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[2015] ZAGPPHC 352
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Standard Bank of South Africa Limited v Tenelle Trading CC and Another (56329/2013) [2015] ZAGPPHC 352 (21 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 56329/2013
DATE: 21 MAY 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
THE STANDARD BANK OF
SOUTH AFRICA
LIMITED
...............................................................
Applicant
And
TENELLE TRADING
CC
..........................................................................................................
1ST
Respondent
AMANDA LYNELLE
KRUGER
.............................................................................................
2ND
Respondent
JUDGMENT
KGANYAGO, AJ
[1] The applicant
seeks to amend its particulars of claim. The second respondent is
objecting to the proposed amendment.
[2] The second
respondent objection is solely based on paragraph 7.2 of the proposed
amendment.
[3] The original
paragraph 7.8 of the particulars of claim which the applicant’s
intends to amend reads as follows:
“
Insofar
as it may be found that any of the suspensive conditions in Annexure
“A ” have not been fulfilled the plaintiffpleads
that the
suspensive conditions have been included exclusively for the benefit
of the plaintiff and insofar as it may be necessary
the plaintiff
have waived compliance with the suspensive conditions. ”
[4] The proposed
amendmend to paragraph 7.8 read as follows:-
"
7.2. All
suspensive conditions to which the agreement may have been subject
were:-
7.2.1. timeously
fulfilled; and/or
7.2.2. timeously
waived on the basis that such condition were exclusively for the
benefit of the plaintiff. ”
[5] The second
respondent’s objection is based on the contention that the
proposed amendment renders the particulars of claim
excipiable, or
fails to remove an existing basis for exception from the
pre-amendment particulars of claim. The second respondent
further
contends that the proposed amendment is vague and embarrassing.
[6] It is trite that
an amendment will not be allowed in circumstances which cause the
other party such prejudice which cannot be
cured by a costs order or
a postponement.
[7]
In
Affordable
Medicines Trust v Minister of Health
2006
(3)
247(CC)
at paragraph 9 the court stated:
“
The
principle 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
Waymark No. The
practical rule that emerges from these cases is that amendments will
always be allowed unless the amendment is malafide
(made in badfaith)
or unless the amendment will cause an injustice to the other side
which cannot be cured by an appropriate order
for 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. The principles apply equally to a notice of motion.
The question in each case, therefore,
is, what do the interest of
justice demand. ”
[8] In my view
paragraph 7.8 in the original particulars of claim was not clearly
drafted as it seems to lack some particulars.
The proposed amendment
in my view seems to have simplified issues and gave more clarity. The
second respondent was able to plead
to paragraph 7.8 in the original
particulars of claim in a detailed manner despite the deficiencies
which were contained in it.
I therefore don’t see any reason
why they will not be able to plead on the one that has been clarified
and simplified.
[9] Generally an
amendment which would render the relevant pleading excipiable should
not be granted. Whether the pleadings are
excipiable, it is trite
that the excipients have to show that the pleading is excipiable on
every interpretation that can be reasonably
be attached to it. See
First National Bank of Southern Africa v Perry No and Others
2001 (3)
SA 960
SCA.
[10] Paragraph 7.2
which is intended to amend the original paragraph 7.8, cannot be read
in isolation to determine whether the applicant’s
pleadings are
excipiable or not. In paragraph 8 supra, I have already held that the
proposed amendment seems to be giving more
clarity than its
predecessor.
[11] Under the
circumstances in my view the applicant’s pleadings as they
stand, will enable the second respondent to plead
to the applicant’s
proposed amendment to the particulars of claim. I am therefore
satisfied that the applicant’s proposed
amendment should be
granted.
[12] Rule 28(9) of
the Uniform Rules provides that a party giving notice of amendment in
terms of subrule (1) shall unless the court
otherwise directs, be
liable for the costs thereby occasioned to any other party. Generally
if a party objects unreasonably to
a proposed amendment, it may be
ordered to pay the costs of the application.
[13] It is trite
that awarding of costs is within the discretion of the court. The
court must exercise its discretion judicially
upon a consideration of
the relevant facts of each case. The general rule is that costs
follow the event.
[14] In applying my
discretion, I could not find any ground to arrive at the conclusion
that the second was unreasonable in objecting
to the applicant’s
proposed amendment.
[15] In the result I
make the following order:
15.1. The applicant
is granted leave to amend its particulars of claim as set out in the
applicant’s notice in terms of rule
28 delivered on the 10th
October 2014.
15.2. The applicant
must effect the amendment by delivery of the amended pages within
10(ten) days from date of this order.
15.3. The applicant
to pay the second respondent’s costs occasioned by the
amendment.
M.F.GANYAGO
ACTING JUDGE OF
THE GAUTENG DIVISION, PRETORIA
Heard
on
:
29th ARPIL 2015
For
the Applicant:
Adv
JE Ferreira
Instructed
by
:
Vezi & De Beer Inc
For
the Respondents
:
Adv S.G Gouws
Instructed
by
:
Botha Massyn & Thobejane Associated Attorneys
Date
of Judgment
: