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[2016] ZAGPPHC 691
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Magnum Simplex International (Pty) Ltd v The MEC, Provincial Treasury, the Provincial Government of Limpopo (70477/09) [2016] ZAGPPHC 691 (28 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 70477/09
DATE: 28 July 2016
Not reportable
Not of interest to other
judges
Revised
MAGNUM
SIMPLEX INTERNATIONAL (PTY)
LTD Applicant
v
THE MEC PROVINCIAL
TREASURY, THE PROVINCIAL
GOVERNMENT
OF
LIMPOPO Respondent
JUDGMENT
MABUSE
J:
[1]
This is an application by the defendant in terms of Rule 28(1) of the
Uniform Rules of Court for leave to amend some of its
counter claims
against the plaintiff. This application is opposed.
Firstly,
I will deal with the extent of the intended amendments and thereafter
the grounds on which the plaintiff objects to the
application.
[2]
The applicant in this matter is a company registered with limited
liability in terms of the company laws of this country with
its
principle place of business at 78A Biccard Street, Polokwane, in the
province of Limpopo. It is the defendant in the main action
between
the parties. The respondent is MEC Provincial Treasury, the
Provincial Government with its offices situated at lsmani Towers
46
Hans Van Rensburg Street, Polokwane, also in the Limpopo Province.
The respondent in this application is the plaintiff in the
aforementioned main action. For purposes of convenience I will, in
this application, refer to the parties by the names they chose
to
call themselves in the main action.
[3]
By the combined summons issued by the registrar of this Court on 17
November 2009, (I hope I am correct as the date stamp is
somewhat
indistinct), the plaintiff claims against the defendant the following
relief:
"1. An order
declaring that the purported approval/exemptions in respect of
NTP8419 and 8937 are invalid, void and ab initio
and falls to be set
aside,·
2. an order declaring
that annexure '8' is invalid, void ab initio and falls to be set
aside;
3. repayment of the
amount of R98,486, 141.00 less any amount lawfully paid to the
defendant in terms of NTP6891;
4. interest on the
amount of R98,486, 141.00 at the prescribed legal rate of
interest per annum a tempore morae, alternatively
from the date of
the summons,·
5. costs of suit, such
cost to include the cost occasioned by three counsel,·
6. further and/or
alternative relief."
[4]
The plaintiff's cause of action arises from a written contract
comprising of several parts the principle parts of which consist
of
Project Management and the Licence Agreement. The said agreement, and
this is common cause between the parties, was lawfully
terminated on
6 October 2008. On the basis of the said agreement the Defendant
launched 23 counterclaims against the plaintiff.
It is some of these
23 counterclaims, in particular, counterclaims 4-6 and 8-22 that the
defendant seeks to amend. Needless to
say the plaintiff has delivered
a notice of objection to the intended amendment.
[5]
As set out above, the defendant seeks to amend its counterclaims 4-6
and 8-22. In support of its application to amend the said
counterclaims, the defendant relies for that purpose on the affidavit
of a certain Thamotharan Pillai Prahabaran ("Prahabaran"),
an adult male director and its shareholder. In his motivation of the
application, Prahabaran testified that the proposed amendment
does
not constitute a separate cause of action; that the defendant merely
seeks to amend some of its counterclaims without introducing
a new
cause of action; that the new claims represent fresh quantifications
of the original claims and an addition of further items
of damages
arising from the same cause of action and finally that the amendments
consist of triable issues in which the defendant
still has to lead
evidence and which issues cannot be disposed of at a Rule 28
application.
[6]
Rule 28(3) of the Uniform Rules of Court states that an objection to
a proposed amendment shall clearly and concisely state
the grounds
upon which the objection is founded. The plaintiff has complied with
the provisions of the aforementioned sub-rule
inasmuch it has,
through the answering affidavit of one Perceival Raymond Theodore
Rudman ("Rudman"), set out the grounds
upon which it
objects to the defendant's application to amend its counterclairns.
[7]
The respondent has raised several grounds of objection against the
application for leave to amend and these grounds are, among
others
that the new counterclaims:
7.1.
are
founded on an agreement that has been lawfully cancelled;
7.2.
consist
of claims that have been extinguished by prescription;
7.3.
that
there was an inordinate delay in launching them;
7.4.
that
the plaintiff will be prejudiced if they are allowed; and finally,
7.5.
that
the defendant acted mala fide by bringing the new counterclaims.
[8]
Before turning to the grounds of objection it is, however, necessary
to restate the applicable principles in the application
such as the
instant one. The onus is on the respondent to establish the
objections it has raised. See in this regard Levitan vs
New Haven
Holiday Enterprises CC 1991(2) SA 297 C at p 288 A which dealt with
an exception. The principle applicable to the ground
of objection
raised on exception applies in equal measures to the grounds of
objection raised by the plaintiff in the instant application.
In
granting an amendment, the Court grants an indulgence. It exercises a
discretion by leaning in favour of the applicant to ensure
that
justice between man and man prevails.
[9]
It is only apposite at this stage that I contextualise the
defendant's counterclaims so as to place the plaintiff's objection
in
a better perspective. In these contemplated counterclaims the
defendant seeks to be paid or compensated for outstanding Annual
Fees
and interest accrued over the relevant periods. Such periods will
become clear at a later stage when I deal with the individual
counterclaims. It will also become clear why the plaintiff contends
in particular that the counterclaims are based on an agreement
that
has been cancelled and furthermore why the plaintiff has taken a
point that these counterclaims were launched a very long
time after
the contract was cancelled, in other words, why it contends that the
contemplated counterclaims have become prescribed.
[10]
In its 4th counterclaim, the defendant pleaded, in respect of its
original claim 4, that it seeks Annual Licence and Supporting
Fees
for the remaining modules of Finest as per Schedule 3 for the period
14 May 2009 to 13 May 2010. In the contemplated amendment,
the
defendant intends deleting the date 13 May 2010 and replacing it with
13 May 2016 so that the counterclaim 4 reads as follows:
"The
Annual Licence and Support Fees for the remaining modules of Finest
as per Schedule 3 for the period 14 May 2009 to 13
May 2016 have
accrued and increased the amount claimed therein to R98,559,783.70.”
[11]
In counterclaim 5, the defendant seeks Annual Licence and Support
Fees for the Procurement Module of Finest as per Schedule
1 for the
period 1 December 2009 to 30 November 2010. The defendant intends
amending the said claim by deleting the date 30 November
201O and
replacing it with the date 30 November 2016 so that the new claim 5
now reads as follows:
"The
Annual Licence and Support Fees for Procurement Module of Finest as
per Schedule 1 for the period 1December 2009 to 30
November 2016.11
The
amount claimed in the counterclaim, R1,392,331.36, would resultantly
be increased to R12,622,274.14.
[12]
In respect of the original counterclaim 6, the applicant seeks Annual
Licence and Support Fees for the Assets Module of Finest
as per
Schedule 2 for the period commencing on 1 January 2010 to 31 December
2010. The defendant contemplates amending the original
counterclaim 6
by deleting the date 31 December 2010 and replacing it with the date
31 December 2016 so that the new counterclaim
6 reads as follows:
"The
Annual Licence and Support Fees for Asset Module of Finest as per
Schedule 2 for the period 1 January 2010 to 31 December
2016. 11
The
original amount claimed in respect of the counterclaim R2,500,968.51
would also be automatically increased to R22,819,727.50.
[13]
In respect of counterclaim 8, which is a claim for interest payable
as a result for the late payment of software fees for the
supply and
installation of the software in terms of Schedule 3, the defendant
intends amending paragraph 137 of its original counterclaim
so that
the new paragraph 137 reads as follows:
"In
the premises, the plaintiff is liable to the defendant for payment of
a sum of R3,675,064.42 plus interest at the rate
of prime plus 2%
which interest has accrued to R7,213,352.02 as at 31 January 2016 and
thus an interest equivalent to the capital
of R675,064.00 payable
from the date of demand until date of payment, both dates inclusive.”
[14]
Counterclaim 9 is in respect of interest payable as a result of late
payment of fees for the supply and installation of the
Supply Chain
Management Module in terms of Schedule 3. The defendant contemplates
replacing the amount of R1,739,742.99, wherever
it appears in this
counterclaim, with the amount of R3,430,474.01 and deleting the date
31 January 2010 and replacing it with the
date 31 January 2016.
