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[2016] ZAGPPHC 276
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Abreu and Another v Petsana Family Meat & Chicken CC (2327/2005) [2016] ZAGPPHC 276 (22 April 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG SOUTH LOCAL
DIVISION
PRETORIA
22/4/2016
CASE NO: 2327/2005
Not reportable
Not of interest to other
judges
Revised.
IN THE MATTER BETWEEN
J. E DE
ABREU 1
st
PLAINTIFF
J. A
FERNANDES 2
nd
PLAINTIFF
And
PESTANA FAMILY MEAT &
CHICKEN CC 1
st
DEFENDANT
V.
PESTANA 2
nd
DEFENDANT
JUDGMENT
NKOSI, AJ:
1. This is an action
where the 1
st
and the 2
nd
Plaintiff claimed
payment in the amount of;
(a) R 1500 000-00;
(b) Interests on such
amount of 15, 5% p .a from date of summons to date of final payment;
(c) Payments in the
amount of R630 000-00(such lesser amount as the court may find);
(d) Interests in the
foresaid amount of R630 000-00 at a rate of 15, 5% p .a from date of
summons until date of final payment;
(e) Costs of suite and or
alternative relief.
2. The action is defended
and the Plaintiff later embarked on summary judgment proceedings,
eventually leave to defend was granted.
3. The defendants were
given an opportunity to serve and file their plea and all the process
in terms of Rule 35 and 37 were followed.
4. A request for further
particulars to the Defendant plea was served and filed which followed
by the process in terms of Rule 37(4)
5. It must be mentioned
that parties had been in court on various interlocutory processes
proving that it is not a new matter under
the same case number.
6. What is important for
this opposed motion proceedings and worth mentioning is that despite
various interlocutory process the
action finally got underway .The
Plaintiffs have led their evidence and their witnesses subjected to
the necessary processes:
6.1. While it remains
party-heard, the Plaintiffs brought an application to amend its
particulars of claim which was objected to,
during August 2011.
6.1.1. Amongst reasons
furnished the Plaintiff's was that the amendment will properly
ventilate the issues between the parties,
It is based on the same
debt, same cause of action, and there were details of the transaction
are properly pleaded as they emerged
from the evidence.
6.1.2. It was submitted
that the possible prejudice, which the defendants may have suffered,
have already been cured with costs
award .That the Defendants will
have an opportunity to file a consequential plea and will not suffer
any further prejudice as a
result of the amendment.
6.1.3. It was accordingly
submitted that the amendment should be granted with costs as the
opposition to the amendment is frivolous
and vexatious.
7. The Defendant's
objection, it was submitted was based on the introduction by the
plaintiff of a new cause of action which bearing
the knowledge
thereof since 15 June 2005 and Plaintiff's seek to amend their
pleadings after extensive evidence in support of the
Defendant's
version of events canvassed at the partly -heard trial:
7.1. The Defendant's
averred that the proposed amendment was based on introduction of a
new cause of action which was said to have
already prescribed.
7.2. Further submitted
that the Plaintiff's seek to introduce a new cause of action based on
a different agreement as a result of
the extensive evidence led at
trial.
7.3. It was further
submitted that on the Plaintiff's version its right to be repaid a
purchase price in terms of the written agreement
arose on the 31st
August 2004 has since prescribed on 31st August 2007 and that;
7.4. The Plaintiffs have
failed to satisfactorily explain why such amendment should be granted
at such late stage in the proceedings
despite having knowledge of the
agreement relied upon for roughly seven years.
8. It was further
applicants submission that the Plaintiffs have not suffered any
prejudice whatsoever and that there has not been
any evidence by the
Defendants and therefore no tailoring of any evidence:
8.1 The introduction of a
special plea of prescription was occasioned by the amendments
proposed by the plaintiffs and could not
be seen to complain when
they chose to introduce a cause of action described as prescribed.
9. CONSIDERATION
FOR ALL SUBMISSIONS
9.1. Both parties
referred to different decided cases and the unreported case which all
deal with issues of amendment of pleadings.
The difference between
the use of Rule 28 and Rule 6 came to fore.
9.2. It is noteworthy
that the Rules of court are there for the parties and to regulate the
legal process but not to defeat the
purpose of having a commenced
trial to be brought on its natural end.
9.3. The primary purpose
of allowing an amendment is to obtain a proper ventilation of the
dispute between the parties to determine
the real issues between them
so that justice may not only be done but seen to be done.
9.4. The general approach
is that amendments should be allowed unless the application is made
in bad faith and would cause injustice
which cannot be compensated by
an order for costs. A court hearing an application for an amendment
has discretion whether or not
to grant it and such discretion must be
exercised judicially.
9.5.
The difference between the
cases referred to is that this matter is party heard where the
Plaintiff had its cake but still
wants to have it, which is a second
bite on the same cherry. The proposed amendment attracted a response
about prescription.
9.6. In my view, the
Plaintiff proposed amendment of its particulars of claim and must
allow the Defendants to raise a special plea
on prescription and let
the trial court finalise the partly-head matter with equal
opportunities to both parties to be heard.
9.7. I could not find any
mala tides on the part of the proposed amendment and I could not find
any attempt to withdraw an admission
by such an amendment.
Consequently upon the
above, the court orders as follows:
(a)The amendment of the
particulars of claim is allowed and the Defendant is equally offered
an opportunity to raise its special
plea or accordingly;
(b)That the partly-head
matter be allowed to proceed to its natural end; and
(c) Costs be the costs in
the course.
______________________________
VRSN NKOSI
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,(PRETORIA)
APPEARANCES:
FOR PLAINTIFF ADV J.G
DOBIE
INSTRUCTED BY DU PLESSIS
DEHEUS INC
C/O GILDENHUYS MALATJI
INC
FOR DEFENDANT ADV G.
JACOBS
DAVID KOTZEN ATTORNEYS
C/O ANDRE RAE ATTORNEYS