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[2015] ZAGPPHC 945
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Madison Park Properties 66 (Pty) Ltd v Top Star Bricks CC and Others (60867/2013) [2015] ZAGPPHC 945 (28 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 60867/2013
Date:
28/7/15
In
the matter between:
MADISON
PARK PROPERTIES 66 (PTY)
LTD
APPLICANT
and
TOP
STAR BRICKS CC
1
st
RESPODENT
STARCROW
59 CC
2
nd
RESPONDENT
SOMCA
93
CC
3
rd
RESPONDENT
J
U D G M E N T
HIEMSTRA
AJ
[1]
This is an opposed application for the amendment of a declaration.
BACKG
ROU N D
[2]
In setting out the background of this matter, I borrow liberally from
the Heads of Argument on behalf of the applicant, prepared
by Ms H.R.
Fourie. It is the following:
[3]
On 19 September 2013 the applicant issued an application for the
eviction of the respondents from commercial premises situated
at 456
Mitchell Street, Pretoria West (the premises), of
which the applicant is the owner and the respondents
are in
occupation. The application was opposed. On 5 May 2014 this court
ordered that the application be referred for trial, that
the Notice
of Motion stands as a simple sum mons and that applicant file
its declaration within 20 days.
[4]
Ishall henceforth refer to the parties as the plaintiff and the
defendants.
[5]
In compliance with the order, the plaintiff delivered a declaration.
The declaration sets out that on 7 February 2012 the plaintiff
concluded a partly written and partly oral agreement of lease with
first defendant in respect of the premises. The plaintiff was
at the
time not yet the registered owner of the premises, but registration
in its name was pending. The defendants were already
in occupation of
the premises. On 27 August 2012, the property was registered in the
name of the plaintiff. The second and third
defendants are subtenants
of the first defendant.
[6]
The declaration continues to set out the terms of the agreement of
lease. The terms included that the lease would endure on
a
month-to-month basis from 1 March 2012, pending the conclusion of a
formal written lease agreement within a reason able
time,
alternatively on registration of the property in the name of the
plaintiff. The formal agreement would regulate the further
lease
·of the premises and would pro-vide for the payment by the
first defendant of an amount of R1 million to the
plaintiff.
[7]
The plaintiff duly prepared a draft lease agreement and presented it
to the first defendant for consideration and signature.
The first
defendant failed to sign the draft or to propose amendments
[8]
On 21 November 2012 the plaintiff gave notice to the defendants of
cancellation of the lease agreement and demanded that the
defendants
vacate the premises by no later than 28 November 2012. On 4 July,
alternatively on 9 July 2013 the plaintiff gave further
notice to the
defendants to vacate the premises no later than 10 August 2013.
[9]
The declaration states that therefore the defendants' right to occupy
the premises terminated on 28 November 2012, alternatively
on 10
August 2013, alternatively on 23 September 2013. Despite demand, the
defendants have refused of failed to va cate the
premises.
[10]
The defendants gave notice of their intention to except against the
declaration on the grounds that it was vague and embarrassing
and/or
missed averments that were required to sustain the action.
THE
APPLICATION TO AMEND
[11]
The plaintiff now seeks to amend its declaration. The application
seeks to delete paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of
the
declaration and substituting them with new paragraphs 3, 4 and 5 of
the Notice of Intention to Amend. The paragraphs that are
sought to
be deleted are the ones that set out the lease agreement and its
ultimate cancellation by the plaintiff.
[12]
The new parag 3, 4 and 5 are as follows:
“
3.
The plaintiff is the owner of the immovable property situated at
Portion 1 of Erf 1875, Pretoria Township, Registration Division
JR,
Province of Gauteng, better known as 456 Mitchell
Street, Pretoria-West, Pretoria ('the
immovable prop erty').
4.
The defendants are in occupation
of the immovable
property.
5.
On
19 September
2013,
the
plaintiff
issued
an application
under
case
number 6086
7
1
2013
for
the
eviction of
the
defendants from
the
immovable
property. The
application was
opposed
and
on
5
May
2014
this
Honourable
Court
ordered
that
the
application
be
referred
for
trial,
the
notice
of
motion
stand
as
a
simple summons and that the applicant file its declaration within 20
days."
THE
OBJECTION
[13]
The defendants object to the proposed amendment. The grounds on which
the objection is founded are as follows:
"3.
The
Plaintiffs
intended
amendment
discloses
a
cause
of
action
that
substan
tially differs from the cause of action that the
Plaintiff/Applicant
relied
upon in
its Notice of Motion and annexures
thereto.
