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[2018] ZAFSHC 160
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Lesole Agencies CC v Eskom (2555/2016) [2018] ZAFSHC 160 (16 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2555/2016
In
the matter between:
LESOLE
AGENCIES
CC
Plaintiff
And
ESKOM
Defendant
HEARD
ON:
24 AUGUST 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED ON:
16 OCTOBER
2018
[1]
This is an opposed application for leave to amend the particulars of
claim. The applicant, Lesole Agencies CC, is a close
corporation duly registered and incorporated in terms of the laws of
the Republic based in Riebeckstad, Welkom. The respondent,
Eskom, is a parastatal company with limited having its with
registered office at Megawatt Park, Sandton.
[2]
This matter serves before me pursuance to an order granted by my
brother Mhlambi J upholding the exception in a well thought
judgment
delivered on 28 September 2017. In that judgment the plaintiff
(applicant) was granted an opportunity to remove
the cause of
complaint within 15 (fifteen) days from the aforementioned date.
[3]
The proposed amendment of the particulars of claim is couched in the
following terms”-
“
1.
By deleting the whole
of paragraph 7 and substituting it by the following:
“
7.
Thus, and on or about
June 2014 and at Bloemfontein, the parties concluded a written
agreement (subject to what the Plaintiff pleads
in para 9 of this
Particulars of Claim). Meschack Lesole duly represented the
Plaintiff and a duly authorised representative
acted for the
Defendant. Alternatively, and in the event of the court for any
reason finding that the party had not concluded
a written agreement,
then and in that case the Plaintiff pleads that the parties had
concluded an oral agreement on the terms as
set out in annexure “A”
mutatis mutandis, most notably the parties had then not agreed to any
non-variation clause
as set out in the fourth unnumbered paragraph on
page 3 of Part CI: Agreements and Contract Data. In the
further alternative,
the plaintiff pleads that the parties had
concluded a party written, partly oral agreement once again in that
event, without the
non-variation clause as a term.”
2.
By deleting the last
sentence of paragraph 12.7 which starts with the words “The
parties did not” and in with a date
“June 2014”.
3.
By incorporating the
following as paragraphs 12.8 and 12.9:
“
12.8 The
original works as set out in the scope of the works had to be
performed within a period of 44 days.
12.9 The
conditions of contract were otherwise as per the Standard MEC3
Engineering and Construction Short Contract (of June
2005)., appended
as annexure C hereto”
[4]
The essence of the objections to the proposed amendment is contained
in page 27 of the papers before me. Paragraphs 1.2
and 1.3
reads as follows:-
“
1.2 The first
exception raised by the Defendant to the Plaintiff’s
Particulars of Claim (and upheld by the Honourable Court
in terms of
the judgment and reasons handed down for such judgment on the 28
th
of September 2017), was firstly premised on the issue that ANNEXURE
“A” to the Plaintiff’s Particulars of Claim,
prescribes and/or set out in detail, the manner and/or form of
acceptance for such document to bring about and/or to constitute
any
form of agreement between the parties thereto and secondly, premised
on the issue that the so-called variation clause excludes
any party
to such purported agreement, to rely on a tacit or implied acceptance
of the agreement and/or tacit and/or implied and/or
oral
incorporation of terms to such agreement as averred by the Plaintiff
in its Particulars of Claim in order to set up a cause
of action
therein against the Defendant.
1.3 Although the
proposed amendment of the Plaintiff’s Particulars of seeks to
address the second issue and/or leg of the
exception upheld by the
Honourable Court in its judgment and reasons handed down for such
judgment on 28
th
of September 2017, the Plaintiff’s proposal amendment in no
manner or way seeks to address the first leg and/or issue (and/or
to
remove the first complaint) on which the Defendant’s first
exception duly upheld by the Honourable Court, where premised.”
