About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 36
|
|
De Klerk v Holzhyzen and Another (A452/2014) [2015] ZAGPPHC 36 (30 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number:
A452/2014
Date: 30 January
2015
Not reportable
Not of interest to
other judges
In the matter
between:
CONSTANT DE
KLERK
.......................................................................
APPELLANT
and
HENRI
HOLZHYZEN
...................................................................
1
st
RESPONDENT
SA SECURITY DOGS
CC t/a K9
SECURITY
SOLUTIONS
...............................................................
2
nd
RESPONDENT
Coram:
FABRICIUS
J et HUGHES J
JUDGMENT
Delivered on: 29
January 2015
Heard on: 30 January
2015
HUGHES J
[1] This is an
appeal against the judgment of the magistrate, B MATLHAPE, of the
district Wonderboom in Pretoria. The magistrate
dismissed the
applicant’s application to amend his particulars of claim on 2
June 2014.
[2] I do not propose
to deal with the facts of the case as this has been dealt with in the
lower courts judgment. However, I will
set out herein after the
sequence of event pertaining to the filing and serving of the
document relevant to the issue at hand.
[3] Summons was
issued by the appellant on 7 November 2013 and the respondents filed
their notice of intention to oppose on 8 January
2014. The appellant
caused a number of amendments to be served upon the respondent’s
which were later withdrawn. The amendment
at issue is that dated 20
February 2014 which was served upon the respondents on 24 February
2014.
[4] Incidentally the
action against the second respondent was withdrawn on 23 February
2014. Of importance is the fact that the
first respondent served a
notice in terms of Rule 55A (3) objecting to the amendment at issue
on 7 March 2014.
[5] When the
application came before the magistrate for her determination whether
to allow the amendment or not, she ruled as follows:
“
The
court is of the opinion that the Applicant cannot succeed in his
application to amend in that he seeks not only to introduce
a new
cause of action, but one which is bad in law. Furthermore, Applicant
does not state in full particularity, what prejudice
he will suffer
should the amendment not be allowed. The court, after weighing
prejudice against both parties, is of the opinion
that the only party
who will suffer prejudice if the amendment are (sic) allowed is the
Respondent Order
It is ordered
that Applicant’s application for amendment is dismissed.”
[6] At the hearing
of this appeal the respondent raised the issue of the appellant
having not filed security. However, a concession
was forth coming
from the respondent after it transpired that the appellant had
tendered security. In the circumstances the issue
of security falls
away.
[7]
A
point in limine
was
raised by the respondent that the order granted by the magistrate was
not appealable as it was an interlocutory order. On the
other hand
the appellant submitted that the order if fact amounted to a final
order.
[8]
The respondent argued that the appellant is allowed room to pursue
the amendment in a different manner in order to attain the
amendment.
The argument of the respondent does not make sense since in the
circumstances of this matter the order is indeed a final
order as
once the decision is given to grant or not to grant the amendment
that is the end of the application to amend on the basis
advanced by
the appellant. One is not able to move another application to amend
on the same fact and on the same basis as it has
already been
adjudicated upon. Thus only way forward would be to appeal and that
is indicative of it being final. See
Swartz
v Van der Walt t/a Sentraten
1998 (1) SA 53
(W).
The
point in limine
must
fail.
[9] Turning to deal
with whether the amendment should have been granted or not it is
prudent to quote Rule 55A(4):
“
If
an objection which complies with subrule (3) is delivered within the
period referred to in subrule (2), the party wishing to
amend may,
within 10 days, lodge an application for leave to amend.”
Rule
55 A (4) does not persist that an application to amend should be
accompanied by an affidavit. I quote the commentary from
Jones
and Buckle, The Civil Practice of the Magistrates Courts In South
Africa Volume II The Rules,
Subrule
(4): Lodge an application to amend”-
“
It
has been held that these words, as they appear in Uniform Rules of
Court 28(4), could not in the context of an amendment, which
by
nature was an interlocutory application, denote an intention on the
part of the legislator that the formal notice of motion
procedure
supported by an affidavit as contemplated in the Uniform Rules of
Court 6 should be adopted. Consequently, such an application
in the
High Court practice must be brought on notice and not on notice of
motion. It is submitted that, in view of the provisions
of Rule
55(4)(a), an application for leave to amend in terms of this subrule
must be brought on notice, supported by such affidavits
as
the case mav require
.
and set down with appropriate
notice”.
[My
emphasis underlined]. See
Swartz
v Van der Walt t/a Sentraten 1998 (I) SA 53 (W) at 57C.
[10] In the
circumstances the magistrate had a discretion to grant the amendment
had she acted judicially and as stated in the previous
paragraph
there was no need to refuse the application to amend due to the fact
that it was not accompanied by an affidavit.
[11] Regarding the
introduction of a new cause of action I am at idem with the
submissions advanced by Advocate Kruger as set out
in his head of
argument which are incorporated in this judgment.
[12] Dealing with
the issue of costs the appellant sought that there be no limitation
of fees in respect of their costs. I do not
see this request as
unreasonable taking cognisance of the circumstances of this case and
the fact that the matter had to be heard
by this court.
[13] In the result
the following order is made:
[13.1] The appeal is
upheld with costs.
[13.2] The order of
the magistrate dated 2 June 2014 is set aside and is replaced with
the following order:
“
The
applicant’s amendment dated 20 February 2014 is duly granted
with costs.”
W. Hughes
Judge of the
High Court
I agree and it is so
ordered
H. J. Fabricius
Judge of the High
Court
Attorney for the
Appellant:
VAN DER MERWE ATT
224 Sefako Makgotha
Drive
Sinoville
PRETORIA
Tel: 012 543 3173
Ref: V 593/COK
Attorney for the
Respondent:
JACO COETZEE ATT
c/o
HACK
STUPEL & ROSS ATTORNEYS
264 Emily Hobhouse
Street
PRETORIA
Tel: 012
Ref: Vd Schyff /
H1/7