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[2008] ZASCA 108
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Rustenburg Platinum Mines Ltd. v Industrial Maintance Painting Services CC (448/07) [2008] ZASCA 108; [2009] 1 All SA 275 (SCA) (23 September 2008)
THE
SUPREME
COURT OF APPEAL
OF
SOUTH AFRICA
Case
No: 448/07
RUSTENBURG
PLATINUM MINES LIMITED
Appellant
and
INDUSTRIAL
MAINTENANCE PAINTING SERVICES CC
Respondent
Neutral
citation:
Rustenburg
Platinum Mines v Industrial Maintenance Painting Services
(448/2007)
[2008] ZASCA 108
(23 September 2008)
Coram
:
MPATI
P, CAMERON, LEWIS, JAFTA JJA
and
BORUCHOWITZ
AJA
Heard
:
15
AUGUST 2008
Delivered
:
23
SEPTEMBER 2008
Summar
y :
Prescription
– Extinctive prescription – meaning of ‘debt’
in
Prescription Act 68 of 1969
– ‘debt’ refers
generally to ‘claim’ and not ‘cause of action’
– Amendment to particulars
of claim to introduce new ‘cause
of action – does not necessarily introduce new ‘debt’.
___________________________________
__________________________________
ORDER
__________________________________
___________________________________
On
appeal from:
High
Court, Johannesburg (Willis J sitting as court of first instance).
1 The appeal is allowed
with costs.
2 The order of the court
a quo is set aside and replaced with the following:
‘
(a) The plaintiff
is granted leave to amend its particulars of claim in accordance with
its notice of amendment dated 5 June 2007.
(b) The defendant is
ordered to pay the costs of the application for leave to amend,
including the costs of the appearances on 17
July 2007.’
JUDGMENT
MPATI P (CAMERON, LEWIS,
JAFTA JJA and BORUCHOWITZ AJA concurring):
[1] This
appeal mainly concerns the question whether an amendment sought to be
effected to the appellant’s particulars of
claim would, if
granted, introduce a different debt to the one payment of which was
originally claimed. If so, says the respondent,
then the debt now
sought to be introduced or claimed has become prescribed. For
convenience, I shall refer to the parties as in
the court below.
[2] The
p
laintiff
sued the defendant in the Johannesburg High Court for payment of the
sum of R392 160, together with interest. It is common
cause between
the parties that during 2002 and in terms of an agreement/s entered
into between them the defendant undertook certain
work and supplied
certain materials in relation to such work for and on behalf of the
plaintiff. From time to time during this
period the defendant
submitted to the plaintiff tax invoices for payment to it of moneys
due for work allegedly performed and materials
supplied. The
plaintiff paid the amounts reflected on the invoices. It is alleged
in the particulars of claim that the plaintiff
effected the payments
believing them to be due, owing and payable to defendant. Subsequent
to making payment during December 2002
the plaintiff discovered, so
the particulars aver, that certain of the claims by the defendant
were not valid and that payments
made in settlement of them were not
due, owing and payable, because the defendant had not performed all
the work nor supplied all
the materials as reflected in the invoices.
The excess payments, which the plaintiff alleges were made in the
bona fide but mistaken
and reasonable belief that the defendant was
entitled to them, totalled R719 897.76 (excess amount).
[3] It
is further alleged in the particulars of claim that during June 2003
the defendant repaid the sum of R327 137.76 (the refund)
following
the plaintiff’s demand for payment of the excess amount. The
plaintiff consequently avers that the defendant has
been enriched at
its expense, the latter having failed or refused to pay the sum
claimed, which is the difference between the excess
amount and the
refund.
[4] In
its plea the defendant states that during the relevant period it
submitted to the plaintiff ‘tax invoices and
pro
forma
invoices in connection with work done and materials supplied or to be
supplied . . . in terms of the agreement or agreements between
the
parties’. The plea continues that ‘with full knowledge
that the
pro
forma
invoices rendered at the end of 2002 related to work to be done
during 2003, plaintiff made payment on this invoice and/or invoices’.
It is pleaded further that the defendant paid the refund of its own
volition. That payment of the excess amount was made by the
plaintiff to the defendant in respect of work that has not as yet
been done, and materials not yet supplied, is therefore common
cause.
