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[2017] ZANCHC 40
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Rope Construction Co (Pty) Ltd v Blazercor 116 CC and Another (CA&R117/2016) [2017] ZANCHC 40 (26 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO: CA&R 117/2016
DATE
HEARD: 15 MAY 2017
DATE
DELIVERED: 26 MAY 2017
In
the matter between:
ROPE
CONSTRUCTION CO (PTY)
LTD
Appellant
-
v -
BLAZECOR
116
CC
1
st
Respondent
LANGE,
IZAK JACOBUS JEREMIAS
2
nd
Respondent
Coram:
Mamosebo J
et
Ndlokovane AJ
JUDGMENT
NDLOKOVANE
AJ
[1.]
This is an appeal against the decision of the
learned Magistrate Ms Tsotsa handed down on 7 September 2016 to
disallow an amendment
to the particulars of claim during the course
of a trial. The Magistrate dismissed the claim of the appellant
with costs.
The appeal is only proceeding against the 2
nd
respondent and accordingly postponed against the 1
st
respondent which has been placed under business rescue.
[2.]
During the proceedings of the appeal, there was
no appearance on behalf of the respondents, even though there was
proper service
on them which they received on 7 December 2016 at
09:48, nor did they file heads of argument and/or practice notes in
terms
of the Uniform Rules of this Court.
[3.]
The appellant, Rope Construction Co (Pty) Ltd
(“
Rope”
)
in the Court
a quo
,
sued the 1
st
respondent, Blazecor 116 CC (“
Blazecor”
)
and the 2
nd
respondent, Izak Jacobus Jeremias Lange (“
Lange”
)
for the payment of the sum of R304 900.00 plus interest at the
rate of 2% per month
a tempore morae
to date of final payment and costs of suit on the scale of attorney
and client. This claim is denied by the respondents.
BASIS
OF THE APPELLANT’S CLAIM
[4.]
Rope’s claim against Blazecor in the Court
a quo
was based on the
following salient features:
4.1
On 20 February 2012, Blazecor, represented
by Lange, executed a
written application for credit facilities in favour of Rope.
The credit application form was annexed
to Rope’s particulars
of claim as annexure “B”.
4.2
The credit application was accepted by Rope and
Blazecor agreed to be
bound by the terms and conditions expressed therein.
4.3
Pursuant to the conclusion of the agreement as
set out in annexure
“B” and during the period in question, Rope supplied
Blazecor with the goods in terms of the agreement,
at Blazecor’s
special instance and request.
[5.]
Rope further contends that by signing annexure
“B”, Lange agreed to bind himself as surety and
co-principal debtor
in solidum
in favour of Rope for the due performance by Blazecor and waived the
benefits of all legal exceptions. Therefore, Lange is
liable
together with Blazecor for payment.
RESPONDENT’S
AMENDED PLEA
[6.]
Blazecor denies entering into a credit
application at all with Rope, furthermore it contends that the credit
application is not
legible and for that reason denies the
allegations. Blazecor also denies that goods were sold by Rope
to it. Not only did
it not receive such goods, it also denies any
compliance with s129 of the
National Credit
Act
, 34 of 2005 (“
the
NCA”
) by Rope. Consequently denies any
suretyship executed by Lange.
ISSUES
FOR DETERMINATION
[7.1]
Whether the Court
a quo
misdirected itself by rejecting the
proposed amendment by Rope in support of its closing arguments;
[7.2]
The suretyship embodied in annexure “B”;
[7.3]
The uncontested evidence in legal proceedings.
AMENDMENT
OF PLEADINGS DURING TRIAL
[8.]
Section 111 of the
Magistrate’s
Court Act 32 of 1944
(“
the
MCA”
) deals with amendments which a
party desires to make in his own pleadings.
[9.]
Application for amendments in terms of this
section have been entertained by our Courts and allowed even after
both sides have closed
their cases and in certain cases even after
the conclusion of arguments (see in this regard Levy v Rose,
1903 20
SC 189).
See also
KASPER V ANDRE KEMP
BOERDERY CC,
2012 (3) SA 20
(WCC)
.
[10.]
It is common cause that Rope, after closing its
case just before addresses, moved for an amendment of paragraph 6 of
its particulars
of claim to read:
“
Pursuant to the
conclusion of annexure “B” the Plaintiff, resultant from
orders placed upon it by the 1
st
Defendant, supplied 1
st
Defendant with goods. The balance due and owing to the
Plaintiff by the 1
st
Defendant in respect thereof is the sum of R304 900.00
”.
[11.]
Rope alleged that the purpose of the amendment
was to bring the pleadings in line with the uncontested evidence,
namely the sum
aforesaid claimed is a “
balance
due
” by Blazecor to Rope of its only
witness, Mr Craig Ramsay, its financial director.
[12.]
Mr Ramsay testified that Blazecor made payment
totalling the sum of R360 000.00, leaving a balance due of
R304 000.00
to Rope, and prior to the institution of this
action, Lange had never raised any dispute as to the amount claimed.
