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
>>
2014
>>
[2014] ZAGPPHC 114
|
|
Alanza Boerdery (EDMS) Beperk v Risseeuw N.O and Others (38325/13) [2014] ZAGPPHC 114 (20 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 38325/13
DATE:
20 MARCH 2014
In the matter
between:
ALANZA BOERDERY
(EDMS) BEPERK
....................................
Applicant
And
JACOBUS NICOLAAS
RISSEEUW NO
............................
First
Respondent
JACOBUS NICOLAAS
RISSEEUW NO
.......................
Second
Respondent
JAN CELLIERS
RISSEEUW NO
.....................................
Third
Respondent
GERHARD RISSEEUW
NO
...........................................
Fourth
Respondent
JUDGMENT
Tuchten J:
1 The applicant
brought motion proceedings for the ejectment of the Risseeuw Boerdery
Trust from a farm owned by the applicant.
The defendants are the
trustees of the Trust and are cited in their capacities as such.
2 The Deeds Office
description of the farm is “Gedeelte 43 van die plaas
Wolvenkraal ...” in the province of Limpopo.
Unfortunately a
typing error crept into the applicant’s papers. It described
the farm as “Gedeelte 34". The respondents
seized upon the
applicant’s error. They delivered an answering affidavit in
which they denied that they had had any dealings
with the applicant
in relation to Gedeelte 34. They made no reference to Gedeelte 43.
3 However, the
applicant and the first respondent, claiming to act with the
authority of the other respondents were, when the notice
of motion
for eviction in this issued, already locked in litigation in this
court, under case no. 36448/13. The respondents were
perfectly well
aware that the applicant had misdescribed the farm in the present
application. The dispute relates to the interpretation
and effect of
a written lease between the applicant and the first respondent,
claiming to represent the Trust. The lease contains
an option to buy
Gedeelte 43, the very farm from which the applicant seeks to evict
the Trust in this case. The first respondent
claims to have exercised
this option and in case no 36448/13 claims specific performance of
what he asserts are the present applicant’s
obligations arising
from the agreement of sale which he claims arose upon his exercise of
the option on behalf of the trust. The
present applicant noted
exceptions to the first respondent’s particulars of claim in
that case. The exceptions came before
me together with the present
case. I shall give judgment in both cases in the same session of
court.
4 When the
applicant’s attorneys realised they had made a mistake, the
applicant applied for the necessary amendment to substitute
the
correct Portion number for the wrong one. To add, as it were, insult
to injury, the respondents objected to the amendment and
opposed the
consequent application to amend on the ground that the applicant had
not adequately explained how it and its attorney
had made the mistake
in question. The attorney explained under oath that the mistake was a
“tikfout”.
5 In my view the
resistance to the amendment is wholly frivolous. A typing error
carries within its description a complete explanation.
In this case
the numbers of the Portion were transposed. Leave to amend must be
granted. That means, in accordance with rule 28(7),
that if the
applicant wishes to proceed with the amendment, the applicant must
deliver amended pages.
6 The next question
which arises is what must happen to the application for eviction,
which was also properly on the roll before
me. Counsel for the
respondents pointed to the fact that the respondents had dealt in
their answering affidavit only with the case
made by the applicant.
And that the case so made by the applicant related to a Portion in
respect of which the parties had not
contracted and which the
respondents said, perfectly truthfully, they were not occupying and
therefore could not be required to
vacate. Now that the applicant had
obtained leave to amend, counsel argued, his clients should be given
an opportunity to deal
with the claim as amended.
7 In strict law, in
my view, the respondents are correct in their contentions that the
matter should be postponed. I find the point,
and the entire approach
of the respondents consequent upon the mistake
I have described,
morally deplorable. But I do not sit in judgment upon the
respondents’ morals. Their point is good in law.
I must give
the respondents the further time for which they have asked. The main
application, for eviction, must be postponed.
8 Although I have
found that the respondents’ argument on time to respond is good
in law, that is not the end of the enquiry
in relation to costs. I
must consider who must pay the costs of the application for amendment
and the wasted costs arising from
the postponement of the application
for eviction.
9 I have found that
the objection to the amendment was entirely frivolous. The applicant
should never have been put to the expense
of an application for
amendment. It was quite obvious that there had been a mistake in the
description of the farm in the papers.
The respondents seized upon
this point to harass the applicant and delay the day the true issues
between the parties are resolved.
I disapprove of such conduct by
litigants and their lawyers. I shall mark my disapproval by ordering
the respondents to pay the
costs of the application for amendment and
the wasted costs arising from he postponement. In coming to this
conclusion I have not
overlooked the fact that the applicant, in
applying for an amendment, seeks an indulgence. Both sides retained
senior counsel.
The issues are weighty enough to justify the costs of
senior counsel.
10 Counsel for the
applicant asked, if a postponement was granted, for specific orders
relating to the filing of papers. I think
it would be appropriate to
give such directions.
11 I make the
following order:
1 The applicant is
granted leave to amend paragraph 1 its notice of motion by the
substitution of the expression “Gedeelte
34" by the
expression “Gedeelte 43".
2 The main
application for the eviction of the respondents is postponed sine
die.
3 The respondents
must deliver any further affidavits which they may wish to file
within 15 days of the date upon which the applicant
serves its
amended pages upon the respondents under rule 28(7).
4 The Risseeuw
Boerdery Trust, represented by its trustees, must pay the costs of
the application for amendment and the wasted costs
occasioned by the
postponement of the application for eviction, including the costs
consequent upon the employment of senior cc
NB Tuchten
Judge of the High
Court 19 March 2014