[5] The
trial of the matter commenced before Willis J on 22 May 2007. After
three witnesses had testified on its behalf, the plaintiff
sought to
amend its particulars of claim by adding two alternatives to its
cause of action as pleaded, allegedly so as to accord
with the
evidence already tendered. The defendant objected to the proposed
amendment. The matter was accordingly postponed to
17 July 2007 to
enable the plaintiff to invoke the provisions of Rule 28 of the
Uniform Rules of Court. The plaintiff was ordered
to pay the costs
occasioned by the postponement.
[6] A
formal notice of application to amend the particulars of claim was
subsequently delivered by
the
plaintiff. The proposed amendment sought to add the following
averments to the pleaded cause of action:
‘
6 Alternatively
to paragraphs 3.2, 3.3, 3.4, 3.5, 4 and 5:
6.1 From
time to time during the period 2002, the Defendant performed certain
work and supplied certain materials and submitted
to the plaintiff
invoices in terms of which it recorded monies that were payable to it
in respect of work performed by it and material
supplied by it as
well as work and material to be performed and supplied in the future,
all of which were in terms of the aforesaid
agreement/agreements,
alternatively accepted by the Plaintiff.
6.2 Having
received the said invoices:
6.2.1 The
Plaintiff paid to the Defendant the amounts reflected as payable in
terms thereof;
6.2.2 The
parties, represented by their duly authorised representatives, orally
agreed at Plaintiff’s premises during or about
January/February
2003 that the Defendant would not attend to certain of the work and
supply certain materials which were to be
performed and supplied in
the future to the value of R719 897,76 plus VAT, it being implied,
alternatively tacitly agreed to by
the parties that the Defendant
would repay to the Plaintiff the amount paid by the Plaintiff in
respect of work and material to
be done and supplied by the Defendant
in the future and which was not done and supplied in the aforesaid
sum of R719 876,76 plus
VAT;
6.2.3 Alternatively,
the Plaintiff instructed the Defendant not to attend to certain of
the work and the supply of material which
were to be performed and
supplied in the future to the value of R719 897,76 plus VAT, which
instruction the Defendant accepted
and agreed to, it accordingly and
by virtue thereof being implied, alternatively tacitly agreed to by
the parties that the Defendant
would repay to the Plaintiff the
amount paid by the Plaintiff in respect of work and material to be
done and supplied by the Defendant
in the future and which was not
done and supplied in the aforesaid sum of R719 876,76 plus VAT;
6.2.4 The
Plaintiff accordingly paid to the Defendant the sum of R719 876,76
plus VAT in excess of the amount to which the Defendant
was entitled,
having regard to the work and material actually done and supplied by
it to the Plaintiff.
6.3 Subsequent
to the above and during or about June 2003, the Defendant repaid to
the Plaintiff the sum of R327 737,36, however
failed, refused and/or
neglected to pay to the Plaintiff the balance of R392 160,00 plus
VAT, totalling the sum of R447 062,40.’
[7
] The
defendant objected to the proposed amendment on the following
grounds:
‘
1. The
amendment is sought late without any explanation.
2. The
amendment will prejudice the Defendant as:
2.1 the
Plaintiff has already led the evidence of three witnesses who were
cross-examined in a limited fashion based on the pleadings
as they
stand;
2.2 evidence
and witnesses necessary to deal with the proposed amendment are no
longer available to the defendant;
2.3 the
evidence of the Plaintiff’s witnesses contradicts the amendment
sought in that the Plaintiff’s witnesses admit
that services
were rendered and materials were supplied in or about January and
February 2003. The Plaintiff’s amendment
asserts that no
services were rendered and no materials were supplied in or about
January and February 2003.
3. The
Plaintiff seeks to introduce in the alternative a claim based on a
contractual debt which is a different debt to the debt
claimed in its
particulars of claim and which different debt has prescribed.
4. Paragraphs
6.2.2 and 6.2.3 of the proposed amendment do not comply with Rule
18(6) of the Uniform Rules of Court.
5. The
proposed pleading is vague and embarrassing in that it does not state
when, where and by whom the agreement was reached as
pleaded in the
proposed paragraph 6.2.2 or when, where and by whom the instruction
was given and accepted as pleaded in the proposed
paragraph 6.2.3.
6. The
embarrassment is compounded in the light of the evidence already
led.’