Blazecor
was afforded the opportunity to object to the amendment, and
in fact in submission of its heads of arguments it dealt with the
grounds for its objection extensively. Paragraph 7.12 reads:
“
Defendants will
be severely and materially prejudiced should the amendment be
effected on this basis as it will constitute a totally
new cause of
action to which defendant were never afforded an opportunity to plead
or answer. If the amendment is allowed,
it would resuscitate a
claim which might have become prescribed at this stage due to the
fact that summons was served more than
3 (three) years after 1
st
Defendant applied or credit securities”.
[13.]
It is clear from the record that the notice for
amendment was filed as a separate document accompanying the written
submissions
at the Court
a quo
.
Blazecor was afforded the opportunity to deal with it which indeed it
dealt with as part of its written submissions as aforesaid.
[14.]
I agree with Rope that bringing an amendment at
this stage couldn’t have prejudiced Blazecor in any manner that
couldn’t
be compensated by an order of costs. The
amendment therefore ought to have been allowed, particularly
considering the fact
that the evidence was only elicited through
cross-examination by the respondents’ legal representative.
There was no rebuttal
evidence to reject this notion, Rope has
objected to it being raised at that stage of the proceedings.
The objection was
overruled.
[15.]
Rope had no option other than to bring the
amendment so as to bring the uncontroverted evidence in line with its
pleadings [See
SARFU & OTHERS V PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA & OTHERS
,
2000 (1) SA 1
(CC)
at
61 to 64].
CERTIFICATE
CLAUSE IN THE DEED OF SURETYSHIP EMBODIED IN ANNEXURE “B”
[16.]
S133(2) of
the
Companies’
Act
[1]
reads that:
“
During business
rescue proceedings, a guarantee or surety by a company in favour of
any other person may not be enforced by any
person against the
company except with leave of the Court and in accordance with any
terms the Court considers just and equitable
in the circumstance”.
[17.]
The above section is a special provision dealing
specifically with the enforcement of claims against the company based
on guarantee
and suretyships, and stipulates that in such cases the
claims against the company may be enforced only with the leave of the
Court.
[18.]
At the hearing of this application, Mr Ioulianou
on behalf of the appellant, referred the Court to two Court cases in
this regard,
one being
INVESTEC BANK V BRUYNS,
2012 (5) SA 430
(WCC)
and also
BUSINESS
PARTNERS LTD V S & OTHERS,
2016 (4) SA 390
(WCC
).
[19.]
In dealing with the issue relating to the
certificate of balance, Mr Ioulianou further referred the Court to
the case of
SENEKAL V TRUST BANK OF AFRICA
LTD,
1978 (3) SA 375
(A)
in which the then
Appellate Division held:
“
The appellant
could only at his own peril refrain from giving or leading evidence
to counter the prima facie proof of the indebtedness
afforded by the
certificate.”
The
Court further held that:
“
When all the
evidence, including the certificate, was in, the Court has to decide
whether the party upon whom the onus rested had
discharged it on a
proper balance of probabilities
”.
[20.]
As regards to the certificate of balance, Mr
Ramsay testified about it, and same was handed up at Court by
agreement, and marked
as annexure “B”. This
certificate clause is denied by Blazecor in its plea although it
never challenged it.
[21.]
During the hearing of the appeal the Court raised
the slight difference between the two certificates, one which was
unsigned and
formed part of the pleadings and the signed one which
was handed up at Court
a quo
during the hearing. Despite that, the Court agreed that these
differences remain immaterial to the issues for determination.
[22.]
In careful consideration of Blazecor’s
denial in its pleadings as aforesaid. The Court fails to understand
why Blazecor then
signed the acknowledgement of debt?
[23.]
The inference that the Court can draw under these
circumstances is nothing other than a debtor who would order goods
and not pay
for it and upon demand for payment would go an extra mile
to put bare denials like what Blazecor did at these proceedings.
[24.]
Having regard to the foregoing considerations, I
am of the view that the appeal ought to succeed. In
consequence, the following
order is appropriate:
1.
THE APPEAL IS UPHELD.
2.
THE ORDER OF THE COURT
A
QUO
IS SET ASIDE AND IS SUBSTITUTED
WITH THE FOLLOWING:
“
THE
SECOND RESPONDENT TO PAY THE APPELLANT AN AMOUNT OF R304 900.00, WITH
INTEREST AT THE RATE OF 2 % PER ANNUM
A
TEMPORE MORAE
FROM THE DATE OF SERVICE
OF THE SUMMONS, TO DATE OF FINAL PAYMENT.”
3.
THE SECOND RESPONDENT IS ORDERED TO PAY
THE COSTS OF SUIT, INCLUDING COSTS OF THE COUNSEL.
________________________________________
NDLOKOVANE
N
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE HIGH COURT, KIMBERLEY
I
concur.
________________________________________
MAMOSEBO
M
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE HIGH COURT, KIMBERLEY
For
Appellant:
ADV. IOULIANOU
(MaCartney
Attorneys c/o Duncan & Rothman Inc.)
For
the Respondent/s:
NO APPEARANCE
[1]
71 of 2008