5.
If the Plaintiff's proposed
objection
was
to be effected,
the Plaintiffs
Declaration
will be excepiable
(sic)
on the grounds set out
hereinbefore."
[14]
The defendants enrolled its .exception to the original declaration
for argument on the same day as the application to amend.
Should I
disallow the proposed amend- ment, this would have been a convenient
course of action. Should I, however, allow the amendment,
the
exception will have no practical purpose.
THE
GRANTING
OF AMENDMENTS
[15]
The granting or refusal of an application for amendment of a pleading
is a matter for the discretion of the court, to be exercised
judicially in the light of all the facts and
circumstances
before it. The Supreme Court of Appeal said in
Geigy (Pfy)
Ltd
v
Lushof
Farms
(Pty) Ltd
1
:
"
..
.[T]he
practical
rule
adopted
seems
to be
that amendments
will always
be
allowed
unless the application
to amend
is
ma/a
fide or unless such
amendment
would cause an
injustice to
the
other
side
which
cannot
be
compensated by
costs,
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 it is sought to amend
was filed."
[16]
It is implied in the above
dictum
that an amendment may be
refused if the plead- ing, if amended, will be excipiable. To
allow an amendment that will render
the pleading excipiable will
cause an injustice or result in further unnecessary costs of an
exception.
THE
AVERMENTS REQUIRED TO SUSTAIN AN ACTION FOR EVICTION
[17]
It was held in
Chetty
v
Naidoo
2
that
"
The
owner,
in
instituting a
rei
vindicatio, need, therefore, do no more than allege and prove that he
is the owner and that the
defendant
is holding the
res
-
the onus being on
the defendant
to·allege and estab-
lish any right to continue to
hold against the owner.
...
But if he goes beyond
alleging
merely his ownership and the defendant being in
possession
...
other considerations
come into
play."
[18]
The submission on behalf of the defendants is that the declaration,
if amended would be excipiable. That is course not be correct
The
declaration, if amended, con- tains all the averments to sustain an
action for eviction as set out in
Chetty.
3
[19]
The case of the defendants is rather that the declaration, if
amended, would in- traduce a different cause of action. Ido not
agree. The allegation that there had been a lease which had been
terminated was not the cause of action pleaded in the decla- ration.
The cause of action was, and still is, the fact that the plaintiff
claims that it is the owner of the property and that the defendants
are in occupation thereof. It is not part of the cause of action that
the defendants at some stage had a right of posses- sion,
which right
had been terminated. These allegations were not necessary to sus-
tain a cause of action and might as well have been
omitted. It was
held in
Graham
v Ridley
4
that an allegation by a plaintiff who sues for ejectment, that he
had granted a lease to the defendant, which lease had been
terminated,
is merely a convenient way of anticipating the
defendant's plea that the latter is in possession by virtue of a
lease. Such a plea
would call for a replication that the lease is
terminated.
[20]
It was held in
Karim
V
Baccus
5
that allegations that the plaintiff had parted with - his
possession but had regained it, altered the cause of action. This was
rejected and overruled by the Appeal Court in
Chetty.
CONCLUSION
[21]
I therefore find that the declaration, if amended will not be
excipiable. I further find that the amendment does not introduce
a
different cause of action.
In
the result, I make the following order:
1.
The applicant is granted leave to amend its declaration as set
out in
the applicant's Notice of Intention to Amend its Declaration dated 27
June 2014;
2.
The respondents are ordered to pay the costs of this application.
.......................................
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard:
2 June 2015
Date
of judgment:
29 June 2015
Counsel
for the applicant:
Adv. H.R Fourie
Attorney
for the applicant:
Strydom & Bredenkamp
Inc
Park Nouveau
225 Veale Street Brooklyn
Pretoria
Tel: 012 460 1930
Fax: 012 460 8565
e-mail:
adriaan@lawsb.co.za
Ref: HENK
STRYDOM/ab/HM0419
Counsel
for the respondents: S.D.
Wagener SC
Attorney
for the respondents: Snyman De
Jager Inc
6
th
Floor,
Bureau Lane
Pretoria
Tel.: 012 663 1680
Fax: 086 536 5190
e-mail:
ansie@sdj.co.za
Ref.: Mr J.J.
Lombard/as/L343/12
1
2002
(2) SA 447 (SCA) at 462
2
1974
(3) SA 13 (A) at 20C
3
supra
4
1931
TPD 476
5
1946
NPD 721