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[2015] ZAGPPHC 28
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Standard Bank of South Africa Ltd v Gibhard (14239/2014) [2015] ZAGPPHC 28 (4 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 14239/2014
DATE:
4 JANUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LTD
............................................................
APPLICANT
and
JOHAN
GIBHARD
..................................................................................................................
RESPONDENT
JUDGMENT
KUBUSHI
J
[1]
In this application, the applicant, the plaintiff in the main action,
seeks an order for leave to amend its particulars of claim.
The
respondent, the defendant in the main case, has raised a point
in
limine
to the effect that the
application is not properly before court. According to the
respondent’s counsel, the applicant did
not follow the proper
procedure as is required in terms of uniform rule 28 (4).
[2]
The procedure for amendments of pleadings is regulated in terms of
uniform rule 28. The rule stipulates the following:
“
(1)
Any party desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings, shall
notify all
other parties of his/her intention to amend and shall furnish
particulars of the amendment.
(2)
The notice referred to in sub-rule (1) shall state that unless
written objection to the proposed amendment is delivered within
10
days of delivery of the notice, the amendment will be effected.
(3)
An objection to a proposed amendment shall clearly and concisely
state the grounds upon which the objection is founded.
(4)
If objection which complies with sub-rule (3) is delivered within the
period referred to in sub-rule (2), the party wishing
to amend may,
within 10 days lodge an application for leave to amend.
(5)
..."
[3]
What happened in this instance is that the applicant as required in
terms of uniform rule 28 (1), notified the respondent of
its
intention to amend its particulars of claim. The respondent within
the period stipulated in uniform rule 28 (2) delivered a
written
objection to the proposed amendment. The applicant thereafter,
instead of lodging an application for leave to amend as
is required
in terms of uniform rule 28 (4), proceeded to set the matter down for
hearing. It is on this basis that the respondent
has raised the point
in limine
contending
that the applicant has not complied with the provisions of sub-rule
(4) and as such the matter is not properly before
the court and
should be struck off the roll.
[4]
The applicant’s counsel concedes that there is no application
as required by sub-rule (4). He further submits that this
is just a
technical defence and since the respondent will not be prejudiced the
non-compliance should be condoned. According to
counsel, the
respondent will not be prejudiced because there is no request for a
postponement and the parties are prepared and
ready to argue the
application. The respondent has always known that the parties are to
argue the application and it will not be
in the interest of justice
to strike the matter from the roll, so the argument goes.
[5]
Uniform rule 28 provides for a two stage process whereby a party may
amend a pleading or document filed in terms of any proceedings.
The
first step envisaged by the rule is in terms of sub-rule (1). A party
wishing to amend a pleading must first notify the other
party of his
or her intention to amend. This is a process whereby the parties have
an opportunity to settle the matter between
them without having to
appear before court. The other party may agree to the amendment or
refuse. If an agreement is reached the
amendment is effected
accordingly. If there is no agreement, the party refusing the
amendment should object by delivering a written
objection which sets
out the grounds upon which such objection is grounded.
[6]
The second stage is triggered by the lodgement of the written
objection. Once the written objection is lodged, the party wishing
to
amend may approach the court by application for leave to amend. This
is a formal application, though not on affidavit, and should
be
lodged before the matter can be set down for hearing.
[7]
It
is trite that the procedure laid down by the rules of court should be
complied with. Where there is non-compliance with any rule,
the
uniform rules provides for the condonation of such non-compliance in
terms of uniform rule
27.
In
this instance, there is no application before
this
court in terms of uniform rule 28 (4). There is also no application
for leave to condone the non-compliance.
[8]
It is my view that this court is not competent to grant the applicant
leave to amend its particulars of claim when the applicant
has failed
to comply with the requirements of sub-rule (4).
Compliance
with subrule (4) should as a general rule be insisted upon, unless
there are circumstances which justify departure from
the sub-rule.
1
In
this instance there are no such circumstances. The application can,
therefore, not be heard.
[9]
On that basis the application ought to be struck off the roll. This
does not preclude the making of a subsequent application,
in proper
form, for the relief sought by the applicant.
[10]
Consequently the application is struck off the roll with costs.
EM
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCE:
HEARD
ON THE:
27
JANUARY 2015
DATE
OF JUDGMENT:
04
FEBRUARY 2015
FOR
APPLICANT:
ADV
C B SADLER instructed by LIEZEL DAVID ATTORNEYS
FOR
RESPONDENT:
ADV
T P KRUGER instructed by SHOEMAN & ASSOCUATES
1
Gouws
v Venter & Co
1961 (2) SA 329
[D & CLD] at 335A - B