[15]
Counterclaim 10 is a claim for payment of interest as a result of the
late payment of fees for the supply and installation
of Interfaces in
terms of Schedule 3. The purpose of this amendment is to delete the
amount of R657,234.58 wherever it appears
in this counterclaim and to
replace it with the sum of R1,296,185.00. The amended
counterclaim 10 will therefore read as
follows:
"In
the premises the plaintiff is liable to the defendant in the sum of
R1,296, 185.00 plus interest
at the rate
of prime plus 2% from 31 January 2010 to date of final payment both
dates inclusive.“
[16]
In respect of counterclaim 11, which is also a claim for payment of
interest as a result of late payment of Annual Licence
and Support
Fees in accordance with Schedule 1 for the period 1 December 2007 to
30 November 2008, the defendant contemplates amending
the said claim
by deleting the amount R125,790.78 and the date 31 January 2010
wherever they appear in this counterclaim and replacing
them
respectively with the amount R248,150.96 and the date 31 January
2016.
[17]
The original counterclaim 12 is also a claim for payment of interest
resulting from the late payment of Annual Licence and
Support Fees in
respect of Schedule 2 for the period 1 January 2008 to 31 December
2008. The purpose of the amendment in respect
of counterclaim 12 is
to delete both the amount R185,726.82 and the date 31 December 2008
and to replace them respectively with
the amount R366,398.14 and the
date 31 December 2016.
[18]
Counterclaim 13 is also the same as claim 12 save that the fees
payable were in respect of Schedule 3 and in respect of the
original
claim 13 the fees were for the period 14 May 2004 to 13 May 2005.
With regards to this counterclaim, the defendant applies
for leave to
amend it by deleting the date 13 May 2005 and replacing it with 13
May 2016 and by furthermore deleting the amount
R2,011,704.94 and
replacing it with the amount R3,969,556.86, with the result that the
interest payable will be reckoned from 14
May 2004 until 13 May 2016.
[19]
Counterclaims 14, 15, 16, 17, 18, 19, 20, 21 and 22 are the same as
counterclaim 13 except for the following crucial differences:
19.1.
in
respect of counterclaim 14 the original amount of R1,874,949.94 is
deleted and replaced with the sum of R3,699,699.88 and by
the
insertion of the words “
calculated from
14 May 2005 until 13 May 2016”;
19.2.
in
respect of counterclaim 15 the purpose of the amendment is to delete
the amount R973,763.17 and the date 31 January 2010 and
replacing
them respectively with the amount R1,924,458.86 and the date 31
January 2016;
19.3.
in
respect of counterclaim 16, which originally was for the period 14
May 2007 to 13 May 2008, the intention is to replace the date
13 May
2008 with the date 13 May 2016 and by inserting the following
sentence after 13 May 2016:
"The VAT
exclusive of the capital amount is R7,496, 128.18."
and finally to delete the
amount of R1,916,721.07 and replacing it with R8,511,078.52 and by
inserting the sentence:
"The capital
amount on which interest is charged is R7,496, 125.72';·
19.4.
in
respect of counterclaim 17, in which the original counterclaim was
for the period 14 May 2008 to 13 May 2009 the purpose of the
amendment is to extend the period from 14 May 2008 and by deleting 13
May 2009 to extend the period to 13 May 2016; to insert the
following
sentence:
"The VAT
exclusive of the capital amount is R8,475,241.25"
by deleting the amount of
R2,928,179.14 and replacing it with the amount of R15,181,102.26; by
inserting the following words:
"calculated from
13 May 2016';·
19.5.
in
respect of counterclaim 18, in which the original counterclaim was in
respect of Schedule 1 for the period 1 December 2008
to 13
November 2009, the purpose of the amendment is to replace the date 13
November 2009 with the date 13 November 2016; by inserting:
"The VAT
exclusive of the capital amount is R1,095,375.39 after 30 November
2009"
and by deleting the
amount R221,654.28 and replacing it with the amount
R1,652,674.61 and finally by the insertion of the
words:
''calculated from 13
November 2009 until 1 December 2016"
The effect of the
amendment will be that the said counterclaim 18 will, in addition,
read as follows:
"In the premises
the plaintiff is liable to the defendant in the sum of
R1,095,375.39';·
19.6.