[8] Willis
J disposed of the matter by considering whether, by the proposed
amendment,
the plaintiff sought to introduce a different debt from the one
originally claimed. He held that the proposed amendment introduces
an obligation which arises separately from the claim originally
pleaded. That obligation, he said, is an agreement allegedly entered
into during January/February 2003, it being common cause that the
relevant period for prescription has lapsed. Willis J upheld
the
defendant’s objection and refused the application to amend the
particulars of claim with costs, but subsequently granted
leave to
appeal to this court.
[9] In
supporting the judgment of the court a quo counsel for the defendant
submitted that the plaintiff’s claim, as originally
formulated,
is a classic
condictio
founded on the absence of a contractual obligation (
condictio
indebiti
).
The proposed amendment, counsel argued, seeks, however, to introduce
a claim based on a contractual obligation to repay the
excess amount
under certain circumstances: that is, it is aimed at enforcing a
right based on an agreement, a proposition which
is irreconcilable
with the original claim. The rights and obligations which the
plaintiff seeks to enforce in the original claim
based on the
condictio
indebiti
and the rights and obligations sought to be enforced in the
alternative claim (as per the proposed amendment) are not the same.
The proposed alternative claim, counsel contented, is not a ‘fleshing
out’ of the main claim but a different claim
seeking to enforce
a different debt, which has become prescribed.
[10]
Section
10(1)
of the
Prescription Act 68 of 1969
provides that ‘a debt
shall be extinguished by prescription after the lapse of the period
which in terms of the relevant
law applies in respect of the
prescription of such debt’, in this case after the lapse of
three years from the date upon
which the debt became due (11(d)). In
terms of
s 15(1)
the running of prescription ‘shall . . . be
interrupted by the service on the debtor of any process whereby the
creditor
claims payment of the debt’. So, once again the
meaning of the word ‘debt’ in the
Prescription Act comes
under the spotlight.
[11] In
Drennan
Maud and Partners v Pennington Town Board
,
1
Harms JA, having referred to the decisions of this court in
Sentrachem
Ltd v Prinsloo
2
and
Standard
Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (in
liquidation)
,
3
reminded that the word ‘debt’ does not refer to the
‘cause of action’, but more generally to the ‘claim’.
And in
Evins
v Shield Insurance Co Ltd
4
Trollip
JA, in a minority judgment, said that ‘cause of action’
is ordinarily used ‘to describe the factual basis,
the set of
material facts, that begets the plaintiff’s right of action
and, complementarily, the defendant’s “debt”,
the
word used in the
Prescription Act.’
5
>
(See also the majority judgment of Corbett JA at 838D-H, and
CGU
Insurance Ltd v Rumdel Construction (Pty) Ltd
.
6
)
It should, therefore, by now be fairly clear that when the
Prescription Act speaks
of a ‘debt’ it refers more
generally to a ‘claim’ and not the ‘cause of
action’.
[12] In
this matter the defendant objects to the proposed amendment on the
basis that the claim or debt sought to be introduced
by the plaintiff
has become prescribed. Counsel for the plaintiff contended, in this
court, that what the plaintiff seeks to recover
is money admittedly
paid by it to the defendant for work and materials that has not as
yet been done or supplied at the time of
the payment. Thus, the debt
sought to be recovered, whether by way of the particulars of claim as
originally framed or in accordance
with the alternatives as set out
in the proposed amendment, is the same.
[13] An
amendment is no doubt permissible, provided that the debt which is
claimed by way of the amendment is the same or substantially
the same
debt as originally claimed.
7
In order to decide the defendant’s objection based on
prescription in this matter, that is, whether the ‘debt’
claimed in the proposed amendment has become prescribed, it is
necessary to identify the ‘debt’ or, as Harms JA put
it
in
Drennan
,
8
one
must ascertain ‘what the “claim” was in the broad
sense of the meaning of that word’. As has been mentioned
above, it is common cause between the parties that when the excess
amount was paid to defendant, there was no
causa
for the payment – no work had as yet been done and no materials
supplied. It is that excess amount (the ‘debt’)
as
embraced in the original cause of action, which plaintiff seeks to
recover. It is true that the proposed amendment sets out
a cause of
action which is different from that contained in the particulars of
claim. The proposed amendment seeks to introduce,
as alternative
causes of action, contractual obligations arising from agreements
between the parties in terms of which the defendant
tacitly agreed to
repay the excess amount to plaintiff. The question, however, is
whether the proposed amendment introduces a
new ‘claim’
or ‘debt’.
