso Mashinini (on
the other hand) partially
signed and considered entering into a loan agreement, with one
another;
3.2. On about the 5'"
November 2013, and at or near Johannesburg, the Plaintiff duly
represented by Johannes Marthinus Jacobus
Coetzer and Jaron Jacob
Tobias, entered into a written loan agreement ("the property
loan agreement"), with the Defendant
(at the time duly
represented by Boitumelo Gladys Letsoalo and Kashrie Sewlal), in
terms of which, inter alia, the Defendant agreed
to lend money to the
Plaintiff to assist the Plaintiff in developing a shopping mall
complex known as the Heidelberg Shopping Mall
("the project")."
3.
By deleting paragraph 4 thereof in its entirety, and substituting it
with the following averments, comprising the new paragraph
4: -
"The property
loan agreement comprised two documents, to wit; firstly, the document
described as "property loan agreement"
(a copy of which is
attached to the Defendant's Plea and marked as Annexure D1.1]; and
secondly, the loan schedule (dated 15 October
2013, replacing the
loan schedules of 30 August 2013 and 18 September 2013) — (a
copy of which is attached to the Defendant's
Plea, and marked
Annexure D1.2). Throughout the pleadings, the combination of
Annexures D1.1 and D1.2 read in conjunction with
one another, will be
referred to as the "property loan agreement". "
4.
By renumbering the
existing paragraph 7 thereof, as the new paragraph “7.1”.
5.
5.
By inserting immediately after paragraph 7.1 and prior to the
existing paragraph
8, the following averments-
"7.2
Upon a proper interpretation of clause 5.4 of Annexure D.1.2. of the
property loan agreement, the Defendant
was not entitled to levy an
early repayment fee as against the Plaintiff in the event of the
Plaintiff effecting repayment of the
outstanding balance of the loan
amount, once accrued interest, fees, costs and other charges had
already been unilaterally debited
by the Defendant, in the
Plaintiff's loan banking accounts with the Defendant.
7.3
The Plaintiff avers that the words "amount reasonably determined
by Nedbank" ("the incorrect
provision"), as currently
stipulated in clause 5.3 of the Fixed-Rate Addendum, constitute
provisions that are contra bonos
mores; alternatively, against public
policy and not in the public interest, and accordingly, fall to be
severed from the remaining
portions of clause 5.3 thereof ("the
severance"), alternatively, is void.
7.4
7.4.1.
Alternatively to paragraph 7.3 hereof, clause 5.3 of the Fixed-Rate
Addendum, did not reflect the common continuing intention
of the
parties correctly. The common continuing intention of the parties, as
it existed when the Fixed-Rate Addendum was reduced
to writing, was
to the effect that the words "amount reasonably determined by
the parties jointly" ("the correct
provision") ought
to have been inserted in the Fixed-Rate Addendum. Alternatively, the
incorrect provision was neither discussed,
nor agreed to, by the
Plaintiff prior to signature;
7.4.2. Accordingly, a
mistake occurred in the drafting of clause 5.3 and by the insertion
of the incorrect provision— either
as a result of a bona fide
mutual error; alternatively, as a result of an intentional act on the
part of the Defendant; further
alternatively, as a result of a
mistake common to the parties in drafting the Fixed- Rate Addendum,
in such a manner as to include
the incorrect provision, or to exclude
the correct provision; 7.4.3. In the circumstances, the parties
signed the Fixed-Rate Addendum,
in the bona fide but reasonably
mistaken belief, that it recorded the correct provision and that it
contained the true agreement
between the parties.
7.4.3. In the
circumstances, the parties signed the Fixed-Rate Addendum, in the
bona fide but reasonably mistaken belief, that it
recorded the
correct provision and that it contained the true agreement between
the parties.
7.5.
Further alternatively to sub-paragraphs 7.2, 7.3 and 7.4 hereof, the
Defendant acted mala fide, in not alerting the Plaintiff
to the
inclusion of the incorrect provision, whether prior to signature or
timeously, or at all.
7.6.
The Plaintiff accordingly demands rectification of the Fixed-Rate
Addendum, to include the correct provision, in order to conform
with
the common continuing intention of the parties."
6.
By renumbering the existing paragraph 8 thereof, as the new paragraph
"8.1".
7.
By inserting immediately after sub-paragraph 8.1, the following
averments:
"8.2. Insofar as
the Fixed-Rate Addendum document, made provision in clause 5.1.2.
thereof, for a repayment schedule to be
attached thereto, such
document was never attached to the fixed rate addendum, and
accordingly, the Defendant is estopped from
alleging that any
repayments effected by the Plaintiff in reduction of the outstanding
capital loan balance, were conducted other
than in accordance with
the Defendant's repayment schedule."
7.
By renumbering the existing paragraph 10 thereof, as the new
paragraph “10.1”.
8.