in
respect of counterclaim 19 which in its original form was for fees in
respect of Schedule 2 and for the period 1 January 2009
to 31
December 2009 the amendment applied for is for the deletion of the
date 31 December 2009 wherever it appears in this counterclaim
and to
replace it with the date 31 December 2016; to insert the following
words after 31 December 2016:
"The VAT
exclusive of the capital amount is R1,095,37539”;
And by deleting the
amount R359,291.39 wherever it appears in this counterclaim and
replacing it with the amount R2,891,704.72 wherever
it appears in the
said counterclaim and by inserting:
"calculated from
31 December 2009 until 31 December 2016.
"
Part of the counterclaim
will therefore read as follows:
"In the premises
the plaintiff is liable to the defendant in the sum of
R1,967,349.94';·
19.7.
the
fees in counterclaim 20 were in respect of Schedule 3 and were for
the period 14 May 2009 to 13 May 2010. The defendant seeks
to amend
this counterclaim so that it reflects 13 May 2016 instead of 13 May
2010 wherever these dates appear in the said
counterclaim; by
the introduction of the following paragraph in paragraph 203 of the
counterclaim:
''in terms of the
licence agreement and annual licence and support fee for the schedule
3 is payable on 14 May each year in the
present case the relevant
period is between 14 May 2009 and 13 May 2016."
Finally the amendment
that is sought here is to delete the amount of R1,020,999.71 and to
replace it with the amount of R40,123,272.62;
19.8.
In
respect of counterclaim 21 which originally was for the period 1
December 2009 to 30 November 201O the purpose of the intended
amendment is to:
1.
delete the date 30 November 2010 and to replace it with
the date 30 November 2016;
2.
to amend paragraph 208 so that it reads as follows:
"In
terms of the licence agreement and annual licence and support fees
for schedule 1 is payable on December of each year,
in the present
case the relevant period is between 1December 2009 and 30 November
2016';·
3.
by deleting the amount R41,696.00 and replacing it
with the following amount R4,580,592.49;
4.
by inserting certain words outlined in the table set out
in the amendment; and
5.
lastly, by the addition at paragraph 212, of the
following words:
"In
the premises the plaintiff is liable to the defendant in the sum of
R4,580,592.45"
and
finally by replacing the year 2010 with the year 2016;
19.9.
In
respect of counterclaim 22 which originally was for the period
commencing on 1 January 2010 to 31 December 2010, the purpose
of the
amendment is to delete the date of 31 December 2010 and to replace it
with the date 31 December 2016; to delete the amount
of R36,105.98
and to replace it with the amount R?,961,910.33 and by inserting
certain words and finally by amending paragraph
217 of the said
counterclaim so that it reads as follows:
''ln the premises the
plaintiff is liable to the defendant in the sum of R7,961,910.33”;,
and finally by deleting the date 31 January
2010 and to replace it with the date 31 January 2016.
[20]
There are several other amendments sought by the defendant. Some of
these are in respect of the dates on which original service
fees were
to be paid were extended, mostly to 31 December 2016, and others, are
in respect of the amounts occasioned by the fees
that were supposed
to be paid, beyond 6 October 2008, the cancellation date.
[21]
I now turn to deal with the specific objections raised by the
plaintiff against the defendant's contemplated amendments.
THE
PROPOSED AMENDMENTS CONSIST OF CLAIMS THAT HAVE BEEN EXTINGUISHED
BY PRESCRIPTION
The
plaintiff has raised prescription as a ground of objection against
the contemplated amendment. It is contended by the plaintiff
that the
contemplated agreements are predicated on the enforcement of the
aforementioned agreements; that claims 4, 5, 6 and 8
arise from the
abovementioned two agreements; claims 9 and 1O arise from the Project
Agreement; claims 11 to 21 are all based on
the Licence Agreement
whereas claim 23 is based on an unsigned Project Agreement. Each of
these claims constitute, on its own,
a separate claim all arising
from the same root, but more importantly, different periods when they
are due and enforceable but
all of them with a different mathematical
calculation applicable to them. Each of the claims for payment is
based on a separate
cause of action with its own accompanying period
of prescription. This description of the periods of prescription is
crucial. It
was contended by counsel for the plaintiff the fact that
in practice the amounts are claimed in a globular amount cannot
deprive
the debtor from asserting that parts of the amount are
prescribed. According to Rudman it is deceptive for the defendant to
describe
the new counterclaim as being one for arrear annual fees or
as claims founded on unjust enrichment. He contends furthermore that
it is also misleading to have any regard to the plaintiff's plea in
determining whether the contemplated amendments should be allowed.