[14]
In
Evins
v Shield Insurance
9
Corbett
JA said the following:
‘
Where
the plaintiff seeks by way of amendment to augment his claim for
damages, he will be precluded from doing so by prescription
if the
n
ew
claim is based upon a new cause of action and the relevant
prescriptive period has run, but not if it was part and parcel of
the
original cause of action and merely represents a fresh quantification
of the original claim or the addition of a further item
of damages.’
10
Dealing with the
difference between the concepts ‘cause of action’
(skuldoorsaak) and ‘right of action’
(vorderingsreg) in
the same case, Trollip JA said:
‘
.
. . I am not sure that it necessarily follows that, because one
factual basis differs from another in some respect or respects,
separate or different rights of action arise; on the contrary, both
cases may nevertheless beget only one right of action or debt,
eg one
for the plaintiff’s entire patrimonial loss. The cases of
Green
v Coetzer
1958 (2) SA 697
(W) and
Schnellen
v Rondalia Assurance Corporation of SA Ltd
1969 (1) (SA) 517 (W) . . . are apposite illustrations of that.’
11
These
two statements (by Corbett and Trollip JJA) were held to be
consonant with each other (
Sentrachem
Ltd v Prinsloo
12
).
According to Corbett JA, if an amendment introduces a new ‘claim’
or ‘debt’ which is based on a new
cause of action, such
amendment would be susceptible to a special plea of prescription if
the prescriptive period has run. Put
differently, if the new cause
of action, ie the material facts which must be proved for a plaintiff
to succeed, sought to be introduced
by the amendment, gives rise to a
different ‘right of action’ or ‘debt’ to the
one originally claimed,
that plaintiff will be precluded from
effecting the amendment if the relevant prescriptive period has run.
But, as I understand
the extract from the judgment of Trollip JA, it
does not follow that a new cause of action sought to be introduced by
an amendment
will necessarily give rise to a new ‘claim’
or ‘debt’.
[15] In
CGU
Insurance
13
the plaintiff issued summons against the defendant for payment of two
amounts for loss alleged to have been caused by storm damage
on two
separate occasions. The amounts were alleged to have been due and
payable in terms of a single contract of insurance identified
in and
annexed to the particulars of claim. Approximately five months later
the plaintiff sought to amend its particulars of claim,
by alleging
that a different contract to the one annexed to the particulars of
claim was the basis of liability for one of the
two storm damage
occurrences. The defendant objected to the amendment on the basis
that it sought to introduce a new contract
which had not been alleged
before and thus introduced ‘a new cause of action or right of
action’ based upon the newly
alleged contract. This new ‘cause
of action or right of action’ arose more than three years
before the amendment was
sought and therefore introduced a prescribed
claim.
[16] Jones
AJA, in considering the objection raised, said it was necessary, when
deciding whether a summons interrupts prescription,
‘to compare
the allegations and relief claimed in the summons with the
allegations and the relief claimed in the amendment
to see if the
debt is substantially the same’.
14
In
rejecting counsel’s argument in support of the objection he
said:
‘
I
accept that the amendment introduces a new insurance contract as the
basis for a claim for the loss which occurred in March 1996.
But
an
objective comparison between the original particulars of claim and
the particulars of claim as amended leaves me in no doubt
that
although part of the cause of action is now a different contract, the
debt is the same debt in the broad sense of the meaning
of that word.
The original pleadings convey, in that broad sense, that the debt was
payable by reason of a contractual undertaking
to indemnify the
plaintiff for the loss which occurred in March 1996, a loss which is
fully particularised and of which notice
was allegedly given after
the occurrence as required by the policy. That is also how it is
described in the amendment. I can
find no grounds for concluding in
this case that a change in the contract relied upon means that a
different debt was claimed.’
15
[17] Counsel
for
the defendant argued, however, that
CGU
Insurance
was wrongly decided and relied for this proposition on another
decision of this court in
Neon
and Cold Cathode Illuminations (Pty) Ltd v Ephron
.
16
The respondent in that case, a director of a company which had a
lease agreement with the appellant, had stood surety for the
payment
of rent owing to the appellant by the company. When arrear rental
became owing the appellant sued the respondent for its
recovery. The
respondent was, however, sued not as surety but as lessee. The claim
was dismissed on the ground that the respondent
had been incorrectly
sued on the lease as the lessee. Thereafter, approximately four
years after the arrear rental had become
due, the appellant again
sued the respondent, this time as surety and co-principal debtor.
