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[2019] ZAGPPHC 195
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Tee Que Trading Services (Pty) Ltd v Nedbank Limited (66203/14) [2019] ZAGPPHC 195 (31 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: 66203/14
31/5/2019
In
the matter between:-
TEE
QUE TRADING SERVICES (PTY) LTD
Plaintiff/Applicant
and
NEDBANK
LIMITED
Defendant/Respondent
JUDGEMENT
MATEBESE
AJ
INTRODUCTION
[1]
The applicant, the plaintiff in the main action, applies for leave to
amend its amended
particulars of claim. The application is opposed by
the respondent, the defendant in the main action.
[2]
The parties hereto shall for convenience, henceforth be referred to
as the plaintiff
and the defendant, respectively.
[3]
From the documents it appears that:
3.1
On 26 October 2016, pursuant to the filing of plaintiff’s
amended particulars of claim
on 28 September 2016, the defendant
filed a notice in terms of rule 23 (1) of the Uniform rules of court.
The defendant contended
in the notice that the plaintiff’s
amended particulars of claim, on various grounds listed in the
notice, lacked the necessary
averments to sustain a cause of action
and are also vague and embarrassing.
3.2
On or about 6 June 2018, in an attempt to remedy the aforesaid, the
plaintiff delivered
a notice of intention to amend its particulars of
claim in terms of rule 28 (1) of the Uniform rules.
3.3
On 19 June 2018 the defendant delivered, in terms of rule 28 (3) a
notice of objection to
the plaintiff’s proposed amendment.
3.4
The plaintiff therefore had to bring the current application in terms
of rule 28 (4) of
the Uniform rules. As stated herein above plaintiff
seeks the leave of this court to amend its particulars of claim.
Plaintiff
also seeks and order of costs against the defendant only in
the event the latter opposes the application.
[4]
In what follows I deal first with the proposed amendment so as to put
it into its
proper perspective and show how, if granted, it is likely
to impact on the particulars of claim as they currently stand,
thereafter
outline the defendant’s grounds of objection and
later deal with the issues arising herein.
The
proposed amendment:
[5]
In its notice in terms of rule 28 (1) plaintiff proposes to amend its
particulars
of claim as follows;
5.1
By deleting paragraph 16.1 which provides:
“
The Defendant appointed the
plaintiff to perform problem resolution services, maintenance
services and disaster recovery services
to the Defendant;
(Clause 4.1, read with clause 2.62
and clause 15,16 and 17)”
and sub substituting the above
paragraph with a new paragraph 16.1 which reads:
“
16.1 The Defendant
appointed the Plaintiff to perform the services and provide the
deliverables to the Defendant, on
the terms and conditions contained
in the contract documents;
(Clause 4.1)”
5.2
By adding the following two paragraphs below 16.6 as paragraphs 16.7
and 16.8, respectively:
“
16.7 The
Plaintiff and the Defendant agreed that they shall continue to be
bound by the terms of the Non-Disclosure
Agreement (NDA);
(Clause 39)
16.8 NDA was
defined as Non-Disclosure Agreement concluded between the parties on
5 October 2011;
(Clause 2.43)”
I was informed during argument that
the above proposed amendments are not the subject of the defendant’s
objection. Accordingly,
I need not deal further with same. Suffice
only to mention that it will therefore follow, in terms of rule 28
(5) that the above
amendment may be effected and no leave is required
in respect thereof.
5.3
By numbering the paragraph below the sub-heading “The further
negotiations between
the Plaintiff and the Defendant “as
paragraph 22.
This proposed amendment is also not
contentious in my understanding and I need not deal with it any
further in this judgement. Its
fate is the same as those above.
5.4
By deleting the heading above paragraph 37 and replacing it with the
following:
“
THE DEFENDANT’S
OBLIGATIONS IN TERMS OF THE MASTER AGREEMENT READ WITH NDA,
ALTERNATIVELY THE DUTY OF CARE OWED BY THE DEFENDANT
TO THE
PLAINTIFF”
5.5
By inserting the words “
contractual
obligations and/or alternatively”
between the words “
following”
and “
legal”
in paragraph 37 so that the paragraph reads:
“
In the entirety of the set of
facts and circumstances set out above in paragraph 12-14, paragraphs
4-21 and paragraphs 24-28 above
the Defendant owed the following
“contractual
obligations and/or alternatively”
legal duty of care to the Plaintiff during the course of the
negotiations:
37.1 ….”
(The underlining is mine and is
merely intended to show the proposed addition to the paragraph. This
will apply to all the paragraphs
below where the plaintiff proposes
to insert or add certain words in a paragraph)
5.6
By inserting the words “
CONTRACTUAL OBLIGATIONS AND/OR”
in the heading above paragraph 38 so that the heading reads:
“
THE DEFENDANT’S BREACH OF
CONTRACTUAL OBLIGATIONS
AND/OR
DUTY OF CARE”
5.7
By inserting the words “
terms of the Master agreement read
with NDA, alternatively its”
between the words “the”
and “duty” in the first sentence above paragraph 38 so
that the sentence reads:
“
The Defendant breached the
t
erms of the Master
agreement read with the NDA, alternatively its
duty of care in that the Defendant:
38.1 ….”
