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2021
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[2021] ZANCHC 59
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Desert Oil (Pty) Ltd v Griekwaland Wes Korporatief BPK t/a Vaalrivier Dienstasie (1193/2020) [2021] ZANCHC 59 (5 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
1193/2020
Date
Heard:
22/10/2021
Date
Delivered:
05/11/2021
Reportable:
NO
Circulate
to Judges:
NO
Circulate
to Regional Magistrates:
NO
Circulate
to Magistrates:
NO
In
the matter between:
DESERT
OIL (PTY)
LTD
Plaintiff/Respondent
and
GRIEKWALAND
WES KORPORATIEF BPK
t/a
VAALRIVIER
DIENSTASIE
Defendant/Applicant
JUDGMENT
O'BRIEN
AJ
1.
This is an application in terms of Rule 28(4) to amend the
defendant's plea and counterclaim. I shall refer to the parties as
cited in the summons.
2.
The plaintiff is a supplier of fuel products. The defendant
buys
these products from the plaintiff and trades with it at Vaalrivier
Dienstasie, Douglas.
3.
On 22 July 2020, the plaintiff issued a summons against the
defendant. The plaintiff's claim is based on an alleged contractual
agreement.
4.
On 14 October 2020, the defendant filed its plea and counterclaim.
5.
On 2 November 2020, the plaintiff delivered its replication
to the
defendant's plea and plea to the defendant's counterclaim.
6.
On 8 December 2020, the defendant filed a notice to amend its
counterclaim and plea. The proposed amendment of its counterclaim
introduced a new claim, the second counterclaim, based on an
alleged
oral sales agreement concluded at Douglas during or about February
2021.
7.
The second counterclaim alleges Mr van der Berg and/or Mr M
du
Plessis and/or Mr V Viviers and/or Mr R Le Roux, all of whom were
duly authorised thereto, represented the defendant, and the
plaintiff
was represented by a person and/or persons of unknown identity.
8.
On 14 December 2020, the plaintiff delivered a notice of objection
to
the second counterclaim because it did not comply with Rule 18(6). It
did not state who concluded the alleged oral contract
on behalf of
the plaintiff. Furthermore, the failure to state who acted on behalf
of the plaintiff in the oral agreement is vague
and embarrassing in
that the plaintiff could not plead thereto.
9.
On 22 December 2020, the defendant withdrew its notice of intention
to amend its counterclaim and plea.
10.
On 23 February 2021, the defendant again delivered notices of
intention to amend
its plea and counterclaim. The proposed amendment
which led to this application reads:
"At 10. During or
about February 2012 and at Douglas, Northern Cape Province, the
plaintiff and the defendant tacitly entered
into an agreement."
11.
The contradiction is immediately apparent. Initially, the defendant
sought to
rely on an oral agreement but now seeks to rely on an
alleged tacit agreement concluded by conduct.
12.
On 8 March 2021, the plaintiff filed a notice of objection to the 23
February
2021 proposed amendment. It brought the applicationon
notice, and the Plaintiff's attorney filed an affidavit.
13.
The grounds of objection:
13.1
The lack of
bona tides
by the defendant;
13.2
Failing to comply with Rule 18(6);
13.3
The proposed amendment is vague and embarrassing.
Bona Fide
14.
A court dealing with an application for an amendment of a pleading
has broad
discretion and is only limited by considerations of
prejudice or injustice to an opponent.
15.
In
Moolman v Estate Moolman
1927 CPD 27 at 29:
"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 purposes of justice in the same position as they were when the
pleading which it is sought
to amend was filed."
16.
Ms Davis, on behalf of the plaintiff, submitted that an applicant
applying for
leave to amend must show that he is
bona
fide
and that the amendment raises a triable issue. She relied on
Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd
1967
(3) SA 632
(D) at 640 H
-
641 A. Trans-Drakensberg
was
approved by the Supreme Court of Appeal in
Ciba-Geigy
(Pty)
Ltd
v
Lushof
Farms
(Pty)
Ltd
en
'n
Ander
2002
(2)
SA
447
(SCA) at para 34.