The respondent’s defence was
that the claim had become
prescribed. In upholding that defence this court reasoned that the
appellant in
Neon
and Cold Cathode
‘had two separate different rights for payment of the [arrear
rental] each of which it could enforce by action: the one against
respondent as surety and co-principal debtor’. The court said
the following:
‘
In
the previous action appellant chose to sue respondent on the lease as
the lessee. The two different rights were therefore completely
confused. The cause of action as pleaded was not merely defective,
it was non-existent, and consequently the process was completely
devoid of legal effect
.
. . . That is why the previous action was correctly dismissed.’
17
Trollip
JA suggested, however, that the previous action could possibly have
been amended ‘to substitute a cause of action
against
respondent based on the contract of suretyship, for the Court has
wide powers to amend pleadings’.
18
[18] To
my mind, Trollip JA could have made this comment about a possible
amendment only because, although the cause of action would
be
different, viz liability being based on the contract of suretyship,
the ‘claim’ or ‘debt’ or ‘right
of
action’ would still have been the same: arrear rental which had
become due and payable. The significant distinction between
Neon
and Cold Cathode
,
on the one hand, and
CGU
Insurance
and this case on the other, is that the plaintiff in
Neon
and Cold Cathode
had not sought to amend the claim. The claim was dismissed. A new
action was instituted against the defendant as surety and
co-principal debtor. As Trollip JA indicated, had the plaintiff
attempted to amend its first claim against the defendant as lessee,
so as to claim against the defendant as surety, the amendment might
have been allowed. I am accordingly not persuaded that the
decision in
CGU
Insurance
is in conflict with that in
Neon
and Cold Cathode
,
nor that it was wrongly decided.
[19] At
the risk of repetition, in
CGU
Insurance
Jones AJA said that in deciding whether a summons interrupts
prescription, it is necessary to compare the allegations and relief
claimed in the summons with the allegations and the relief claimed in
the amendment to see if the debt is substantially the same
(see para
15 above).
19
When this test is applied to the facts of the present matter, the
result seems to me to be that the plaintiff seeks throughout
to
recover the same debt. The relief claimed originally is payment of
the sum of R392 160, being the balance of the excess amount,
the
defendant having repaid part of it. The relief claimed in the
amendment sought to be effected is for payment of the sum of
R392 160
plus VAT,
20
the capital amount being the balance of the excess amount after the
defendant had repaid part of it. It is so, as I have mentioned
above, that the allegations or ‘cause of action’ upon
which the relief claimed is based in the amendment differs from
the
allegations or ‘cause of action’ set out in the
particulars of claim, but the relief claimed, ie the ‘debt’
is, in my view, the same. It follows that Willis J erred in
upholding the defendant’s objection, based on prescription,
to
the proposed amendment.
[20] The
defendant raised further objections to the proposed amendment. The
first is that the amendment was sought late without
any explanation.
In the affidavit in support of the proposed amendment it is stated
that the plaintiff realised that it was necessary
to amend its
particulars of claim as proposed only during the course of the
evidence of one of its witnesses. That witness, Mr
Bart Pieterse,
testified on 22 May 2007. The notice of amendment was handed to
defendant’s legal representatives on the
morning of 24 May
2007. I agree with the contention on behalf of the plaintiff that
there was no real delay between its realisation
of the necessity to
amend and the attempt to amend on 24 May 2007, to which objection was
raised. In my view, the submission that
the explanation should have
related to plaintiff’s failure to amend after the close of
pleadings has no merit.
[21] The
second objection is that the amendment will prejudice the defendant
in that (a) the cross-examination of the three witnesses
whose
evidence has already been led was in a limited fashion based on the
pleadings as they stand; (b) evidence and witnesses necessary
to deal
with the proposed amendment are no longer available to defendant, and
(c) the evidence of the plaintiff’s witnesses
contradicts the
amendment sought. As to (a) I can think of no reason why the
witnesses who have already testified cannot be recalled
for further
cross-examination, if necessary. The defendant’s contention
that the ‘contamination of witnesses discussing
their evidence’
after cross-examination ‘cannot be gauged or undone’ and
that their recalling cannot undo the
prejudice, can hardly be a basis
for refusing the amendment, in my view. The possibility of witnesses
discussing their evidence
even before they testify is ever present.
