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[2016] ZAFSHC 61
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Roses United Football Club (Pty) Ltd v St Andrews School (1582/2015) [2016] ZAFSHC 61 (7 April 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1582/2015
In
the matter between:
ROSES
UNITED FOOTBALL CLUB (PTY) LTD
Applicant
and
ST
ANDREWS
SCHOOL
Respondent
HEARD
ON:
31 MARCH 2016
JUDGMENT
BY:
MOLOI, J
DELIVERED
ON:
7 APRIL 2016
MOLOI,
J
[1]
The applicant is the defendant in the main case (the claim) and
lodged this application to amend a plea it delivered in response
to
the summons issued by the respondent, the plaintiff in the main case
(the claim). The application is opposed.
[2]
On 31 March 2015 the respondent issued a summons against the
applicant based on an agreement between the parties annexed to
the
particulars of claim and marked Annexure “A”. The
applicant admitted certain allegations made in the further
particulars of claim in its plea. On 19 October 2015 when the
respondent requested further particulars in terms of Rule 21(2)
of
the Uniform Rules of Courts, the applicant realised that there were
some discrepancies between the further particulars and the
agreement
on which they were based as contained in Annexure A and that the
admissions made required to be amended as a result.
[3]
The following were the purported discrepancies:
3.1
In paragraph 4.3 the particulars of claim read
“
The
defendant would be responsible for the maintenance of the leased
premises at its own costs which would include the following:
4.3.1
The maintenance of the leased premises more specifically the sport
fields and cricket ground
and the pitch at a standard
comparable to the main cricket field and pitch situated on the
Plaintiff’s school ground.”
However,
the agreement itself, Annexure ‘A’ read as follows:
“
2.
Roses United shall maintain the leased area at their costs and in
particular the fields at a standard or level comparable
to the St.
Andrews a cricket field situated on Saints School grounds.”
The
leased area is described in the agreement as follows:
“
And
whereas Roses United has previously utilised the
cricket/football/rugby field and the relevant change rooms at the
premises
(the leased area).”
The
cause of complaint in the above is that in the agreement itself there
is no reference made to “the pitch” and the
inclusion of
that phrase in the particulars of claim effectively altered the terms
of the agreement between the parties.
It was contended in
argument that maintenance of a pitch is a specialised undertaking
going beyond the maintenance of a cricket
field and therefore the
inclusion of a pitch in the particulars of claim extended beyond the
maintenance envisaged in the agreement.
3.2
The second ground of complaint is that in paragraph 4.4 of the
particulars of claim the following
is stated:
“
4.4
The leased premises would only be used by the Defendant for the
training purpose of its professional
soccer team, provided such
training and use did not clash with any school activity arranged and
organised by the Plaintiff and/or
contrary to the contravention of
the aforementioned school act.”
It was
argued that the above altered the wording of the agreement and
created the impression other than that agreed to in the agreement
which stated in its paragraph 3:
“
3.
Roses United shall only use the area in the main for training
purposes of its professional soccer team.
This shall also not
however exclude non-professional soccer games and other activities
for Rose United conditional upon the last
two mentioned activities
not clashing with any school activity nor be in contravention of the
head lease with the Mangaung Municipality
or the
South African
Schools Act No. 84 of 1996
.”
3.3
The submission was made that there was a huge difference between the
particulars of claim and
the agreement if regard was had between
paragraph 4.6 of the particulars and clause 4 of the agreement.
Paragraph
4.6 of the particulars of claim stated:
“
4.6
At all material times preference would be given to the use of the
leased premises by the learners of
the Plaintiff’s school and
more specifically for the use of the cricket field and cricket pitch
for training and matches.”
Clause
4 of the agreement provided:
“
4.
It is recognised and agreed that Saints will also utilise the fields
situated on the leased area from
time to time. Both Saints and
Roses United shall make arrangements among themselves for the
relevant timeslots for the use
of the fields by themselves.
Wherever possible preferences shall be given to Saints for the use of
the fields with particular
reference to the usage of the field for
cricket training and/or matches.”
[4]
It was conceded during arguments before me that both the further
particulars and the agreement were before the applicant when
the plea
was drafted and subsequently delivered. It was also conceded
that the discrepancies, if any, were minor in nature.
It goes
without saying that the validity of the disagreements are not for me
to decide. Mine is to determine whether or not
an amendment
should be granted.
[5]
Both parties correctly submitted that the granting or not of an
amendment especially the withdrawal of an admission made lies
in the
discretion or the court. This discretion, like all other
discretions the Court is at liberty to exercise, must be
exercised
judiciously bearing in mind certain principles that may underlie each
discretion. In this case the court must first
consider whether
an explanation was given as to why the admission was made and second
why the admission is now sought to be withdrawn:
Amod
v SA Mutual Fire and General Insurance Co. Ltd
1971 (2) SA 611
(N). In this regard the only explanation
offered by the applicant is that only when the request for further
particulars in
terms of
Rule 21
(2) was made it was realised that the
terms of the agreement were couched differently from the particulars
of claim meaning, in
essence, when the plea was drafted the drafter
assumed
the particulars of claim were in line with the terms of the
agreement.
[6]
When the court considers the granting or not of an amendment two
guiding principles come to the fore, namely (a) was there
a
bona fide
mistake
on the part of a party seeking to amend and (b) will the
amendment cause prejudice to the other party which cannot
be cured by
an appropriate costs order. In its founding affidavit, the
applicant submitted that the intended amendments were
caused by the
error that was based on its acceptance/expectation that the
particulars of claim would be in line with the agreement
and was,
consequently, not
mala fide
and that there would be no prejudice against the respondent.
These allegations were not disputed in reply and the court can
accept
they are valid. The primary objective, however, in allowing an
amendment is to see to justice been done:
Moolman
v Estate Moolman
1927 CPD 27.
Justice can only be done if the parties are allowed to properly
ventilate the dispute between them so that the court can
be seized
with the determination of the real issues between them:
Trans-Drakenberg Bank Ltd v Combined
Engineering (Pty) Ltd
1967 (3) SA
632
(D): To deny a party an amendment that can only serve to
ensure justice is done will be inexcusable.
[7]
In this matter it is clear that the objective of the proposed
amendments is to bring the plea in like with the agreement in
the
light of the alleged differences between it and the particulars
of claim. Whether that is so or not is to be decided
at the
trial. The application for amendment remains on indulgence
sought from the court especially where both the particulars
of claim
and the agreement were provided to the applicant before the plea was
drafted and served. The application to amend
will therefore
have cost consequences for the applicant.
[8]
In the result, the following order issues:
8.1
The application for amendment of the plea is granted.
8.2
The applicant is ordered to pay the costs of the application.
____________
KJ
MOLOI, J
On
behalf of applicant: Adv.
GJ Bredenkamp
Instructed
by:
Bredenkamp
Attorneys
Bloemfontein
On
behalf of respondent: Adv. L Strating
Instructed
by:
Symington
& De Kok
Bloemfontein
/PC