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[2019] ZAGPPHC 230
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Bath v Van Heerden & Brummer Inc (4926/2017) [2019] ZAGPPHC 230 (25 June 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:
YES/
NO
CASE NO: 4926/2017
25/6/2019
In the matter between
HARRY MARK DEON BATH
APPLICANT
AND
VAN
HEERDEN & BRUMMER INC
RESPONDENT
JUDGMENT
THOMPSON,
AJ
[1]
The Plaintiff (the Respondent in this application for amendment) was
formerly involved in
divorce litigation during which the ante-nuptial
contract (“the ANC”) regulating his marital regime was
declared void
for vagueness.
[1]
The Plaintiff has now instituted action against the First and Second
Defendants (the Applicants in the application for amendment)
for
damages arising out of an alleged breach of mandate and/or
professional negligence.
[2]
As part of the Defendants’ defence to the Plaintiff’s
claim, the Defendants
raised a special plea of prescription. In
this regard the Defendants have pleaded certain
facta probanda
relating to consultations that took place between the Plaintiff and
his legal team on various dates. The Plaintiff took the
view
that the pleaded averments will lead to the introduction of
privileged communications as evidence. Despite taking such
view, the Plaintiff did not seek to have the allegations struck out
on any basis. Rather, the Plaintiff replicated to the
special
plea by stating “
the contents thereof are privileged as
being communications between the Plaintiff and his legal
advisors/team
”. In doing so, the Plaintiff created,
in my view, a triable issue on the unamended pleadings on whether
communications
the Defendant seeks to rely on is privileged or not.
[3]
The Defendants have subsequently sought to amend their special plea
of prescription by “
deletion thereof and by substituting
same with the special plea that will read as set out
” in
the annexure to the Rule 28 notice. The proposed amended
special plea is substantially the same as the existing
special plea,
save for the introduction of additional averments relating to 26 July
2012, 6 August 2012, 3 to 22 September 2012,
23 September 2012 and 11
April 2013. Each of these averments relate to alleged
communications between the Plaintiff and his
legal team.
[4]
The Plaintiff has objected to such proposed amendment on the basis
that the plea of prescription
has been separated from all other
issues in terms of Rule 33(4) and the Defendants are seeking to
introduce evidence that “
is privileged as being
communications between the Plaintiff, then the client of the First
Defendant and the First Defendant representing
the Plaintiff in his
divorce action and counsel that represented the Plaintiff in the
divorce action and the Plaintiff does not
waive such privilege and
according such privilege remains.
” During the course
of argument the objection was refined to i. the proposed amendment is
premature and ii. the evidence
that is introduced by the amendment is
privileged, resulting in it being irrelevant and therefore
inadmissible.
[5]
As a result of the objection the Defendants have launched an
application to have the amendment
authorised, which application is
opposed by the Plaintiff.
[6]
It is trite law that an amendment will always be allowed unless it is
made
mala fide
or it
would cause an injustice that cannot be compensated for by way of an
order for costs,
[2]
in order to ensure that there is a proper ventilation of the dispute
between the parties.
[3]
This is the
modern
tendency pertaining to amendments, which
modern
tendency was expressed some 84 years ago.
[7]
It was argued on behalf of the Plaintiff that the amendment is
premature in light of the
objection on the pleadings regarding the
issue of privilege. It was contended that the amendment should
be postponed to the
hearing of the trial and moved once the trial
judge has made a ruling on whether the evidence objected to is
admissible.
[8]
In my view this argument has two fundamental flaws. The first
flaw arises as a matter
of law. It is trite law that an
amendment must be timeously effected and, if objected to, the
application to affect the amendment
must be timeously made.
[4]
If the seeking of the amendment is to stand over to trial, then the
issues sought to be raised by way of the amendment is
not properly
contained in the pleadings and there is no need to plead thereto,
make discovery thereto and there is no right to
request further
particulars in relation thereto. In addition, the trial judge
will only be called upon to determine the admissibility
of evidence
that is relevant to that which is contained on the pleadings.
Even if the trail judge is to rule that certain
evidence emanating
from the consultations are admissible, it does not follow that all
evidence emanating from the consultations
will be admissible.
It does not, in my view, automatically follow that a ruling on
admissibility on certain evidence emanating
from the consultations
will have the effect of rendering evidence pertaining to the
consultations now sought to be introduced as
admissible. The
line of argument proferred by the Plaintiff has the effect, in my
view, of potentially creating a situation
where the trial may not be
ripe for hearing if the amendment is only sought at the trial and
granted.
[9]
The second flaw in the argument that the amendment should only be
moved at the trial lies
within the Plaintiff’s own approach
relating to the prescription point. Although the Plaintiff
objects to the introduction
of certain evidence in his replication on
the basis of privilege, the Plaintiff indicated during argument that
he has proposed
a stated case to the Defendant on the prescription
point wherein the pleaded averments relating to the consultations and
the contents
thereof, as pleaded, are admitted. As the proposed
stated case statement is not by agreement as required in terms of
Rule
33(1), I enquired from Mr Smith appearing for the Plaintiff what
the status of seeming admissions in the stated case document is.