By inserting, as a second sentence, in the newly renumbered paragraph
10.1 thereof, the following averments:
"The Plaintiff
avers that upon a proper interpretation of the clauses comprising
Annexures D1.1 and D1.2 to the property loan
agreement, that the
Plaintiff was not obliged to effect payment to the Defendant, of an
early repayment fee — whether as
contended for by the
Defendant, or at all."
9.
By inserting immediately after paragraph 10.1 thereof, the following
averments:
"10.2
The Plaintiff avers that upon a proper interpretation of the clauses
comprising the fixed rate addendum,
the Plaintiff was not obliged to
effect payment to the Defendant, of any breakage costs —
whether as contended for by the
Defendant, or at all".
10.
By inserting immediately after the existing paragraph 11 thereof, and
prior to paragraph 12 thereof,
the following averments:
"11.1 The
parties had agreed, as appears from Annexure D.1.1of the property
loan agreement, that the fixed rate addendum,
would be signed
simultaneously therewith. In as much as the fixed rate addendum was
not signed simultaneously with Annexure D1.1
of the property loan
agreement, but only signed in isolation on 10 April 2014, the fixed
rate addendum, falls to be treated pro
non scripto, and therefore, to
be set aside, alternatively is void”.
11.2
Alternatively to paragraph 11.1. hereof, and notwithstanding the
provisions of clause 4.3 of Annexure
D.1.2.of the property loan
agreement, the parties failed to agree at a future date, as to the
contractual fixed rate, that would
be applicable to the fixed rate
loan period. Accordingly, the fixed rate addendum falls to be treated
pro non scripto, and therefore,
to be set aside, alternatively is
void."
11.
By renumbering the existing paragraph 12 thereof, as the new
paragraph "12.1".
12.
By inserting after the new paragraph 12.1, following averments: -
"12.2 The
Plaintiff was only obliged to effect the payment of breakage costs to
the Defendant, arising from any conversion
and/or early repayment, if
it had failed to give at least 5 (five) business days' notice of its
intention to do so, to the Defendant
(and as provided for in clause
5.2 of the Fixed - Rate Addendum). The Plaintiff afforded an ample
notice period to the Defendant,
alternatively afforded a notice
period of its intentions, in excess of 5 (five) business days to the
Defendant."
13.
By renumbering the existing paragraph 15 thereof,
as paragraph "15.1"; and inserting the word
"property"
in between the words
"the"
and
"loan",
therein.
14.
By inserting immediately after sub-paragraph 15.1, the following
averments:
"15.2
Alternatively to paragraph 15.1 hereof, the Plaintiff avers that it
was not obliged to effect payment of
an early repayment fee; nor
payment of breakage costs, to the Defendant — whether as
contended for by the Defendant, or at
all."
15.
By inserting in paragraph 19 thereof, immediately before the words
"the Plaintiff paid
the breakage costs", the following
averments: -
"In the incorrect
and reasonable but mistaken belief that breakage costs were payable,
the Plaintiff did not object timeously
to the Defendant unilaterally
appropriating and adding breakage costs, to the outstanding loan
balance, and".
16.
By inserting in the existing paragraph 22, the words
"and is
sine causa
and"
immediately before the word
"constitutes".
17.
By introducing, immediately after the existing paragraph 23 thereof,
the following averments:
"24
The Plaintiff has complied or substantially complied with all of its
contractual obligations
arising from the period of a contractual
relationship between the parties, more particularly, during the
period 31 October 2013
until 22 December 2017."
18.
By inserting immediately after paragraph 24,
the following averments:
"Second Claim
25.1
At the inception of the contractual relationship between the parties,
alternatively, at the time of
the signing of the property loan
agreement, the parties agreed that the Defendant would levy an
overall aggregate service fee of
R 2 800 000, to the Plaintiff on the
understanding that the duration of the property loan agreement, would
comprise a maximum of
75 consecutive months.
25.2
Insofar as the addendum to the property loan agreement (Annexure "C"
hereto), altered the
effective commencement and termination date of
the new loan period, the Plaintiff's repayment of all and any monies
outstanding
to the Defendant effected on 21 December 2017, occurred
one day prior to the agreed and anticipated termination date of the
new
loan period.
25.3
In these circumstances, the Plaintiff avers that the Defendant was
not entitled to payment of the full
R2,800,000 service fee.
25.4
Given the duration of the addendum to the property loan agreement,
from 31 October 2017 until 31 January 2018;
alternatively, until the
date of transfer of the Plaintiff's share in and to the project, to
Community Property Limited ("the
transfer), whichever occurred
first; the Plaintiff avers that the new loan period terminated on 22
December 2017, being the date
of the transfer.
25.5
The Plaintiff avers that it is entitled to a proportionate reduction
of the service fee (as agreed
to on 5 November 2013; alternatively,
as agreed on the date of the fixed rate addendum on 10 April 2014;
further alternatively,
as agreed to on the date of the addendum to
the property loan agreement on 31 October 2017).
25.6
Accordingly, the originally — envisaged duration of the loan
period for 75 consecutive months was terminated
after 50 consecutive
months, thereby entitling the Plaintiff to a one- third reduction of
the service fee.
25.7.