5.8
By deleting the reference to paragraph 23.4 in paragraph 39.2 and
replace it with paragraphs
“
24 to 29 above”
so
that paragraph 39.2 reads:
“
The Defendant obtains an
advantage that it would not have been able to obtain, but for the
facts set out in paragraphs
24
to 29 above
;
5.9
By inserting the words “
terms of the Master agreement read
with
NDA, alternatively breach of its”
in the last
line of paragraph 39.3 between the words “the’ and
“legal” so that the paragraph reads:
“
The Defendant concludes the
further agreement at a purchase price less than what the Defendant
would not have been able to procure
the Foglight software and the
services in relation thereto at, but for the breach of the
terms
of the Master Agreement read with NDA, alternatively breach of its
legal duty of care”
5.10 By inserting
the words “
terms of the `Master agreement read with NDA,
alternatively breach of”
between the words “the”
and “legal” in the first line of paragraph 40 so that the
paragraph reads:
“
As a direct result of the
Defendant’s intentional conduct and the breach of the
terms
of the Master agreement read with NDA, alternatively breach of
legal duty of care by the Defendant, the Plaintiff lost the
opportunity to conclude the further agreement and thereby the
Plaintiff
suffered loss of profit in the sum of US$ 6 176 607 –
00, calculated as set out in paragraphs 41 to 47 hereinafter”
5.11 By inserting
the words “terms of the Master Agreement read with NDA,
alternatively breach of”
in the first line of paragraph 44 and
between the words “the” and “legal” so that
the paragraphs reads:
“
But for the Defendant’s
conduct and the Defendant’s breach of the
terms
of the Master Agreement read with NDA, alternatively breach of
legal duty of care that the Defendant owed to the Plaintiff, the
further agreement would have been concluded between Plaintiff
and the
Defendant at a contract price equivalent to US$ 14 753 214 – 00
calculated as set out in paragraph 41 above”
5.12 By inserting
the words ”
terms of the Master agreement read with NDA,
alternatively its”
in the first line of paragraph 48 and in
between the words “the” and “duty” so that
the paragraph reads:
“
As a direct result of the
Defendant’s intentional conduct and the breach of the
terms
of the Master agreement read with NDA, alternatively its
duty of care, the Plaintiff suffered loss of profit in the amount of
US$ 4 804 214 – 00, calculated as follows….”
The
Defendant’s objection.
[6]
in the main the defendant objects to the proposed amendment on the
grounds that:
6.1
in terms of the section 11(d) and 12(1) of the Prescription Act 68 of
1969 (“the
Prescription Act&rdquo
;) the period for the alleged
debt which the plaintiff seeks to claim in terms of the proposed
amendment is three years from the
date on which the debt became due;
6.2
regard being had to paragraph 30 of the present particulars of claim,
the alleged conduct
which the plaintiff relies on as constituting an
alleged breach by the defendant of its alleged contractual
obligations (i.e. the
calling of a private meeting with Quest to the
exclusion of the plaintiff, and the ensuing conclusion of an
agreement by the defendant
directly with Quest) occurred in September
2012;
6.3
regard being had to paragraph 47 of the present particulars of claim,
the plaintiff was
aware of such alleged breach by March 2013, having
regard thereto that this is the date at which the plaintiff alleges
it received
an ex gratia payment of US$ 1 million from Quest “
in
part compensation”
for the plaintiff’s alleged loss;
6.4
in the circumstances, the alleged debt which the plaintiff seeks to
claim in terms of the
proposed contractual claim which the plaintiff
seeks to introduce, became due by no later than March 2013;
6.5
the alleged debt sought to be claimed by the plaintiff in terms of
the proposed contractual
claim therefore became prescribed by March
2016;
6.6
the notice of amendment is dated 6 June 2018, and such process can no
longer serve as judicial
interruption of prescription by claiming
payment of the alleged debt which is sought to be claimed in terms of
the contractual
claim, as such alleged debt has been extinguished.
[7]
The defendant further argues that the plaintiff’s original
particulars of claim
contained a contractual claim but the
contractual claim contained in the original particulars of claim was
not prosecuted to final
judgement as required in
section 15
(1) and
15
(2) of the
Prescription Act. Therefore
, so the defendant contends,
the service of the original particulars of claim does not affect the
above position as regards the
debt being extinguished.
[8]
In short the defendant contends that the amendment seeks to introduce
a new debt and
that the debt sought to be introduced by the plaintiff
by way of the proposed amendment has since prescribed and that it is
accordingly
incompetent to allow the amendment. It further argues
that to the extent that the summons issued in 2014 interrupted
prescription
of the debt, as originally claimed, such interruption
lapsed by virtue of
section 15
(2) of the
Prescription Act as
the
action under the said summons was not prosecuted to final judgement
but was abandoned by the plaintiff.
