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[2015] ZAGPPHC 134
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Tjeka Training Matters (Pty) Ltd v A S Nonyane and Associates Inc (11151/2011) [2015] ZAGPPHC 134 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG HIGH
COURT DIVSION, PRETORIA
Case Number:
11151/2011
Date: 5 March
2015
In the matter
between:
TJEKA
TRAINING MATTERS (PTY)
LTD
..............................................................
Applicant/Plaintiff
and
A
S NONYANE AND ASSOCIATES
INC
...........................................................
Respondent/Defendant
JUDGMENT
MNGQIBISA-THUSI,
J:
[1] The applicant
(plaintiff in the main action) is seeking leave of this court to
amend its declaration to a claim in which it
is seeking payment in an
amount of R1 143 925.36, for services rendered.
[2]
In terms of the applicant’s declaration, the applicant contends
that it and the respondent (acting as project manager
for the Free
State Department of Police, Roads and Transport) (“the
Department”), concluded a service level agreement
(“the
agreement”) on 19 March 2010 in terms of which the applicant
would render training services on behalf of the
respondent in the
Xhariep district. In terms of the agreement, the training was for
areas listed in the agreement, which fell within
the Xhariep
district. The agreement also provided,
inter
alia,
that:
2.1 the respondent
would pay the applicant, for services rendered, within 7 days of
receiving payment from the Department (clause
4.3.1);
2.2 no
representations, warranties, undertakings or promises, of whatever
nature which may have been made by any of the parties,
their agents
or employees shall be binding or enforceable by the other party
against the other (clause 7.4);
2.3 no variation,
amendment or addition to the agreement shall be valid unless the same
has been reduced in writing and signed by
or on behalf of the
parties(clause 7.5).
2.4 the agreement
would commence on 22 February 2010 irrespective of the date on which
the agreement was signed (clause 8.1);
[3] The applicant
further avers that on 26 October 2010 the parties concluded an
addendum to the agreement in terms of which the
Xhariep agreement was
extended for a further period and that the agreement was extended to
also include areas within the Motheo
district. The applicant further
avers that during November 2010 the respondent terminated the
agreement on the ground of alleged
budget constraints.
[4] Furthermore, the
applicant avers that on 26 November 2010 it submitted invoices
(numbers IN002819 and IN002892) to the respondent.
The two invoices
were attached to the applicant’s declaration as ‘D’
and ‘E’. As appears from the
attached invoices, annexure
‘D’ (for R 583 005.89) relates to services rendered under
the Xhariep District training
project; and annexure ‘E’
(for R 560 919.47), relates to the Motheo District Training project.
[5] It is common
cause that on 25 October 2013, the respondent received payment from
the Department.
[6] In its summons
served on the respondent on 01 March 2011, the applicant seeks
payment of a total amount of R1 143 925.36 made
up of R 583 005.89,
for services rendered in terms of the Xhariep project and R 560
919.47 for the Motheo project.
[7] On 5 September
2011, the respondent filed its plea. In its plea, the respondent
denies that a valid agreement was concluded
with the applicant based
on the addendum. The basis of the respondent's denial is that the
agreement contains a non-variation clause
(clause 7.5) which provides
that no variation, amendment or addition to the agreement shall be
valid unless reduced to writing
and signed by or on behalf of the
parties to the agreement. As appears from the addendum, attached to
the applicant’s declaration
and marked “B”, only
the signature of the applicant’s representative appears. The
respondent contends that since
it did not sign the addendum, no valid
agreement was concluded in relation to the Motheo project.
[8] On 23 April 2014
applicant served on the respondent’s attorneys a notice in
terms of Rule 28 (1) of its intention to amend
its declaration, in
particular, paragraphs 3 to 17. In brief the salient features of the
proposed amendments are as follows:
8.1 that on 26
October 2010 the parties concluded a part-written part-oral agreement
in terms of which the applicant was subcontracted
to provide training
in the Motheo District;
8.2 that the
training would be provided to the listed areas for an amount per
course limited to R 45 625.00 per contractor;
8.3 that defendant
would pay the applicant within seven (7) days of raising an invoice,
subject to the Department having paid the
defendant;
8.4 that the
applicant duly performed its obligations in terms of the agreement;
8.5 that on or about
26 November 2010 the applicant submitted an invoice to the respondent
in the amount of R 560 919.47;
8.6 that despite the
respondent having received money from the Department on 01 July 2013,
the respondent has failed to pay the
amount due;
8.7
consequent to the above the applicant claims payment of the amount of
R 560 919.47 plus interest at 15.5% per annum a
tempore
morae
to
date of final payment and costs.
[9] The defendant
objects to the proposed amendments on the ground that the proposed
claim has prescribed and that the proposed
amendments are not bona
fide.
[10] It is the
respondent’s contention that with the proposed amendment the
applicant seeks to introduce a new cause of action
based on a
part-oral part-written agreement concluded on 26 October 2010.
Furthermore, it was argued on behalf of the respondent
that the
applicant in its unamended declaration had placed reliance on the
agreement which was concluded on 19 March 2010, and
allegedly varied
through an addendum on 26 October 2010, a cause of action different
from the one sought to be introduced through
the proposed amendment.