[22]
In particular its notice of objection, the plaintiff states that the
claims which the defendant seeks to recover in claims
4, 5 and 6
arose on the anniversary dates set out therein namely 14 May 2009, 14
May 2010, 14 May 2011 and 14 May 2012 in respect
of modules 3 and 1
December 2009, 1 December 2010 and 1 December 2011 in respect of
module 1 and 1 January 2010, 1 January 2011,
1 January 2012 and 1
January 2013, have become extinguished by prescription. The remaining
claim for claims 4, 5 and 6 namely 14
May 2013, 14 May 2014 and 14
May 2015 and in respect of modules 3, 1 December 2013, 1 December
2014 and 1 December 2015 in respect
of claim 5 for module 1 and 1
January 2014, 1 January 2015 and 1 January 2016 in respect of claim 6
for module 2 are by reason
of the termination of a contract not
recoverable as licence fees in terms of Schedule 1 and Schedule 2 as
the duration period was
a period stated to be purportedly until
terminated as provided for in the respective Schedules. The
termination of the contract
destroyed the obligation to pay licence
fees. Following upon the termination there could be no continuation
of the obligation to
pay licence fees. The defendant is only entitled
to a damages claim properly assessed in accordance with law which is
in any event
not pleaded.
THE
DEFENDANT'S PROPOSED COUNTERCLAIMS ARE BASED ON A CANCELLED AGREEMENT
[23]
It is common cause between the parties that the agreement between the
parties has been terminated. This is how the defendant
pleaded
termination of the parties' agreement in its plea:
"83. On 10
September 2008 the defendant informed the plaintiff in writing that
it was in breach
of the agreement and
called upon it to remedy the breach within 14(fourteen) days failing
which it will terminate the agreement
A copy of the said letter is
annexed hereto marked "MS113.
84. The plaintiff
failed, refused and/or neglected to take steps to comply with the
breach and the was lawfully terminated on or
about 6 October 2008. A
copy of the said letter is annexed hereto marked"MS114.
85. ALTERNATIVELY, the
abovementioned conduct of the plaintiff amounts to repudiation of the
contract. The defendant hereby accepts
the repudiation of by the
plaintiff and accordingly cancels the agreement.
"
In
essence when a contract has lawfully been terminated neither party
may lawfully claim from the other of them performance based
on the
terms of the terminated agreement save in respect of rights that have
already accrued. When an agreement is terminated the
primary rights
and obligations flowing from such an agreement are immediately
terminated, so that no party is obliged to perform
and no party is
entitled to claim performance from the other side based on the
terminated agreement. Cancellation of an agreement
is an
unequivocal intimation by one party to the other party that he puts
to a stop further performance of the contract. Thereby
he puts to a
stop his own future performance and also the future performance by
the other party, which he cannot thereafter be
required to accept.
The defendant would not be entitled to claim from the plaintiff any
service fee for Licence and Implementation
on the basis of an
agreement that has been cancelled. In the light of the defendant
contention that the agreement has been
lawfully cancelled, the
defendant may not claim for licence fees or implementation fees in
terms of the contract. The defendant
ought seek for damages based
either on delict or contract. Accordingly an amendment may not be
granted if it will amount to an
attempt to enforce rights or
obligations from a non-existent agreement.
[24]
Equally an amendment of a claim may not be granted if it will be met
by a plea of prescription. This principle was demonstrated
by the
Court in De Klerk and Another v. Du Plessis and Others 1995(2) SA 40
(TPD) which dealt with an exception. In the said authority
the Court
had the following to say at p.431-J:
''An
amendment which would render a pleading excipiable should not be
allowed, and that whether this was in fact so was a matter
of law
which should be decided by the Court hearing the application for the
amendment. It follows that where there are conflicting
decisions in
different divisions on the point of law it would be incorrect to
allow the amendment on the basis that it was eminently
arguable."
Equally
an amendment that may be met with a plea of prescription should not
be allowed.
THERE
HAS BEEN AN INORDINATE DELAY IN BRINGING THE CONTEMPLATED AMENDMENTS
[25]
The plaintiff complains that there was a delay on the part of the
defendant in bringing an application for amendment. It is
contended
by counsel for the plaintiff that although a delay on its own is not
the sole determining factor, it is nevertheless
one of the factors
that a Court is entitled to take into consideration when it decides
whether or not an application for amendment
should be granted and in
particular the timing of the application. The plaintiff opines that,
especially if regard is had to the
timing of the application to
amend, if granted, the application will deprive the plaintiff of the
opportunity to canvass the proposed
amendments. He contends
furthermore that granting the amendment may result in time-wasting
because witnesses may have to be recalled
or new witnesses may have
to be called to testify.
[26]
I am not certain as to whether the plaintiff raises this objection
with some measure of certitude, considering firstly that
a party that
applies for an amendment does not have to explain any such delay in
launching such an application and secondly considering
the fact that
such an application may be brought before or after close of the
pleadings. Rule 28(8) authorises a Court to allow
an amendment during
the hearing at any stage before judgment is given upon such terms as
to it deemed met. The question seems to
be whether or not the other
party will be prejudiced by a delayed application for amendment.
[27]
The objection by the plaintiff is taken against the background that
an application for amendment may be brought before or after
the close
of the pleadings. Rule 28(8) authorises a Court to allow an amendment
during a hearing at any stage before judgment is
given upon such
terms as to it deemed met. In Krogman v. Van Reenen 1926 OPD at 194
the Court adopted the approach that the litigant
asking for an
amendment is in fact craving an indulgence and he must offer some
explanation as to why he requires the amendment
and more especially
if the application for an amendment is not timeously made some
reasonably satisfactorily account must be given
for the delay. This
is how De Villiers JP put it:
"Even
if the party applying for an amendment tenders to pay wasted costs
and to consent to a postponement and to other conditions
and terms
which will avoid all direct prejudice to the other party as regards
to his prospects of succeeding in the action, that
will not entitle
him to claim an amendment as of right, but he will have to show
reasonable grounds,· he must show, for
instance, that the
matter involved in the amendment is of such importance to justify him
in putting the court and the other party
to manifold inconveniencies
of a postponement and that the necessity for an amendment has through
some reasonable cause, even if
it be only a bona fide mistake, which
would, I take it, be the maximum reasonable cause admissible in this
connexion.
"
[28]
In this matter there is no explanation as to why it is only now that
the defendant seeks to bring such an amendment more than
5 years
after it had lodged its original counterclaims and a little less than
eight (8) years after the agreement was terminated.
When there has
been a delay in bringing an application for amendment, such an
application should be refused if its granting would
cause great
inconvenience to the opposite party and a long delay in bringing the
matter to finality. The duty is on the plaintiff
to prove such great
inconvenience. I am satisfied that the plaintiff has discharged the
onus it carries on this aspect.
[29]
The contention by counsel for the defendant that the new claims
represent fresh quantifications of the original claims and,
in
addition, of further items of damages arising from the same cause of
action is, in my view, simplistic. The new claims do not
arise from
the cause of action on which the original claims are based. Both the
old claims and the new claims do not arise from
a single source. The
new claims would be met by a plea of prescription. To allow the
introduction of a new cause of action which
would have the effect of
defeating the time within which an action is to be brought should be
refused if it will cause prejudice
to the other side. See in this
regard Trans African Insurance Co Ltd v Maluleke 1956(2) SA p. 273.
The issues that the defendant
wishes to introduce by these amendments
have not been canvassed at the trial. The introduction the amendments
will inevitably cause
the plaintiff to recall its witnesses again, a
costly exercise.
[30]
In my view Mr Prabaharan's contention that the amendments consist
of triable issues which cannot be resolved at a Rule
28 stage lacks
merit, if regard is had to the fact that the parties may be sent back
to prepare for another battle on the same
points of prescription and
cancellation of the agreement at a later stage. By this contention Mr
Prahabaran is in fact saying that
the plaintiff should not raise his
objections to the intended amendment now but should rather allow them
and wait for the plaintiff
to plead accordingly thereafter. Nothing
prevents the plaintiff from raising the objections at this stage. In
fact in De Klerk
and Another v. Du Plessis and Others
supra
the
court had the following to say at p 431-J:
"Whether
a pleading would or would not become excipiable is a matter of law
which should be decided by the court hearing the
application for
amendment. It would be incorrect, in my view, to hold that it is
arguable that the amendment would not render the
pleading excipiable,
allow it, and send the parties away to prepare for another battle on
exception on the same point.
