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[2014] ZAFSHC 151
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Apostolic Faith Mission of South Africa and Another v Moloi and Others (4702/2013) [2014] ZAFSHC 151 (11 September 2014)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 4702/2013
In
the matter between:
THE
APOSTOLIC FAITH MISSION OF
SOUTH
AFRICA
….........................................................................................................
First Applicant
TEBEJANE
ALFRED MLANGENI
…......................................................................
Second
Applicant
and
A.
A. MOLOI
…..............................................................................................................
First
Respondent
M
E MOLOI
…..........................................................................................................
Second
Respondent
T
A CHARLIE
…..........................................................................................................
Third
Respondent
P
P LESIA
…................................................................................................................
Fourth
Respondent
D
J MATELA
…............................................................................................................
Fifth
Respondent
I
V Y MOTSOENENG
….............................................................................................
Sixth
Respondent
G
T MOTSOENENG
…...........................................................................................
Seventh
Respondent
P
M HLALELE
…......................................................................................................
Eighth Respondent
B
M SELEVU
…...........................................................................................................
Ninth
Respondent
Me
NKWANE
…...........................................................................................................
Tenth
Respondent
S
NKWANE
….........................................................................................................
Eleventh
Respondent
B
RADEBE
….............................................................................................................
Twelve
Respondent
N
E MALKOANE
…...........................................................................................
Thirteenth Respondent
T
SETLABA
….....................................................................................................
Fourteenth
Respondent
L
S LENYEHELO
…................................................................................................
Fifteen
Respondent
JUDGMENT
BY:
MBHELE, AJ
HEARD
ON:
19 JUNE 2014
DELIVERED
ON:
11 SEPTEMBER 2014
[1]
This is an application in terms of Rule 28(4) for an amendment of
Notice of Motion filed on the 15
th
November 2013. A rule
nisi
was granted at the instance of the first applicant on the 16
th
November 2013 with a return date of the 30
th
January 2014.
[2]
The interim order required of the respondent to show cause why the
following order should not be made final:
2.1
That the respondents and/or anyone under their instruction be
interdicted and restrained from disturbing, alternatively, disrupting
in any manner whatsoever Sundays’ church service of the
applicant.
2.2
That the respondent and/or anyone under their instruction be
interdicted and restrained from threatening in any manner board
members of the applicant.
[3]
Paragraph 2.1 and 2.2 above shall operate as interim interdicts with
immediate effect.
[4]
The respondents, jointly and severally, the one paying the others to
be absolved to pay the costs thereof.
Background
[5]
On 30 January 2014 the 2014, the matter was postponed to 6 March
2014. On 6 March the application was postponed to 13 March.
On
13 March 2014, second applicant was granted leave to intervene in the
application and the rule
nisi
was extended until 15 May 2014.
On
the 28
th
March 2014 the second applicant filed a notice to amend the notice of
motion.
On
the 23
rd
April 2014 the first applicant withdrew its application against all
the respondents and the respondents delivered their answering
papers
in opposition of the second applicants’ application in terms of
rule 28.
[6]
The applicant seeks to amend the Notice of Motion in the following
manner:
By
deleting the whole of paragraph 3 and replacing it with the
following:
(3)
That pending the finalisation of an investigation into acts of
misconduct by the respondents or possible institution of disciplinary
steps against the respondents by the disciplinary body of The
Apostolic Faith Mission of South Africa, alternatively, the holding
of an elective General Meeting (AGM) whichever occurs first, that
prayers 2.1 and 2.2 shall operate as interim interdicts with
immediate effect
The
respondents filed a notice of objection on 22 April 2014 on
inter
alia
the following basis:
(i)
Paragraph 3 is already an interim order and
the proposed amendment seeks to vary an existing order.
(ii)
The proposed amendment seeks to extend the
life span of the interim order beyond the extended return day of the
rule
nisi
.
(iii)
The proposed amendment introduces a new
fact and matter which was not raised in the application by the first
applicant.
Rule
nisi
[7]
I requested parties to address me further on a Rule
nisi
that seemed to have lapsed.
[8]
There was an agreement between the parties that the rule
nisi
be regarded as having not lapsed.
Amendment
[9]
Rule 28 of the uniform rules regulates the procedure to be followed
for the amendment of a pleading.
In
Moolman v Estate Moolman and Another
1927 CPD 27
the court held that
“…
the
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is
mala
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.”
[10]
In
Rosenberg v Bitcom
1935 WLD 115
on 117 Greenberg J said:
“
Although
it has been stated that the granting of an amendment is an indulgence
to the party asking for it, it seems to me that at
any rate the
modern tendency of the courts lies in favour of an amendment whenever
such an amendment facilitates the proper ventilation
of the dispute
between the parties.”
