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[2017] ZAGPPHC 52
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F & J (Pty) Limited v Invest in Property 104 (Pty) Limited and Another (68257/2015) [2017] ZAGPPHC 52 (21 February 2017)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: 68257/2015
Date: 21/2/2017
Not reportable
Not of interest to other judges
Revised.
In the matter between:
F & J (PTY)
LIMITED PLAINTIFF
AND
INVEST IN PROPERTY 104 (PTY)
LIMITED FIRST
DEFENDANT
VERDI
SCHOLTEMEYER SECOND
DEFENDANT
JUDGMENT
TOLMAY,
J:
INTRODUCTION:
[1] The Plaintiff instituted action
for damages against the Defendant during August 2015 for payment of
an amount of R465 855-00
flowing from the first Defendant’s
alleged repudiation of an oral agreement between the parties
alternatively a delict committed
by the First Defendant.
[2] The Defendants delivered their
plea and counter-claim on 23 October 2015. On 13 November 2015
Plaintiff delivered a plea on
the counter-claim.
[3] On 18 November 2015 the Defendants
delivered a notice of exception. The Plaintiff states that despite
legal advice that the
exception was mostly without merit, it was
advised to amend its pleadings to avoid a protracted opposed
exception hearing and the
resultant costs. As a result the Plaintiff
delivered a notice of amendment on 14 December 2015.
[4] On 17 December 2015 Defendant
filed an objection to the amendment which necessitated the bringing
of this application.
CONDONATION:
[5] The application for leave to amend
was filed out of time. The Defendants objected to condonation being
granted. The application
for leaver to amend was filed 28 days late.
The reason for the delay was that the notice of objection was filed
on 17 December
2015 and Counsel for Plaintiff, who was briefed to
attend to the drafting of the application, has already left for the
recess period.
Counsel returned on 11 January 2016 and e-mailed the
draft application on 13 January 2016 to his attorney. Due to work
pressure
after the recess period the attorney only filed the papers
on 4 February 2016. Although work pressure as such may not always be
an acceptable excuse for a delay, I am of the view that in this
instance the delay was not inordinate in the light of the fact
that
the festive period preceded it and furthermore and more importantly
the Defendant did not show that it suffered any prejudice.
[6] As a result I exercise my
discretion and condonation for the late filing of the application for
leave to amend is granted.
THE
MERITS:
[7] The Defendants’ objection
against the amendment of Plaintiff’s plea is limited to par
2.15.1 and 2.16.2 of the notice
of amendment. Paragraph 2.15.1 deals
with par 16 of the Defendants’ plea and par 2.16.2 deals with
par 18 of the plea.
[8] Paragraph 16 of the Defendants’
plea reads as follows:
“
16.1 In terms of the
provision of the Prospecting Agreement, the Prospecting Right, the EM
Plan, the Draft Agreement and the legislation,
Plaintiff was obliged
to apply to the Department of Water Affairs (herein referred to as
“
DWAF
”) for a Water Use Licence in
terms of the National Water Act, Act No. 36 of 1998 (as amended) for
the Prospecting Area;
16.2 Plaintiff failed and/or
neglected to apply for the Water Use Licence which rendered
Plaintiff’s prospecting activities
and retrieval of diamonds
in, on or under the Prospecting Area illegal in terms of the
Prospecting Agreement, the Prospecting Right,
the EM Plan, the Draft
Agreement and the legislation and more in particular the Diamonds
Act, Act No. 56 of 1986.”
[9] Paragraph 2.15 of the notice of
amendment reads as follows:
“
2.15
Sonder
om afbreuk te doen aan die voorafgaande, pleit die Eiser spesifiek
soos volg op paragraaf 16 van die Verweerder se pleit
:
2.15.1 “
Dit word
ontken dat die Eiser verplig was om aansoek te doen vir
‘n water gebruiklisensie;
2.15.2 Dit word ontken dat die
Eiser nie vir ‘n water gebruiklisiensie aansoek gedoen het nie
en Eiser verwys in hierdie verband
na paragraaf 2.15.1 hierbo; en
2.15.3
Die verdere bewerings in hierdie paragraaf vervat word ontken as of
spesifiek teengespreek
.”
[10] In the notice of objection to the
amendment the Defendants state as follows regarding par 2.15.1:
“
4. Plaintiff has not denied
that the Prospecting Right, the EM Plan and the Draft Agreement forms
part of the Prospecting Agreement;
5.
Ad sub-paragraph 2.15.1 of
the Notice of amendment (re paragraph 16 of Defendants’ Plea):
In view of Plaintiff’s
admission of the content of the Prospecting right, the Draft
Agreement and the content of paragraph
4 supra read with paragraph
16.1 of Defendants’ Plea, Plaintiff is barred from denying that
it was obliged to apply to DWAF
for a water use licence and the
denial therefore renders the proposed amendment expiable”.
[11] The essence of Defendants
complaint against paragraph 2.15.1 of the notice of amendment is that
it is submitted that the plaintiff
did not deny that the prospecting
right, the environmental management plan and the draft agreement
formed part of the prospecting
agreement which the parties entered
into. It is common cause on the pleadings that the parties entered
into an oral prospecting
agreement. In paragraph 7.2 of the
Defendants’ plea on Plaintiff’s claim, which is
incorporated in the counter-claim,
the Defendants alleged that the
prospecting right which was issued in terms of the Mineral and
Petroleum Resources Development
Act, Act no 28 of 2002 as amended
(the MPRD Act) formed part of the prospecting agreement. In paragraph
13.5 of the plea Defendant
alleged that the Environmental Management
Plan (the EM plan) also formed part of the prospecting agreement.