[5]
Mr Grobler, for the applicant, says that the respondent contends that
if annexure “A” and its terms on the document
has not
been complied with, there can be no for the purposes of the notice or
intention to amend no contract at all. This,
he submitted, that
it was incorrect that the respondent took the view that the parties
could not conclude any other form of contract.
He argued that
the applicant had pleaded the facts (if proved at the trial) that
gave rise to the conclusion of the contract.
These facts may
establish that parties concluded a written contract or a party
written/oral contract or oral contact.
[6]
Mr Snyman, for the respondent, replied that the
amendment was occasioned by the need to overcome the exception upheld
by my brother
Mhlambi J. He relied on and quoted extensively
the aforementioned judgment. He pointed out that the applicant
was seeking
leave to amend paragraph 7 of the particulars of claim by
relying on the written agreement excluding the non-variation clause
as
set out on page 3 of CI headed “Agreements and Contract
Data”. The written agreement was being introduced by way
of reference. The remainder of the document constitutes the
contract barring the non-variation clause. He referred
to
paragraph 9 of the particulars of claim not being amended in this
regard. In his view the amendment fell short of addressing
the
issues that were raised in the judgment referred to above. As a
result the application for leave to amend must be dismissed
with
costs.
[7]
The decision to grant or refuse an application to amend rests in the
discretion of the court.
[1]
In his approval of the principles laid down in a number of cases,
Ngcobo J wrote the following:-
“
The
principles governing the granting or refusal of an amendment have
been set out in a number of cases. There is a useful collection
of
these cases and the governing principles in
Commercial
Union Assurance Co Ltd v Waymark NO
.
The practical rule that emerges from these cases is that amendments
will always be allowed unless the amendment is
mala
fide
(made
in bad faith) or unless the amendment will cause an injustice to the
other side which cannot be cured by an appropriate
order for costs,
or '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'. These principles apply equally to a
notice of motion. The question in each
case, therefore, is, what do
the interests of justice demand?”
[2]
[8]
In this matter I am faced with two (2) diametrically opposed
viewpoints. The argument of the respondent is that the written
agreement is introduced by reference. As a result the applicant
is not complying with the judgment of Mhlambi J. I
do not find
this argument sound. The proposed amendment does not seek to
introduce a new cause of action. The respondent
is clearly
relying on the written agreement. In the alternative an oral
agreement without the non-variation. In essence,
what is
pleaded is the facts that the will (if proved) give rise to the
conclusion of the agreement. I find it unnecessary
to decide on
this aspect and that the trial court will determine it on the
appropriate occasion. It is incorrect for the
respondent to
take the view that the parties could not have concluded any other
form of contract. The fallacy of the argument
that the proposed
amendment will in any event be excipiable is that the proceedings
before me do not deal with an exception.
It will be in the
interest of justice that all issues are eventually finally ventilated
in this matter during the trial.
[9]
It is important to note that the cause of action as pleaded in the
initial particulars of claim was a claim based on contract.
This has not changed in the proposed amendment and there can be no
talk of a new cause of action being introduced by it.
The
applicant is in no way seeking to enforce a different right than the
one as initially pleaded. To that extent I do not
envisage any
prejudice to be suffered by the respondent in this regard. The
facts that has to be proved by the applicant
in order to succeed with
the claim are still the same.
[10]
Therefore I make the following order:-
10.1 The applicant
is granted leave to amend its particulars of claim on the terms as
set out in its notice of intention to
amend.
10.2 The applicant
is authorized and ordered to effect the amendment within ten (10)
days of this order.
10.3 The
respondent is ordered to pay the costs of this application.
_____________
MATHEBULA,
J
On
behalf of Plaintiff: Adv. S. Grobler
Instructed
by: Peyper Attorneys
Bloemfontein
On
behalf of
Defendant
:
Adv. C. Snyman
Instructed
by: Patshoane Henney Inc.
Bloemfontein
/roosthuizen
[1]
Caxton Ltd and Another v
Reeva Forman Pty Ltd and another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at 565G
[2]
Affordable Medicines Trust
v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC) at 261 C-D