[11]
In
Whittaker v Roos and Another
1911 TPD 1092
at 1102 Wessels J said:
“
This
court has the greatest latitude in granting amendments, and it is
very necessary that it should have. The object of the
Court is
to do justice between the parties. It is not the game we are
playing, in which, if some mistake is made, the forfeit
is claimed.
We are here for the purpose of seeing that we have a true account of
what actually took place, and we are not
going to give a decision
upon what we know to be wrong facts. It is presumed that when a
defendant pleads to a declaration he knows
what he is doing, and
that, when there is a certain allegation in the declaration, he knows
that he ought to deny it, and that,
if he does not do so, he is taken
to admit it. But we all know, at the same time, that mistakes
are made in pleadings, and
it would be a very grave injustice, if for
a slip of the pen, or error of judgment, or the misreading of
paragraph in pleadings
by counsel, litigants were to be mulcted in
heavy costs. That would be a gross scandal. Therefore,
the Court will not
look to technicalities, but will see what the real
position is between the parties.”
In
Rishton v Rishton
1912 TPD 718
at 719 it was said:
“
There
is, however, another principle in our practice, and that is to allow
a party, up to the very last stage of the case, the full
right to
amend, so that the Court may not be deceived or judgment may not be
wrongly given against the party, and also to enable
the Court to know
exactly the nature of the dispute and the facts of the dispute in a
particular case.”
The
observation in all cases
supra
is that amendment will only be refused if allowing it would cause
prejudice to the other party. The attitude of the Courts
is not
to close the door in the face of a litigant whose additional
information may assist the court to come to a just decision.
[12]
In
Morgan & Ramsay v Cornelius &
Hollis
1910 NPD at 262. Dobe
Wilson J said at 265:
“
In
my opinion the court ought to allow all such amendments as may be
necessary for the purpose of determining in an existing action
or
proceedings the real action between the parties. Personally I
see no objection to a new ground of action on defence being
stated by
way of amendment, nor should I in all circumstances object to
amendment merely because it goes the length of changing
the character
of the action, where that is necessary to determine the real question
between the parties.”
The
second applicant, when seeking leave to intervene in this matter,
told the court that the relief he is seeking would be substantially
on the same facts as stated by the first applicant who has since
withdrawn its application against the respondents.
[13]
Mr Tshabalala, on behalf of the respondents, argued that the
amendment of a notice of motion when a rule
nisi
has been granted is bad in law as it will have the effect of amending
the court order itself.
An
interim order is a court issued proclamation that is meant to be
effective only until a court has had a chance to hear a complete
case
and has entered a final order.
[14]
The proposed amendment does not seek to strike out the existing
interim order nor does it alter the same in the absence of
a specific
order directed at the interim order. The Notice of Motion as amended
will be adjudicated upon by the court for the purpose
of a final
order. Allowing the amendment will in my view not affect the existing
interim order.
[15]
In
Beng v Gossyn
1965 (3) SA 702
the court granted applicant leave to supplement his
petition where the cause of action upon which the applicant founded
his case
was not properly made out in his original affidavit but
there was an indication of these allegations upon which reliance was
made
in his replying affidavit, which discloses a new cause of
action.
[16]
Hofmeyer J said:
“
Na
my oordeel is die huidige in ieder geval ‘n tipe saak waar die
aansoek toegestaan moet word: Hoewel die oorsaak van
aksie
waarop die applikant wou steun nie behoorlik uitgemaak in in die
oorspronklike eedsverklaring nie, is daar tog ‘n aanduiding
van
die bewerings waarop nou gesteun word.”
[17]
The argument by the respondents cannot hold centre in the face of the
legal principles set out above and provisions of rule
28 of the
Uniform Rules.
[18]
Church is a place of worship where the highest level of order and
discipline must be maintained in order to protect the members’
right to freedom of religion.
[19]
The amendment sought by the second applicant seeks to narrow down the
prayers as set out in the notice of motion to a specific
future
event.
[20]
Disruption of church services is an undesirable phenomenon at any
given time. I do not see how the respondents will be prejudiced
by
the proposed amendment.
ORDER:
[21]
In the circumstances I give the following order:
1.
The second applicant is granted leave to amend the notice of motion
as per its notice in terms of Rule 28(4) filed on 28 March
2014.
2. Each party to pay
their own costs.
________________
N.
M. MBHELE, AJ
On behalf of the
applicant: Adv. Greyling
Instructed
by:
Duncan
Motaung Attorneys
BLOEMFONTEIN
On behalf of the
respondents: Adv. Tshabalala
Instructed
by:
Hill,
McHardy & Herbst
BLOEMFONTEIN