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[2017] ZAGPPHC 51
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Uphawo Technologies CC v Martin Morgan Motors CC (12512/2012) [2017] ZAGPPHC 51 (17 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 12512/2012
DATE: 17/2/2017
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
IN
THE MATTER BETWEEN
UPHAWO
TECHNOLOGIES CC
APPLICANT
AND
MARTIN
MORGAN MOTORS CC
RESPONDENT
JUDGMENT
MAKHOBA
AJ
[1]
This matter came before me as an
application to amend particulars of claim and include in the
particulars of claim a rectification
of a written agreement. The
respondent objects to the application on the basis that the amendment
seeks to introduce a new cause
of action which has prescribed. In
addition respondent avers that applicant should have made the
application long time ago since
the matter has once being postponed
for trial as there was no court available to hear the matter. It is
further argued by counsel
for the respondent that the amendment is
excipiable. Counsel for the respondent submitted further that the
amendment if granted
must be cured by granting punitive costs against
the applicant.
[2]
The applicant is Uphawo Technologies CC, a
close corporation with the principal place of business at 3[...]
R[...] Street, Sinoville
Pretoria. Mr S E Kumalo is the sole member
of the applicant.
[3]
The respondent is Martin Morgan Motors, a
close corporation with principal place of business at comer of Grey
and Leslie Avenues,
Vereeniging Gauteng Province.
[4]
Applicant in the main action seeks to
cancel a contract of a purchase of a motor vehicle from the
respondent and tenders return
of the motor vehicle to the respondent.
However, respondent's defence in the main action is that it did not
enter into any agreement
with the applicant, but rather with Mr S E
Kumalo in his personal capacity. The written agreement between the
parties reflects
the purchaser in certain places as Mr SE Kumalo.
Applicant says this is an error and seeks to correct it by amending
the particulars
of claim to reflect the true purchaser of the motor
vehicle and the true contracting party being the applicant and not Mr
SE Kumalo
in his personal capacity.
[5]
Rule 28(10) reads as follows:
"The court may,
notwithstanding anything to the contrary in this rule, at any stage
before judgment grant leave to amend any
pleading or document on such
other terms as to costs or other matters as it deem fit."
Therefore in terms of
this rule it is possible for the applicant to amend a pleading at any
time before judgment. Therefore the
argument by counsel for the
respondent as to why applicant took so long to apply for the
amendment is without substance and cannot
succeed. Therefore
applicant is entitled to amend the particulars of claim at any time
before judgment.
[6]
In
Bester NO v
Schmidt Bou Ontwikkelings
2013 1 SA 125
(SCA) on p130 paragraphs I-J the court said:
"As in the case of
rectification of a contract, it therefore had no correlative 'debt'
as contemplated by the Prescription
Act, which could be extinguished
by prescription."
Thus, therefore it is my
view that in this matter before me the application sought by the
applicant is not a debt and it is not
of monetary value and cannot
therefore prescribe. Therefore the respondent cannot succeed in his
objection based on prescription.
[7]
The second ground of objection to the
proposed amendment is that the applicant intends to introduce a new
cause of action. In
Boundary Financing
Ltd v Protea Property Holdings (Pty) Ltd
2009
3 SA 447
(SCA) Streicher JA in paragraph [13] said the following:
"Rectification of an
agreement does not alter the rights and obligations of the parties in
terms of the agreement to be rectified:
their rights and obligations
are no different after rectification. Rectification therefore does
not create a new contract; it merely
serves to correct the written
memorial of the agreement."
[8]
In
Krischke v
Road Accident Fund
2004 4 SA 358
(W)
the court held that the party seeking an amendment bears the
onus
of showing that it is made
bona
fide
and that there is an absence of
prejudice. See also
Macduff and Company
(in liquidation) v Johannesburg Consolidated Investment Co Ltd
1923
TPD 309
;
Rosenberg v Bitcom
1935
WLD 115
;
Dumasi v Commissioner, Venda
Police
1990 I SA 1068 (V) at 1071B;
Brandon v Minister of Law and Order and
Another
1997 3 SA 68
(C) at 75.
[9]
The amendment can also be refused on the
ground of excipiability. In
Minister of
Defence, Namibia v Mwandinghi
1992 2 SA
355
(NMS) it was held that an amendment should only be refused on the
ground of excipiability. In this matter before me it has not been
shown how will the amendment, if granted, be excipiable.
[10]
In the following matters the substitution
of one entity for another has been allowed in order to ensure that
the true plaintiff
is before court. See
Page
v Malcomess and Co
1922 EDL 284
at
285-286;
Chinnian v Mphephu
1942
NPD 142
;
Yukwan v President Insurance Co
Ltd
1963 I SA 66 (T);
Samente
v Minister of Police and Another
1948 4
SA 632
(E);
Boland Bank Ltd v Roup,
Wacks, Kaminer and Kriger
1989 3 SA 912
(C);
Kotze NO v Sanlam Insurance Ltd
1994 I SA 237 (C).
[11]
In
Friend of
the Sick Association v Commercial Properties (Pty) Ltd and Another
1996 4 SA 154
(D) at 157E-F, the court
held that an amendment that has the effect of introducing a new
persona
in
law as the plaintiff is not itself a bar to the granting of such
amendment, subject only to consideration of prejudice to the
defendant.
[12]
From the host of decided cases referred to
above it is clear that applicant in this matter before me must show
that there will be
no prejudice should the amendment be granted. I am
satisfied that should the amendment be granted respondent will suffer
no prejudice.
There is also no risk that respondent might lose a
substantive defence should the amendment be granted.
[13]
Furthermore difficulties in respect of
prescription do not arise in this case, nor is there any suggestion
of
mala fides
on
the part of the applicant.
[14]
I am satisfied that in granting the
amendment it will not constitute a new cause of action. If this court
were to dismiss this application,
all that would happen is that the
action would be instituted afresh in the name of the present
applicant and with precisely the
same cause of action. Inevitably the
defence also would be put up in precisely the same terms, giving rise
to the same issues that
are to be tried. The result would be a waste
of time and a waste of costs.
[15]
In the result, I make the following order:
1.
Applicant is granted leave to proceed to
effect its proposed amendment of its particulars of claim, under case
number 12512/2012
dated 15 March 2016.
2.
The respondent to pay the costs of this
application.
D MAKHOBA
ACTING JUDGE OF THE
GAUTENG DIVISION
PRETORIA
HEARD
ON:
06/02/2017
FOR
THE APPLICANT:
ADV. BD STEVENS
INSTRUCTED
BY:
JOHAN SYSSCHENS ATTORNEYS
FOR
THE RESPONDENT:
INSTRUCTED
BY:
ROB LAUBSHER ATTORNEYS