Mr Smith confirmed that the pleaded averments relating to the
consultations and the contents thereof are, for the purposes of the
separated prescription triable issue, admitted.
[10]
To borrow form the law of contract, the Plaintiff seems to be
approbating and reprobating on the privilege
point in so far the
prescriptive issue is concerned. He is impermissibly blowing
both hot and cold. This is so as,
for the trial on the
prescription point, the Plaintiff is not proceedings with the
privilege objection but for the purposes of
objecting to the proposed
amendment pertaining to the prescription point the Plaintiff is
relying on the privilege objection.
[11]
Even if I am wrong in my assessment of the submissions on behalf of
the Plaintiff, it matters not.
In this matter the Defendants
are not seeking to raise a new special plea. They are merely
seeking to introduce further instances
in the already pleaded
timeline of events in substantiation of the existing special plea.
According to the Defendants a consultation
was only had with an
important witness, who is a retired attorney, after the close of
pleadings. It is the Defendants submission
that all they are
seeking to do is to facilitate the proper ventilation of disputes
between the parties by making the Plaintiff
aware of all instances of
consultations and discussions they intend to rely on in relation to
the issue of prescription.
[12]
The mere fact that the Defendants have raised the issue of
consultations and discussions on the pleadings
does not mean that the
evidence in relation to such pleaded issues will be admissible at the
trial in due course. This remains
an issue for the trial court
to determine. The Plaintiff stands to suffer no prejudice or
injustice as the Plaintiff’s
position would be the same as it
was at the time that the pleadings stood at the time that the
proposed amendment was filed as
the Plaintiff can merely extend his
already pleaded averment in his replication to the new averments
introduced by way of the amendment.
[13]
The Plaintiff, in a final volley, sought to convince me that by
allowing the amendment I will be prescribing
to the trial court that
the evidence sought to be introduced by way of the amendment is
admissible. This submission, in my
view, is misguided.
Averments in pleadings do not constitute evidence. It is still
incumbent on the Defendant to lead
the evidence in support of the
pleaded averments and it is only, at that juncture, that the trial
court would need to make a ruling
on the admissibility of such
evidence.
[14]
For greater clarity and for the avoidance of any doubt, in making the
order that I intend to make, I express
no view, opinion or judgment,
directly or indirectly, regarding the privilege issue raised.
Whether the communications to
be relied upon is privileged and/or
admissible as evidence is a matter for the trial court to decide upon
a proper ventilation
of the issues and evaluation thereof.
[15]
As the proposed amendment, in my view:
i.
Facilitates
in making the Plaintiff aware of the true extent of the disputes
between the parties and thereby will ensure a proper
ventilation of
such disputes;
ii.
Allows
for the Plaintiff to still object to the introduction of the evidence
relevant to the pleaded averments at the trial;
iii.
Does
not change the nature and scope of the special plea; and
iv.
Leaves
the Plaintiff no worse off than he was before;
[5]
I can see no reason to refuse the proposed amendment.
[15]
This leave the issue of costs. Rule 28(9) provides that the
party who gives notice of an amendment shall
be liable for the costs
thereby occasioned to the other party. I may depart from this
general principle in the exercise of
my unfettered discretion on the
issue of costs. The Plaintiff has not alleged that the proposed
amendment is
mala fide
.
The Defendant has also not sought to introduce issues that are
unrelated to the issue at hand, in other words sought to
introduce
irrelevant pleaded averments. It is the Plaintiff who has
averred that the evidence that will result from the pleaded
averments
is irrelevant. This matter of relevance of the evidence is for
the trial court to determine and not for me.
In any event, the
Plaintiff would have been in no worse position on the pleadings if
the proposed amendment had been effected without
opposition thereto.
The objection to the proposed amendment and the
opposition of the application to effect the
amendment was, in my
view, unreasonable. In my view there is no reason why the costs
should not follow the result in this instance.
[16]
In the premises I make the following order:
1.
The
Defendant’s amendment dated 24 May 2018 is granted;
2.
The
Plaintiff is to pay the costs occasioned by the objection to the
amendment, including the costs of the application to effect
the
amendment,
C E THOMPSON
ACTING JUDGE OF THE HIGH
COURT
COUNSEL FOR
APPLICANT
: ADV G F HEYNS
APPLICANT’S
ATTORNEYS
:KRAJEVICH JANSE VAN VUUREN INC
COUNSEL FOR RESPONDENT
: D A SMITH SC
RESPONDENT ‘S
ATTORNEYS
:VDT ATTORNEYS INC
DATE OF
HEARING
: 19 June 2019
JUDGMENT DELIVERED
ON
: 25 June 2019
[1]
B v B
(952/12)
[2014] ZASCA 14
(24 March 2014)
[2]
Moolman v Estate Moolman
1927 CPD 27
at 29y
[3]
Rosenberg v Bitcom
1935 WLD 115
at 117
[4]
Zarug v Parvathie NO
1962 (3) SA 872
(D) at 876C
[5]
Magnum Simplex International (Pty) Ltd v
MEC Provincial Treasury, Provincial Government of Limpopo
(556/17)
[2018] ZASCA 78
(31 May 2018)