In the circumstances, the Defendant has unjustly enriched itself by
procuring payment of the full service-fee
of R 2 800 000 to itself,
in circumstances where it had no right to do so.
25.8
The Defendant's conduct in this regard, is sine causa and constitutes
an unjust enrichment to the prejudice
of the Plaintiff".
19.
By deleting prayer (a) and renumbering the remaining prayers as
prayers (a), (b) and (c),
respectively.
20.
By introducing the following prayers after prayer (c): -
"(d) an order
rectifying the property loan agreement, to insert the correct
provision and delete the incorrect provision;
(e) alternatively, to
prayer (d), an order declaring the property loan agreement and the
fixed rate addendum as terminated and/or
cancelled;
(f)
an order that the Defendant is not entitled to levy a breakage cost,
nor to
levy an early repayment fee;
(g)
an order that the Defendant refund to the Plaintiff the full breakage
costs in the
amount of R1,107,556.78;
(h)
an order that the Defendant refund to the Plaintiff the full early
repayment fee of
R1,080,470.58.
(i)
an order that the Defendant is not entitled to impose a full service
fee;
(j)
an order that the Defendant refund to the Plaintiff one third (33.3%)
of the
service fee, being R 933 333.33."
[16]
Defendant’s first
objection to the amendment is that the Plaintiff seeks to introduce a
new claim that has already prescribed.
I am unable to see where
prejudice presents itself in this regard since prescription can be
met with a special plea in any event.
The amendments are on the whole
clarificatory and are part and parcel of the Plaintiff’s
original right of action.
[6]
[17]
The second ground of
objection is that the Plaintiff’s application is
mala
fide.
The
general approach of our courts has been to allow amendments where
this could be done without prejudice to the other party. In
Moolman
v Estate Moolman & Another
,
[7]
Watermeyer J set out the
general approach as follows:
“
The practical
rule adopted seems to be that amendments will always be allowed
unless the application to amend is mala 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 the pleading which is sought to be amended
was filed.”
[18]
The third ground is that
the amended particulars would be excipiable. A perusal of the
proposed amendment is more to place on record
the true issues around
the dispute. This is permissible.
[8]
[19]
The Fourth ground of
objection is that if an amendment were to be granted, the Defendant
would suffer prejudice. The amendment is
usually granted if such an
amendment would not cause an injustice to the Defendants which cannot
be compensated by an order of
costs in respect of such an amendment,
in other words, unless the parties cannot be put back, for the
purposes of justice, in the
same position as they were when the
pleading which is sought to be amended, was filed;
[9]
[20]
In the result, the objection is overruled, and the following order is
made:
1.
The application for amendment is hereby granted.
2.
The Plaintiff is hereby granted leave to amend its particulars
of
claim in accordance with its notice to amend in terms of Rule 28 (1)
dated 4
th
January 2021.
3.
The Plaintiff is to effect the amendment within ten days from
the
date of this order by service of the amended pages.
4.
The Defendant is allowed to effect consequential amendments
to its
plea within fifteen days from the date of service of the amended
pages.
5.
The Plaintiff is ordered to pay the Defendant’s costs
of this
application.
J.S.
NYATHI
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
Date
of Judgment: 19 July 2021
On
behalf of the Appellant: Adv CC Ascar
Instructed
by: DEWEY HERTZBERG LEVY INC
10
th
Floor, Office Towers
Sandton
City; SANDTON
Tel:
011 883 4512
Fax:
011 883 8815 Ref: D22414/Mr S Dewey
Email:
stan@dhlattorneys.co.za
helen@dhlattorneys.co.za
On
behalf of the Defendant: Adv Ernst Kromhout
Instructed
by:
VICTOR
& PARTNERS ATTORNEYS
Unit
10, 2 Floor Highcliffe Office Park
Cnr
Wilhelmina Ave & Christiaan De Wet Rd
Constantia
Kloof Roodepoort
Tel:
(011)831-0000
Email:
melissa@victorandpartners.co.za
REF:
MVDH/ef/MAT13010
c/o
ROXANNE BARNARD ATTORNEYS
17
th
Floor, Schreiner Chambers
94
Pritchard Street
JOHANNESBURG
[1]
Blaawberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
[2004] 1 All
SA 129
(SCA) at 133.
[2]
1927
CPD 27
at 29.
[3]
Erasmus
- Superior Court Practice D1 – 332 [Service 15, 2020]; Randa v
Radopile Projects CC 2012 (6) SA 128 (GSJ).
[4]
Swartz
v Van der Walt t/a Sentraten
1998 (1) SA 53
(W) at 56 I-J and 57G-J.
[5]
Robinson
v Randfontein Estates Gold Mining Company Ltd
1921 AD 168
at 243;
Erasmus (supra) D1-331.
[6]
Evans
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 836D.
[7]
1927
CPD 27
[8]
Trans-African
Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A) at 279C.
[9]
First
3D (Pty) Ltd v Coleman and Another (39217/18) [2021] ZAGPPHC 336 1
June 2021.