17.
In
Trans-Drakensberg (supra),
the court made it plain that a
party who wishes to change or add to his pleadings must explain the
reason and show
prima facie
that he has something deserving of
consideration, a triable issue. A party cannot place on record an
issue for which he has no supporting
evidence, where evidence is
required save in exceptional circumstances.
18.
Mr Knoetze, acting for the defendant, relied on
Squid Packers
(Pty) Ltd v Robberg Trawlers (Pty) Ltd
1999 (1) SA 1153
(SECLD)
submitted that it is not a requirement of Rule 28(3) that a party
seeking an amendment must explain in order to be successful with
the
proposed amendment. The plaintiff submitted that the defendant could
not simply ignore the allegations in its affidavit.
19.
I do not read
Squid Packers
as a blanket ban that an affidavit
explaining the purpose of the amendment should not be filed. Nepgen J
specifically stated it
is only if an objection which complies with
sub-rule 3 is delivered that an application for leave to amend would
have to be lodged.
20.
It is difficult to understand the contradiction between the withdrawn
amendment
and the proposed amendment. It cannot be reconciled, for in
one instance, the defendant pleads an oral contract and later changes
that to a tacit contract. The two are mutually exclusive. The
reference to a tacit contract deviates from the proposed oral
contract.
In these circumstances, one would expect the defendant to
state the reasons for the turnabout that, it failed to do. By that, I
do not mean to be understood that an affidavit should always
accompany an objection in terms of Rule 28(3). It would defeat the
purpose of the rule. However, in this instance, the deviation being
material, I would have expected the defendant to explain the
change
of stance. As stated in Trans-Drakensberg, the defendant needs to
explain the reason for the change and show that it has
a triable
issue deserving of consideration. The reliance on
Squid Packers
is, therefore is misplaced.
Rule
18(6)
21.
A party relying on a contract is compelled to give information in
precise terms.
It shall state whether the contract is written or oral
and when, where, and by whom it was concluded, and if the contract is
written,
a true copy thereof or of the part relied on in the pleading
shall be annexed to the pleading.
22.
In
Khunou & Others v M Fihrer & Son (Pty) Ltd & Others
1982 (3) SA 353
(W) at 355 F -
356
A
it
was said:
"The proper
function of
a
court is to try disputes between litigants who
have real grievances
and so to see to it that justice
is done. The rules of civil procedure exist in order to enable courts
to perform this duty with
which, in tum, the orderly functioning, and
indeed the very existence, of society is inextricably interwoven.
The Rules of Court are in
a
sense merely
a
refinement of the general rules of civil procedure. They are
designed not only to allow litigants to come to grips as
expeditiously
and as inexpensively as possible with the real issues
between them, but also to ensure that the courts dispense justice
uniformly
and fairly, and that the true issues which I
have mentioned are clarified and tried in
a
just manner.
Of course, the Rules
of Court, like any set of rules, cannot in their very nature provide
for every procedural situation that arises.
They are not exhaustive
and moreover sometimes not appropriate to specific cases.
Accordingly, the Superior Courts retain an inherent
power exercisable
within certain limits to regulate their own procedure and adapt it,
and, if needs be, the Rules of the Court,
according to the
circumstances. This power is enshrined in s43 of the Supreme Court
Act 59 of 1959."
23.
The complaint by the plaintiff is that the reference to unknown
individuals
acting on behalf of the plaintiff in the proposed
amendment does not comply with Rule 18(6). It refrains from
mentioning the specific
individuals the defendant contracted with and
the specific conduct attributed to these unknown persons when the
agreements were
concluded.
24.