"
My
understanding of the above paragraph is that where a court deals with
an application for amendment and an objection to the amendment
is
raised, the court should hear the objection and decide whether to
uphold or dismiss it. A court should not allow the amendment,
send
the parties back to prepare for battle, with the hope that the same
objection will be raised and dealt with at the pleading
stage.
[31]
The general approach of the courts in this country has always been to
allow amendments where this could be done without causing
prejudice
to the other party. In Moolman v. Estate Moolman and Another
1927 CPD
27
, Watermeyer J, as he then was, reflected this widely held view
when he remarked that:
"The
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide
or unless such
amendment would cause an injustice to the other side which cannot be
compensated by cost, or in other words unless
the parties cannot be
put back for the purposes of justice in the same position as they
were when the pleading which is sought
to be amended is filed
"
In
this division which, and at the time was called the Transvaal
Division, Wessels J adopted the same approach in the case of MacDuff
and Co. (in liquidation) v. Johannesburg Consolidated Investment Co.,
Ltd
1923 T.P.D. 309
when he stated as follows:
''My
practice has always been to give leave to amend unless I have been
satisfied that the party applying was acting ma/a fide,
so that by
his blunder he had done some injury to his opponent which could not
be compensated for by costs or otherwise."
And
he continued as follows at p.310:
''However
and neglectful or careless may have been the first omission and
however late the proposed amendment, the amendment should
be allowed
if it can be made without injustice to the other side,· there
is no justice if the other side can be compensated
by costs.
"
[32]
In the defendant's bundle of authorities was the case of Cordier v
Cordier 1984(4) SA 524 C. This was the case in which the
plaintiff
had sought leave to amend its pleadings but in which the defendant
had raised an objection against the amendment on a
ground, among
others, that the claim had prescribed. The court, finding that the
claim had indeed prescribed, took the view that
prescription might
not be the full answer to the plaintiff's claim. It stated that it
might be plausible for the plaintiff to prove
acknowledgement of
liability by the defendant or a waiver of the defence by the
defendant. The amendment was granted notwithstanding
the objection
based on prescription.
[33]
This, in my view, is for three reasons not a plausible approach.
Firstly, to say that it might be plausible for the plaintiff
to prove
acknowledgement of a liability by the defendant or waiver of the
defence is to involve the court in speculation. A litigant
must plead
his case specifically so that the other party knows the case it has
to meet. Secondly, the Court may not come to the
assistance of the
litigant, like in the case of Cordier, if he has not pleaded
acknowledgements by the defendant of liability or
waiver of the
defence. Thirdly and lastly, prescription may be raised at any stage
of the trial. A party does not have to wait
for the court first to
grant an amendment to the one party so that the other party should,
or with the hope that the other party
may, raise a special plea of
prescription at a later stage and the issue may only be adjudicated
upon only at that stage. The principle
that the court should have
followed was that an amendment that sought to introduce a claim which
had become prescribed should not
be allowed. I respectfully differ
from the approach of the court in Cordier v Cordier
supra.
In
my view, the court should not have ignored the objection that the new
claim sought to introduce a claim that had become prescribed,
no
matter what the other reasons were.
[34]
In so far as it concerns the instant matter, I am satisfied that the
plaintiff's objections against the contemplated amendments
are
commendable.
[35]
Accordingly:
[1] The applicant's
application for leave to amend its counterclaims is hereby dismissed
with costs, which costs shall include the
costs consequent upon the
employment of two counsel.
__________________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the applicant:
Adv. P Mokoena (SC)
Adv. E Mokutu
Instructed
by:
Attorneys
Counsel
for the respondent:
Adv. D Gordon (SC)
Adv. J Nxusani (SC)
Adv. HG Janse van
Rensburg
Instructed
by:
Attorneys
Date
Heard:
8 February - 4 March 2016
Date
of Judgment:
28 July 2016