Counsel further argued that the new cause of action sought to be
introduced through the amendment is based
on a completely separate
agreement, which agreement’s prescription period began to run
on 26 October 2010, terminating on
26 October 2013.
[11]
A court has a discretion to allow a party to amend its pleadings at
any time before judgment as the primary object of allowing
an
amendment is to obtain a proper ventilation of the dispute between
the parties.
Gralio
(Pty) Ltd v D E Claasen (Pty) Ltd
1980
(1) SA 816
(A). In
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
the court held at para [9] that:
“
The
principles governing the granting or refusal of an amendment have
been set out in a number of cases. There is a useful collection
of
these cases and the governing principles in
Commercial
Union Assurance Co Ltd v Waywark NO.
The
practical rule that emerges from these cases is that amendments will
always be allowed unless the amendment is
mala
fide
(made
in bad faith) or unless the amendment will cause an injustice to the
other side which cannot be cured by an appropriate order
costs, or
‘unless the parties cannot be put back for the purposes of
justice in the same position as they were when the pleading
which it
is sought to amend was filed.
See
also
Moolman v
Estate Moolman & Another
1927
CPD 27
, at 29.
[12] The determining
factor on whether or not to allow an amendment is prejudice. If when
the proposed amendment is considered,
taking into account the
circumstances of the case and the propose amendment does not
prejudice the respondent that cannot be cured
by a cost order, the
amendment will invariably be allowed.
[13] In the original
declaration, the applicant’s claim is for payment on both the
Xhariep and the Motheo projects. In terms
of the proposed amendment,
the applicant seeks payment only with regard to the Motheo project
and for the same amount. Nothing
turns on the fact that, although the
applicant originally relied on the addendum (annexure "B”)
with regard to the claim
pertaining to the Motheo project, it now
relies on a partly oral partly written agreement. The applicant still
bears the onus of
proving the existence of the partly oral partly
written agreement on which it relies. Furthermore, I am of the view
that the respondent
will not suffer any prejudice if the amendment is
allowed since right from the time the summons were issued, the
respondent was
aware that the applicant also seeks payment for
services rendered in the Motheo project.
[14] The respondent
is also opposing the amendment on the ground that the applicant’s
claim as set out in the proposed amended
declaration has prescribed.
It is the respondent’s contention that the proposed amendment
as it stands implies that the agreement
on which the applicant relies
was concluded on 26 October 2010 and therefore the three-year
prescription period has elapsed. It
is the applicant’s
contention that the period of prescription has not expired as, in
terms of the agreement, payment to the
applicant was subject to the
department paying the respondent, who in turn had to pay the
applicant within seven days of payment
by the Department. Since the
respondent only received money from the Department on 25 October
2013, the period of prescription
has not expired.
[15]
In
Stroud v Steel
Engineering Co Ltd and Another
1996(4)
SA 1139(WLD) the court held at 1142C-F that:
“
There
remains the contention that because the claim is prescribed, it
should not be allowed. I accept that the Court normally would
not
permit an allegation which has no possibility of advancing the
situation of a litigant and can at best serve as a basis for
the need
to hear evidence which leads nowhere. Accordingly, it would make no
sense to permit a claim which is known to have prescribed.
But if the
supervening of prescription is not common cause, the application for
amendment is normally not the proper place to attempt
to have that
issue decided. Technically speaking, in fact, prescription is not an
issue until it has been pleaded. I say ‘normally’
because
there may be special cases, for example where only legal
interpretation makes the difference to facts which are common
cause.
However, except in such special situations, once prescription is not
common cause, the plaintiff should not be deprived
of his chance to
put his claim before the Court because of apparent probabilities at
the time when amendment is considered. Considerations
of
effectiveness and fairness confirm that propriety. The present
defendant ought to raise its proposed defence (prescription)
in the
same way that it would raise any other defence which becomes
appropriate after an amendment is granted.”
[16]
There is a dispute as to whether the Motheo project debt has
prescribed. In the light of what is stated in the
Stroud
matter
(supra), I am of the view that the applicant cannot be denied an
amendment based on an issue which still has to be decided
upon during
trial. I am therefore of the view that the applicant has shown
sufficient cause for its application to amend its declaration
to be
allowed.
[17] On the question
of costs, I am of the view that the respondent did not unreasonably
oppose the application to amend. Since
the applicant is the party
seeking an indulgence, I am of the view that it should bear the costs
occasioned by the amendment.
[18] Accordingly the
following order is made:
18.1 The applicant
is granted leave to amend its particulars of claim in accordance with
its Notice of Intention to Amend in terms
of Rule 28(1) dated 24
October 2013.
18.2 The applicant
to pay the costs occasioned by the amendment.
MNGQIBISA-THUSI J
Judge of the Gauteng
High Court Division
Appearances:
For Applicant: Adv
Mulligan
Instructed by:
Potgieter Marais attorneys
For Respondent: Adv
Nowitz
Instructed by:
Nochumsohn & Teper Attorneys