As to (b), the defendant avers that the best evidence available to it
is that of Mr
Jaco Schnettler, who is no longer within the country.
The defendant offers no detail in respect of the nature of the
evidence
which Mr Schnettler would have given if he were present, nor
does it give details as to why Mr Schnettler cannot travel to South
Africa to attend court. The averment accordingly requires no further
attention. The defendant also contends that certain internal
memoranda of the plaintiff relating to the agreements (as alleged in
paragraphs 6.2.2 and 6.2.3 of the proposed amendment) have
not been
discovered. I can again find no reason why, if such documents exist,
the defendant cannot invoke the provisions of
Rule 35(3)
to obtain
discovery of them. As to (c), it suffices to say that the
plaintiff’s case has not been closed. Further witnesses
may
still be called. I am also not convinced that the evidence of the
plaintiff’s witnesses led thus far contradicts the
amendment
sought.
[22] The
third objection raised is that the proposed amendment does not comply
with the provisions of
Rule 18(6)
21
of the Rules of Court in that it does not state in paragraph 6.2.2
when, where and by whom the agreement was concluded, nor does
it
state in paragraph 6.2.3 when, where and by whom the instruction was
given and accepted on behalf of the plaintiff and the defendant
respectively. There is no substance in this objection. Paragraph
6.2.2 of the amendment states that the parties were represented
by
their duly authorised representatives, who orally agreed at the
plaintiff’s premises during or about January/February
2003.
These allegations must also be read into paragraph 6.2.3. It is for
the defendant, if it so wishes, to request further
particularity for
purposes of the trial.
[23] The
fourth objection is that the proposed amendment is vague and
embarrassing in that it does not state when, where and by
whom the
agreement was reached as pleaded in the proposed paragraph 6.2.2 or
when, where and by whom the instruction was given
and accepted as
pleaded in the proposed paragraph 6.2.3. I have already dealt with
these issues in the preceding paragraph (para
22). The objection has
no substance. It was further submitted on behalf of the defendant
that the plaintiff’s failure to
comply with
Rule 18(6)
compounds the embarrassment which the defendant would suffer in
pleading thereto in the light of the evidence already led in relation
to the happenings in early 2003. I have already dealt with these
issues and they require no further consideration.
[24] In the result the
following order is made:
1 The appeal is allowed
with costs.
2 The order of the court
a quo is set aside and replaced with the following:
‘
(a) The plaintiff
is granted leave to amend its particulars of claim in accordance with
its notice of amendment dated 5 June 2007.
(b) The defendant is
ordered to pay the costs of the application for leave to amend,
including the costs of the appearances on 17
July 2007.’
MPATI P
A
ppearances:
For
appellant : M Basslian
Instructed
by
Leppan
Beech Incorporated Wendywood
McIntyre
& Van der Post Bloemfontein
For
respondent: E Theron
A
van Nieuwenhuizen
Instructed
by
Allan Levin
& Associates Johannesburg
Lovius Bloch
Bloemfontein
1
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 212F-G.
2
1997 (2) SA 1
(A) at 15B-16D.
3
[1997] ZASCA 94
;
1998 (1) SA 811
(SAC) at 825B-827F.
4
1980 (2) SA 814
(A).
5
At 825F-G.
6
2004 (2) SA 622
(SCA) para 6.
7
CGU Insurance
,
above footnote 6 para 5;
Associated
Paint v Chemical Industries (Pty) Ltd t/a Albestra Paint and
Lacquers v Smith
2000 (2)
SA 789
(SCA) at 794C-G and
Sentrachem
Ltd v Prinsloo
, above
footnote 2 at 15H-16D.
8
Above footnote 1 at 212I-G.
9
Above footnote 4.
10
At 836D-E.
11
At 825H.
12
Above footnote 2 at p 15D-H.
13
Above footnote 6.
14
Ibid, para 7.
15
Above para 8.
16
1978 (1) SA 463
(A).
17
At 473G-H.
18
Ibid
19
See also
Sentrachem L td v
Prinsloo
above footnote 2
at p 15J-16D.
20
The proposed amendment also seeks to amend prayer 1 by inserting the
words ‘plus VAT totalling R447 062.40’ after
‘R392
160.00’.
21
The subrule reads: ‘Any party who in his pleading relies upon
a contract 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.’