The issues
[9]
The issues in this matter are:
(a)
whether the proposed amendment introduces a new debt. A negative
answer in this regard disposes
of this matter;
(b)
if the answer to the above is in the affirmative, whether the debt
introduced by the new
amendment has prescribed in terms of
section
11(d)
read with
section 12(1)
of the
Prescription Act;
(c
)
if it has, whether the prescription was interrupted;
(d)
if it was interrupted, whether the plaintiff abandoned the process
that interrupted prescription
resulting in the interruption of
prescription lapsing in terms of section 15(2) of the Prescription
Act; and
(e)
costs of the application.
Whether
the amendment introduces a new debt.
[10] In
determining this issue one has to look at the particulars of claim
sought to be amended and
compare them with the proposed amendment in
order to determine whether a new debt as envisaged in the
Prescription Act is
sought to be introduced by the proposed
amendment.
[11] The
Prescription Act does
not define what a debt is. However, the then
Appellate Division in
Escom
[1]
defined a debt for purposes of the
Prescription Act to
mean that
which is owed or due, anything (as money, goods or services) which
one person is under an obligation to pay or render
to another.
[12] The
above definition has since received approval by the Constitutional
Court in
Makate
[2]
and
Off-Beat Holiday
Club
.
[3]
[13]
With the above definition in mind one therefore must begin to compare
the particulars of claim
sought to be amended with the plaintiff’s
proposed amendment and determine whether the argument that a new debt
is sought
to be introduced can find support therefrom.
[14]
This involves a determination whether a new cause of action, which
means every fact that the
plaintiff must prove in order to succeed in
his claim and not every piece of evidence necessary to prove each
fact
[4]
,
which is different to the one already pleaded in the particulars
sought to be amended is contained in the proposed amendment.
[15]
Confronted with a question whether on a consideration of the
particulars sought to be amended
and the proposed amendment there
appears any new
facta
probanda
sought to be introduced by the proposed amendment, counsel for the
respondent was constrained to make a concession that there is
none.
In my view the concession was well made.
[16]
Looking at the substance of the particulars of claim sought to be
amended, it is clear that no
claim or debt sought to be recovered by
the plaintiff is introduced by the amendment. The debt remains the
same or substantially
the same.
[5]
[17] If
anything, the amendment is no more than a clarification of what may
appear or appears to be
unclear or a defect in the particulars of
claim.
[18] The
above finding therefore disposes of this matter. It is therefore
unnecessary to deal with
the rest of the issues identified herein
above save only for the issue of costs which I consider hereunder
Costs
[19] The
general rule in matters of this nature is that the party that seeks
an indulgence, like the
leave to amend i
n
casu
, is liable for the
costs.
[20]
However that is not an absolute rule in that where the granting of
the indulgence is opposed
and the opposition is found to be
unwarranted, frivolous or vexatious the opposing party may be held
liable for the costs.
[21] I
have indicated herein above that on a mere look at the particulars of
claim sought to be amended
compared with the proposed amendment it is
clear that no new factual allegations are sought to be included in
the particulars of
claim by the amendment sought.
[22] The
amendment simply seeks to add or insert certain words to certain
paragraphs, headings and
sentences in the particulars of claim.
[23] In
my view the objection by the defendant is overly technical and is not
based on reasonable
grounds.
[24] I
therefore find no basis why costs should not follow the result.
[25] In
the circumstances I make the following order:
25.1 The application
for leave to amend succeeds and the plaintiff is granted leave to
amend its particulars of
claim as proposed in the Notice dated 6 June
2018;
25.2 The defendant
shall pay the costs of the application.
Z.Z.
MATEBESE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
For
the plaintiff: Adv R.B.
Mphela
Instructed by Nicholas Ngwenya
Incorporated
PRETORIA
For
the defendant: Adv P.T. Rood SC (with Adv E. Kromhout)
Instructed by Cliffe Dekker Hofmeyr
Attorneys
SANDTON
[1]
Electricity Supply Commission v Stewarts and
Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) at 344F
[2]
Makate v Vodacom
2016 (4) SA 121
(CC) para.93
[3]
Off-Beat Holiday Club and Another v Sanbonani Holiday Spa
Shareblock Ltd and Others
2017 (5) SA 9
(CC) para.44
[4]
De Kock v Middelhoven
2018 (3) SA 180
para.23 and
the authorities referred to therein.
[5]
Embling and Another v Two Oceans Aquarium CC
2000
(3) SA 691
(C) at 698 C-F though in the context of the introduction
of a defendant by way of amendment; Rustenburg Platinum Mines
Limited
v Industrial Maintenance Painting Services CC
[2009] 1 All
SA 275
para.13