About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 122
|
|
Sun International Management Limited and Another v Georgious N.O. and Others (3125/2014) [2015] ZAFSHC 122 (25 June 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : 3125/2014
In
the matter between:-
SUN
INTERNATIONAL MANAGEMENT
LIMITED
1
st
Plaintiff
MANGAUNG
SUN PROPRIETARY
LIMITED
2
nd
Plaintiff
and
NICOLAS
GEORGIOU
N.O.
1
st
Defendant
MAUREEN
LYNETTE GEORGIOU N.O
.
2nd Defendant
JOE
CHEMALY
N.O.
3rd Defendant
HEARD
ON:
18 JUNE 2015
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
25 JUNE 2015
[1]
This is an opposed application to amend plaintiff’s particulars
of claim. Plaintiffs caused summons to be issued against
the
defendants on or about 10 July 2014 for payment of some R13 million.
In the particulars of claim plaintiffs referred
to a written
“Initial Agreement” of 28 July 2003. The terms of
the initial agreement are stated in paragraph
8 of the particulars of
claim. Plaintiffs also referred to a written “Operating
Management Agreement” which was
prepared during or about
September 2005 and the terms thereof on which plaintiffs rely are
stated in paragraph 12 of the particulars
of claim. In
paragraph 14 the plaintiffs allege that a tacit agreement came into
force between the parties and plead the
terms of the tacit agreement
in paragraph 15.
[2]
The defendants gave notice under Rule 23(1) of their intention to
except to the particulars of claim as being vague and embarrassing
on
9 February 2015. As a result thereof plaintiffs gave notice of
their intention to amend on 3 March 2015. The defendants
objected to the intended amendment by means of a notice dated 16
March 2015. Plaintiffs launched this application for leave
to
amend in terms of Rule 28(4) on 30 March 2015, seeking the court’s
leave to amend as set out in the notice dated 2 March
2015.
Defendants filed a notice to oppose this application on 15
April 2015.
[3]
Mr Hefer, for plaintiffs, says that the amendment seeks to clarify
the conduct on which the plaintiffs rely for the coming into
existence of their tacit agreement on which they rely. The
legal principles relating to amendments are set out in Mr Hefer’s
heads of argument. The granting or refusal of an application
for the amendment of a pleading is a matter for the discretion
of the
Court which is to be exercised judicially in the light of all the
facts and circumstances before the Court (
GMF
Kontrakteurs (Edms) Bpk and Another v Pretoria City Council
1978
(2) SA 219
(T) at 222B – D). The tendency of our courts
has been to allow amendments where this can be done without prejudice
to the other party (
GMF
Kontrakteurs (Edms) Bpk and Another v Pretoria City Council
(
supra
)
at 222F – 223C). The approach of the courts to amendments
has been stated in
Bankorp
Ltd v Anderson-Morshead
1997 (1) SA 251
(W) at 253 where Flemming DJP says at 253F that an
amendment will be granted if a party deems it necessary to bring its
real case
before court. In
Cross
v Ferreira
1950 (3) SA 443
(C) at 449G – H van Winsen AJ (as he then was)
said that, while the practice did not appear to be entirely uniform
on this
point, the weight of authority seems to favour the view that
if the pleading as sought to be amended would be excipiable, this
affords a ground upon which the court may in the exercise of its
discretion refuse the application for the amendment.
[4]
It is important to bear in mind that I am not now dealing with an
exception. An amendment should be refused on the ground
of
excipiability thereof only if it is clear that the amended pleading
will and not may be excipiable:
“
If
the excipiability of the pleading is merely arguable or can be cured
by the furnishing of particulars, then it is proper to grant
the
amendments where the other considerations are favourable.”
(Herbstein
and Van Winsen,
The
Civil Practice of the High Courts of South Africa
,
5
th
Edition (2009) Vol 1, 683).
[5]
The main thrust of the defendants’ objection is that the
amendment will render the particulars of claim excipiable. Mr
Hefer says the excipiability is merely arguable and can be cured by
furnishing further particulars, and in such circumstances it
is
proper to grant the amendment. Plaintiffs’ contention is
that a tacit agreement came into effect, and the terms
of the tacit
agreement correspond with the terms of the Operating Management
Agreement, and plaintiffs’ version is clear
and there is no
vagueness or embarrassment.
[6]
Mr Van Rhyn, for defendants points out that the predominant factor
which has shaped the courts’ policy regarding amendments
is a
positive endeavour to encourage a full and proper ventilation of the
real dispute between the parties, with reference to
Robinson
v Randfontein Estates G M Co Ltd
1925 AD 173
at 198. The defendants’ objection to the
proposed amendment mainly concerns the attempt to introduce a tacit
agreement,
apart from the Initial Agreement and the Operating
Management Agreement. Defendants contend that the amendment
seeks to vary,
and/or contradict the terms of those two written
agreements.
[7]
Mr Van Rhyn points out that the amendments sought by the plaintiffs
in the notice of amendment merely serve to rectify clerical
errors,
and defendants do not object to those corrections. The point Mr
van Rhyn makes is that the amendments do not address
the grounds
relied upon by the defendants in the rule 23(1) notice to remove the
cause for complaint, and therefore the proposed
amendments will be an
exercise in futility.
[8]
A central objection of the defendants is that the terms of the tacit
agreement as set out in paragraph 15 of the particulars
of claim
differ from the terms of the written Operating Management Agreement
contained in paragraph 8 of the particulars of claim.
The
objection is that plaintiffs do not aver that the Operating
Management Agreement purports to be the Final Agreement contemplated
in the Initial Agreement. Defendants say that they cannot
ascertain whether the conditions as set out in the Initial Agreement
were fulfilled or whether the Initial Agreement came to an end and if
so when. To this extent defendants contend that plaintiff’s
particulars of claim lack particularity and are vague.
[9]
Defendants contend that when an express contract is alleged (in this
case two written contracts) the terms of an alleged further
tacit
contract may not be pleaded nor may evidence to prove a tacit
contract be placed before the court, with reference to
Roos
v Engineering Fabricators (Edms) Bpk
1974
(3) SA 545
(A). The
Roos
case dealt with the situation where the plaintiff on appeal sought to
introduce a tacit contract where it had relied on a partly
written
and partly oral contract in the court
a
quo
.
In this case defendants allege that they cannot ascertain
whether any reliance is placed on the written contracts or whether
the written contacts were cancelled prior to the conclusion of the
tacit agreement.
[10]
The plaintiffs plead the tacit agreement in paragraph 14 of the
particulars of claim.
[11]
The parties to the two written agreements were as follows:
11.1
The Initial
Agreement
Sun
International SA (SISA) and The N Georgio Trust.
The N
Georgio Trust is the defendant in these proceedings, but SISA is not
a party to these proceedings, as pointed out in defendants’
Rule 23(1) notice.
11.2
The
Operating Management Agreement
The N
Georgio Trust and Sun International Management Limited and Mangaung
Sun (Pty) Ltd.
This
agreement has not been signed. The N Georgio Trust is the
defendant and the other two entities are the first and second
plaintiffs. The particulars of claim allege that the Operating
Management Agreement was prepared and furnished to the defendant
trust, and the parties have at all material times given effect to the
Operating Management Agreement. It would seem that,
because it
has not been signed, plaintiffs do not regard it as a written
agreement. Plaintiffs say that the parties have
acted according
to the terms of the Operating Management Agreement and quote its
terms as being those of the tacit agreement they
rely upon.
[12]
Mr van Rhyn contends that clause 18 of the Initial Agreement (POC1)
provides that the rights and obligations accorded to SISA
in that
agreement can be allocated to the plaintiffs. He says because
of that allocation, the plaintiffs have become parties
to POC1, and
it constitutes a written agreement between the plaintiffs and the
defendant. Mr Hefer says that POC1 gave rights
to the
plaintiffs, that is why it is attached. The plaintiffs did not
become parties to POC1. Mr Hefer’s submission
is
correct. The fact that the particulars of claim contain the
allegation in para 13.1 that the first plaintiff was a subsidiary,
affiliate, associate or nominee of SISA does not mean that the
plaintiffs allege that they became parties to POC1. POC2 was
not signed and is not described as a written contract by the
plaintiff in the particulars of claim. Plaintiffs do not rely
on any written contracts. Plaintiffs rely on the content of the
unsigned POC2 as being an embodiment of the tacit terms plaintiffs
rely upon.
[13]
With reference to
Pillay
and Another v Shaik and Others
2009 (4) SA 74
(SCA) Mr Van Rhyn submitted that a party can only rely
on
quasi
mutual
consent if the parties conducted themselves in terms of that
agreement. He further submitted with reference to Christie’s,
The
Law of Contract in South Africa
(6
th
Edition)
(2011)
174 that no tacit terms can be imported in contradiction to an
express term.
[14]
In this case the plaintiffs do not rely on any written contract, but
only on what they call a tacit contract, of which the
terms are
embodied in POC2. There is no reason to refuse the amendment.
The amendment does not introduce the tacit
agreement. The
particulars of claim in their original form already contained the
tacit agreement. It cannot be said
that the particulars of
claim as amended will be excipiable. The need for amendment was
brought about by mistakes made by
the plaintiff. It cannot be
said that the defendants acted in bad faith in opposing the amendment
or that opposition was
unreasonable (
Gcanga
v AA Mutual Insurance Association Ltd
1979 (3) SA 320
(ECD) at 328H – 329B).
ORDER
1.
Plaintiffs’ application to amend is granted.
2.
Plaintiffs are ordered to pay the costs of this
application.
____________
A.
KRUGER, J
On
behalf of plaintiffs:
Adv JJF Hefer
Instructed
by:
McIntyre & Van der
Post
BLOEMFONTEIN
On
behalf of defendants: Adv AJR Van Rhyn
SC
Instructed
by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
wm/