Mr Knoetze submitted that there is no need to specify the
specific individuals. He calls in aid
Shell South Africa v
Bezuidenhout & Others
1978 (3) SA 981
(NPD) at 983 E - 985 D
and
Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC &
Others
2002 (1) SA 822
SCA at paras [2] [3] and [4].
25.
Ms Davis referred to
Roberts Construction Ltd v Dominion
Earth-Works Ltd
1968 (3) SA 255
(A)
for the submission
that it is implicit in Rule 18(6) that when reliance is placed on a
tacit agreement, the parties need to be identified.
26.
Mr. Knoetze's primary submission was that the defendant relies on the
conduct
of individuals over a period, and as such, no need for
specificity is required.
27.
The
Shell
and
Golden Fried Chicken
cases do not assist
his argument. For in those cases, the parties who relied on a tacit
contract were clearly identified. In this
instance, the plaintiff's
contracting parties are referred to as unknown persons.
28.
In my judgment, the principle enunciated in
Roberts
Construction
holds true. I am in respectful
agreement with the Learned Judge where at p262 8-C he held:
"Another aspect
of the latter must now be mentioned. Rule 18(6) does not in terms
refer to the case where the contract relied
upon is implied. It
seems, however,
a
necessary corollary that
a
pleader
could hardly avoid disclosure of the fact that he is relying upon an
implied contract (My reading: tacit). Failure to state
whether
a
contract is written or oral would naturally lead to disclosure of
the reason, and describing when, where and by whom it was concluded
would in many instances entail the setting out of the conduct relied
upon."
29.
In this matter, it is incumbent on the defendant, relying on a tacit
agreement
to set out the specific conduct accorded to the specific
individuals. That would place the plaintiff in a position to plead
because
it will know who did what and when. Absent that, the
plaintiff would manifestly be prejudiced, which cannot be cured by a
cost
order. Also, the plaintiff would not be able to investigate the
claim. Stated differently, the plaintiff would be embarrassed.
30.
I hold that on this ground, the defendant fails.
Vague
and Embarrassing
31.
The defendant contended that the contractual relationship between the
parties
spread over several years. As such, there were many
communications between the parties. During these communications, the
parties
would have gained knowledge of the business transactions
which would place the plaintiff in a position to plead. However, it
was
not stated what that knowledge entails which would place the
plaintiff in a position to prepare properly for trial.
32.
Much was made about the plaintiff, also relying on a tacit agreement.
The short
answer to this is that the defendant is surely within its
rights to file an objection if so advised.
33.
It is odd that the defendant who allegedly deals with millions of
rands is not
in a position to identify the persons it contracted
with. Surely, there must be a bookkeeping system in place which would
identify
when orders were placed with the plaintiff and the persons
who would make good through delivery notes on those orders. It is
strange
that a business entity like the defendant would accept
petroleum products on contract but would not know the identity of the
persons
who arranged for those deliveries.
34.
In my judgment, the point is well taken that the proposed amended
plea to the
second counterclaim is vague and embarrassing.
Costs:
35.
Normally, a party seeking an indulgence must pay the costs. The
defendant argued
that the real reason for the objection to the
proposed amendment is the plaintiff wants to make money out of the
defendant because
the defendant wants to deal with a different entity
named Total.
36.
In reply regarding the costs, the defendant argued that the proposed
objection
by the plaintiff was frivolous.
37.
For the reasons stated, the plaintiff was fully entitled to object to
the proposed
amendment. The objection was certainly not frivolous.
38.
I make the following order:
38.1
The application for leave to amend the defendant's plea and
counterclaim
is refused with costs;
38.2
The defendant is given leave to amend its plea and counterclaim, if
so
advised, within 30 days of the date of this order.
S
C O'BRIEN
ACTING
JUDGE
On
behalf of the plaintiff
Adv
D Davis S.C.
Corbers
Attorneys
Cape
Town
On
behalf of the defendant
Adv
B Knoetze S.C.
Elliot
Maris Attorneys
Kimberley