Despite these admissions
Defendant nowhere in the pleadings expressly
alleged that the draft agreement formed part of the prospecting
agreement. Consequently
no direct denial of the draft agreement was
required.
[12] In any event, in paragraph 2.14
of the existing plea on the counter-claim, Plaintiff denied
each and every other allegation
contained in the counter-claim,
consequently the Plaintiff did indeed deny the allegations referred
to above. Even if it could
be argued that the Defendant by
implication in paragraph 16 of the plea admitted that the draft
agreement formed part of the prospecting
agreement, it is directly
denied in the proposed paragraph 2.15. As a result there is no merit
in this objection.
[13] The next complaint deals with par
2.16.2 of the notice of amendment, which is a plea on par 18 of the
Defendants plea. Paragraph
18 of the plea reads as follows:
“
18
.
It was a term of the
Prospecting Agreement that Plaintiff, as contractor/prospector, would
be responsible for the rehabilitation
of the Prospecting Area and
indemnified First Defendant against any claim or claims instituted by
the Regional Manager in connection
with any rehabilitation
operations.
”
[14] In the proposed notice of
amendment par 2.16 the Plaintiff pleaded as follows to paragraph 18
of the plea:
“
2.16 Wat paragraaf 18 van
die Verweerders se pleit betref, pleit die Eiser spesifiek soos volg:
2.16.1 Dit word erken dat dit ‘n
term was van die prospekteerooreenkoms dat die Eiser verantwoordelik
sou wees vir rehabilitiasie
van die prospekteer gebied; en
2.16.2 Iedere en elke ander
bewering in hierdie paragraaf vervat word ontken asof spesifiek
teengespreek”.
[15] In the notice of objection the
Defendants state as follows regarding par 2.16.2:
“
6.
Ad
sub-paragraph 2.16.2 of the Notice of Amendment (re paragraph 18 of
Defendants’ Plea):
6.9 In sub-paragraph 2.16.1 of the
Notice of Amendment, Plaintiff admits that “it was a term of
the Prospecting Agreement
that plaintiff, as contractor/prospector,
would be responsible for the rehabilitation of the prospecting area”
(herein referred
to as “
the rehabilitation obligation
).
6.2 In sub-paragraph 2.16.2 of the
Notice of Amendment, plaintiff denies that in terms of the
Prospecting Agreement it “indemnified
First Defendant against
any claim or claims instituted by the Regional Manager in connection
with any rehabilitation operation”
(hereinafter referred to as
“
the indemnification
).
3. In view of Plaintiff’s
admission of the content of the Prospecting Right, the Draft
Agreement and the content of paragraph
4 supra read with paragraphs
18 and 22 of Defendants’ Plea, Defendant is barred from denying
the indemnification and the
denial therefore renders the proposed
amendment excipiable. Paragraph 22 of Defendants’ Plea refers
specifically to clause
3.7.10 of the Draft Agreement, the content
whereof has been admitted by Plaintiff.
4. The indemnification also
constitutes the natural consequence of the rehabilitation obligation,
which obligation has been admitted
by plaintiff in sub-paragraph
2.16.1 of the Notice of Amendment.”
[16] In paragraph 2.16 of the proposed
plea to the counter-claim plaintiff admits that it was responsible
for the rehabilitation
of the prospecting area, the rest of the
allegations contained in paragraph 18 are denied.
[17]
Defendants’ objection is that plaintiff can’t at the same
time admit the obligation to rehabilitate while denying
the
obligation to indemnify. Plaintiff however argued that the obligation
to rehabilitate and the obligation to indemnify are two
distinct
obligations as in
Emco
(SA) (Pty) Ltd v P Maltioda’s Construction Co (SA) (Pty) Ltd
[1]
and
Dodd
v Estate Cloete
[2]
it was found that a claim for damages (which will follow if plaintiff
breaches its responsibility to rehabilitate) can’t
be equated
to a right to indemnify. This submission is correct and as a
result the objection against the amendment has no
merit.
COSTS:
[18] Plaintiff requested a punitive
costs order and argued that as a result of the delay caused such an
order will be appropriate.
I am however of the view that such an
order will not be appropriate as the Defendants’ decision to
launch the objection on
the papers does not seem to be
mala fide
or an abuse of process.
[19]
Consequently I make the
following order:
19.1 Condonation is granted for the
late filing of the application for leave to amend;
19.2 Leave is granted to Plaintiff
to amend its plea in accordance with Plaintiff’s notice of
amendment filed on 14 December
2015; and
19.3 Defendants are ordered to pay
the costs of the application jointly and severally the one paying the
other to be absolved.
____________________
R G TOLMAY
JUDGE OF THE HIGH COURT
DATE OF
HEARING:
6 FEBRUARY 2017
DATE OF
JUDGMENT:
21 FEBRUARY 2017
ATTORNEY FOR
APPLICANT:
JAPIE VAN ZYL PROKUREURS
ADVOCATE FOR APPLICANT:
J P VORSTER (SC)
ATTORNEY FOR DEFENDANT:
LK JOUBERT ATTORNEYS
JAFFER INC
1
1967(1) SA 326 (N) on 332 H-33A